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Indian Aluminium Cables Limited Vs. State of Haryana | Madhya Pradesh High Court held that during the period of the exemption, the sales of niwar by a registered dealer were exempt from tax generally within the meaning of section 8(2A) of the Central Act, and, therefore, the assessees inter-State sales of niwar were exempt from tax under the Central Act. The expression "exempt only in specified circumstances or under specified conditions" occurring in the Explanation to section 8(2A) of the Central Act was held to mean such circumstances or conditions the non-existence or non-performance of which precludes the grant of exemption. In other words, if those circumstances do not exist or those conditions are not performed then the sales of goods cannot be exempted from tax even if they are effected by a class of dealers to whom exemption is granted and during the period for which exemption is granted.In the Madhya Pradesh case (supra) there was no dispute that the sales effected by the assessee fell under section 8(1) of the Central Act. The State Act granted exemption from sales tax on sales of niwar effected by a registered dealer. The exemption granted to sales by a registered dealer under the notification was without any restriction or limitation so far as sales by a registered dealer were concerned. Though the period of exemption was fixed, it was not regarded as a condition imposed in relation to the exemption. It was also contended there that because the exemption was granted to the registered dealers the exempt ion was granted to a class of dealers, and, therefore, it should be construed to be an exemption in specified circumstances or under specified conditions. The Court repelled the contention by stating that the exemption was to all registered dealers without any restriction or condition.9. The other decision on which the appellant relied is of the Allahabad High Court in Hindustan Safety Glass Works (P.) Ltd. v. The State of Uttar Pradesh &Anr.(1) In the Safety Glass Works case (supra) the company manufactured toughened glasses and mirrors in its factories. Under a notification issued by the State Government under the State Act sales of mirrors and safety glasses were liable to sales tax either at the point of sale by the importer of such goods or at the point of sale by the manufacturer thereof. Subsequently, a notification was issued by the State Government exempting toughened glasses and mirrors manufactured by the company at Allahabad from payment of sales tax for a period of three years. The company claimed that the turnover of sales of toughened glasses and mirrors manufactured by it, being generally exempt from tax under the State Act, was also not liable to Central Sales Tax because of the provisions contained in section 8(2A) of the Central Act. It was held that for purposes of section 8(2A) of the Central Act, sale of mirrors and toughened glasses manufactured by the company was under no condition and in no circumstance liable to be taxed in the hands of the company. The reasons given were that normally it will be taken that the sale of mirrors and toughened glasses by the company was exempt from to the generally unless it could be shown that such goods belonged to the class specified in the Explanation to section 8(2A) of the Central Act. As the toughening glasses and mirrors manufactured by the company did not fall in such a category the turnover of the sales of those goods in the hands of the company was not liable to tax under the Central Act.The stipulation in the notification in the Safety Glass Work case (supra) that the turnover of such sales would for a period of three years be exempt from payment of sales tax did not amount to exempting the turnover of such goods from tax under specified circumstances or specified conditions.10. Section 6 of the State Act does not speak of exemption, but deals with tax free goods. In other words, section 6 deals with specified goods on which n o tax is payable. Section S of the State Act deals with what has to be excluded from the taxable turnover of the dealer.11. Both the sections deal with goods which do not suffer from sales tax. A Section 8(2A) of the Central Act exempts good s from inter State sales tax where a tax law of the State has exempted them from sales tax. The Explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions. The provisions contained in section 5 (2) (a) (iv) of the State Act exclude sales which are made under specified circumstances or specified conditions. The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted under the Indian Electricity Act, 1910. The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy. If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax. General exemption means that r the goods should be totally exempt from tax before similar exemption from the levy of Central sales tax can become available. Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.The contention of the appellant that the words "in the generation or distribution of such energy" in section 5(2)(a)(iv) of the State Act are descriptive of goods is unacceptable. The expression "generation or distribution of such energy" specifies the condition under which exemption is granted.12. For these reasons we are of opinion that the High Court was correct in holding that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act. | 0[ds]Both the sections deal with goods which do not suffer from sales tax. A Section 8(2A) of the Central Act exempts good s from inter State sales tax where a tax law of the State has exempted them from sales tax. The Explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions. The provisions contained in section 5 (2) (a) (iv) of the State Act exclude sales which are made under specified circumstances or specified conditions. The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted underthe Indian Electricity Act, 1910. The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy. If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax. General exemption means that r the goods should be totally exempt from tax before similar exemption from the levy of Central sales tax can become available. Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.The contention of the appellant that the words "in the generation or distribution of such energy" in section 5(2)(a)(iv) of the State Act are descriptive of goods is unacceptable. The expression "generation or distribution of such energy" specifies the condition under which exemption isthese reasons we are of opinion that the High Court was correct in holding that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act. | 0 | 2,320 | 358 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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Madhya Pradesh High Court held that during the period of the exemption, the sales of niwar by a registered dealer were exempt from tax generally within the meaning of section 8(2A) of the Central Act, and, therefore, the assessees inter-State sales of niwar were exempt from tax under the Central Act. The expression "exempt only in specified circumstances or under specified conditions" occurring in the Explanation to section 8(2A) of the Central Act was held to mean such circumstances or conditions the non-existence or non-performance of which precludes the grant of exemption. In other words, if those circumstances do not exist or those conditions are not performed then the sales of goods cannot be exempted from tax even if they are effected by a class of dealers to whom exemption is granted and during the period for which exemption is granted.In the Madhya Pradesh case (supra) there was no dispute that the sales effected by the assessee fell under section 8(1) of the Central Act. The State Act granted exemption from sales tax on sales of niwar effected by a registered dealer. The exemption granted to sales by a registered dealer under the notification was without any restriction or limitation so far as sales by a registered dealer were concerned. Though the period of exemption was fixed, it was not regarded as a condition imposed in relation to the exemption. It was also contended there that because the exemption was granted to the registered dealers the exempt ion was granted to a class of dealers, and, therefore, it should be construed to be an exemption in specified circumstances or under specified conditions. The Court repelled the contention by stating that the exemption was to all registered dealers without any restriction or condition.9. The other decision on which the appellant relied is of the Allahabad High Court in Hindustan Safety Glass Works (P.) Ltd. v. The State of Uttar Pradesh &Anr.(1) In the Safety Glass Works case (supra) the company manufactured toughened glasses and mirrors in its factories. Under a notification issued by the State Government under the State Act sales of mirrors and safety glasses were liable to sales tax either at the point of sale by the importer of such goods or at the point of sale by the manufacturer thereof. Subsequently, a notification was issued by the State Government exempting toughened glasses and mirrors manufactured by the company at Allahabad from payment of sales tax for a period of three years. The company claimed that the turnover of sales of toughened glasses and mirrors manufactured by it, being generally exempt from tax under the State Act, was also not liable to Central Sales Tax because of the provisions contained in section 8(2A) of the Central Act. It was held that for purposes of section 8(2A) of the Central Act, sale of mirrors and toughened glasses manufactured by the company was under no condition and in no circumstance liable to be taxed in the hands of the company. The reasons given were that normally it will be taken that the sale of mirrors and toughened glasses by the company was exempt from to the generally unless it could be shown that such goods belonged to the class specified in the Explanation to section 8(2A) of the Central Act. As the toughening glasses and mirrors manufactured by the company did not fall in such a category the turnover of the sales of those goods in the hands of the company was not liable to tax under the Central Act.The stipulation in the notification in the Safety Glass Work case (supra) that the turnover of such sales would for a period of three years be exempt from payment of sales tax did not amount to exempting the turnover of such goods from tax under specified circumstances or specified conditions.10. Section 6 of the State Act does not speak of exemption, but deals with tax free goods. In other words, section 6 deals with specified goods on which n o tax is payable. Section S of the State Act deals with what has to be excluded from the taxable turnover of the dealer.11. Both the sections deal with goods which do not suffer from sales tax. A Section 8(2A) of the Central Act exempts good s from inter State sales tax where a tax law of the State has exempted them from sales tax. The Explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions. The provisions contained in section 5 (2) (a) (iv) of the State Act exclude sales which are made under specified circumstances or specified conditions. The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted under the Indian Electricity Act, 1910. The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy. If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax. General exemption means that r the goods should be totally exempt from tax before similar exemption from the levy of Central sales tax can become available. Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.The contention of the appellant that the words "in the generation or distribution of such energy" in section 5(2)(a)(iv) of the State Act are descriptive of goods is unacceptable. The expression "generation or distribution of such energy" specifies the condition under which exemption is granted.12. For these reasons we are of opinion that the High Court was correct in holding that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act.
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### Explanation:
Both the sections deal with goods which do not suffer from sales tax. A Section 8(2A) of the Central Act exempts good s from inter State sales tax where a tax law of the State has exempted them from sales tax. The Explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions. The provisions contained in section 5 (2) (a) (iv) of the State Act exclude sales which are made under specified circumstances or specified conditions. The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted underthe Indian Electricity Act, 1910. The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy. If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax. General exemption means that r the goods should be totally exempt from tax before similar exemption from the levy of Central sales tax can become available. Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.The contention of the appellant that the words "in the generation or distribution of such energy" in section 5(2)(a)(iv) of the State Act are descriptive of goods is unacceptable. The expression "generation or distribution of such energy" specifies the condition under which exemption isthese reasons we are of opinion that the High Court was correct in holding that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act.
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UNION OF INDIA & ORS Vs. EX. SEP. R. MUNUSAMY | if no note of it was made at the time of the individuals acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. (c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. (emphasis supplied) 20. Rule 14(b) of the Entitlement Rules relied upon in Rajbir Singh (supra) is not attracted in this case, because the Respondent was not discharged on account of any disease, ailment or disability, but for administrative reasons. The Rule is only attracted when a disease leads to an individuals discharge or death. Such disease is ordinarily to be deemed to have arisen in service, if no note of it was made at the time of the individuals acceptance for military service, but not always. In any case, the presumption under Rule 14(b) of the Entitlement Rules is rebuttable. If medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. There was no direction on the Review Medical Board to give any opinion as to the question of whether the ailment of the Respondent could or could not have been detected at the time of his recruitment. Furthermore, the mere fact that an ailment or disease may have arisen in service does not mean that the ailment or disease is attributable to service conditions. 21. In the instant case, as observed above, the discharge of the Respondent was not on account of any disability or disease but on administrative grounds and such discharge was not questioned for two decades. The judgment in Rajbir Singh (supra) or the judgments relied upon in Rajbir Singh (supra) have no application in the facts and circumstances of this case. The learned Tribunal noted red ink entries in the service records of the Respondent on the ground of unauthorized absence, but arrived at the purported finding in effect that the absence of the Respondent was only on account of his ailment/disability. Such finding is patently conjectural, and not based on any materials on record. 22. Moreover, even in the case of discharge on account of any disability or disease, the authorities might dispute that such disability or disease was caused or aggravated by military service. The Medical Board might, for reasons to be stated, give an opinion that the disease could not have been detected on medical examination prior to appointment, in which case the disease/disability would not be deemed to have arisen during service. 23. Moreover, as provided in Rule 14(c) of the Entitlement Rules, if a disease were accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. 24. Even though, the Tribunal accepted that there might be cases, where an ailment/disease could be wholly unrelated to military service and the denial of disability pension could be justified on that ground, the Tribunal overlooked the mandate of Rule 14(c) of the Entitlement Rules. From the Report of the Resurvey Medical Board, as extracted in the impugned judgment and order, it does not appear that the Review Medical Board gave any opinion as contemplated in Rule 14(b) or 14(c) of the Entitlement Rules. There were no materials before the Tribunal, on the basis of which the Tribunal could have been satisfied that, the conditions of service of the Respondent contributed to his disability and/or ailment. The Review Medical Board only assessed the extent of the disability of the Respondent and the approximate duration of the disability, but not the cause thereof. 25. What exactly is the reason for a disability or ailment may not be possible for anyone to establish. Many ailments may not be detectable at the time of medical check-up, particularly where symptoms occur at intervals. Reliance would necessarily have to be placed on expert medical opinion based on an in depth study of the cause and nature of an ailment/disability including the symptoms thereof, the conditions of service to which the soldier was exposed and the connection between the cause/aggravation of the ailment/disability and the conditions and/or requirements of service. The Tribunal patently erred in law in proceeding on the basis of a misconceived notion that any ailment or disability of a soldier, not noted at the time of recruitment but detected or diagnosed at the time of his discharge or earlier, would entitle the soldier to disability pension on the presumption that the disability was attributable to military service, whether or not the disability led to his discharge, and the onus was on the employer to prove otherwise, which the Appellants in this case had failed to do. 26. In this case, since the discharge was on administrative grounds and not medical grounds, there was no occasion for the Release Medical Board or for that matter, the Resurvey Medical Board to give any opinion as to cause and nature of the ailment of the Respondent of Right Partial Seizure with Secondary Generalisation 345 as diagnosed, whether such disability/ailment could reasonably have gone undetected at the time of appointment of the Respondent, in terms of Rule 14(b) of the Entitlement Rules. The Appellants did not get the opportunity to show that the ailment was not caused or aggravated by military service in terms of Rule 14(b) and 14(c) of the Entitlement Rules referred to above. The claim of the Respondent for disability pension should not have been entertained and that too, 20 years after his discharge. | 1[ds]11. At the cost of repetition, it is reiterated that the Respondent was discharged under Rule 13(3) III(v) of the Army Rules, 1954 on administrative grounds as an undesirable soldier and not on the ground of medical disability. Any opinion of the Release Medical Board held on 30th January 1997 with regard to the ailment of the Respondent does not entitle the Respondent to disability pension, as the ailment did not lead to his discharge. In any case, even as per the opinion of the Release Medical Board, the disability, if any, of the Respondent was not attributable to military service. The Tribunal recorded that the Release Medical Board had in Paragraph 3(d) stated Disability constitutional in origin, unrelated to service.12. For over 20 years from the date of the discharge, the Respondent did not challenge his discharge on the administrative ground of being an undesirable soldier. His discharge on administrative grounds could not have been challenged after two decades.13. In the considered opinion of this Court, the Tribunal fell in error in passing its order dated 2nd November 2018 directing the Appellants to convene a Resurvey/Review Medical Board at the Military Hospital, Chennai or a designated hospital for the purpose of examining the applicant and assessing the degree of disability due to Right Partial Seizure with Secondary Generalisation 345 and the probable duration of disability. The tenor of the order itself shows that even the Tribunal realized that accurate medical opinion could not have been obtained after lapse of 30 years from the date of recruitment of the Respondent and after 20 years from the date of his discharge. The Tribunal, therefore, sought assessment of probable duration of disability.15. Significantly, even the Resurvey Medical Board did not opine that the disability, if any, of the Respondent was either caused or aggravated by military service. Even otherwise, the question of entitlement of soldier to disability pension cannot be determined on the basis of medical examination conducted 20 years after his discharge.16. The Tribunal does not sit in appeal over the expert opinion of a Medical Board holding that the disability suffered by a soldier was not attributable to or aggravated by military service. There was no reason for the Tribunal not to accept the opinion of the Release Medical Board held on 30th January 1997 and no reasons have been disclosed. In the absence of any finding of infirmity in the decision making process adopted by the Release Medical Board, there could be no reason to direct the constitution of a Resurvey Medical Board, and in any case, not after two decades from the date of discharge.17. The Tribunal relied on the judgment of this Court dated 13th February 2015 in Civil Appeal No.2904 of 2011 (Union of India v. Rajbir Singh (2015) 12 SCC 264) heard and disposed of along with 23 other appeals. In the aforesaid case, this Court dismissed appeals arising out of orders passed by the Armed Forces Tribunal and upheld directions for grant of disability pension to the concerned ex-soldiers.18. In Rajbir Singh (supra), it was not in dispute that the Respondents in all the appeals had been invalidated out of service on account of medical disability as shown in the chart set out in the judgment. The judgment in Rajbir Singh (supra) was rendered in the context of invalidation from service on medical grounds, having regard to the provisions of the Entitlement Rules for Casualty Pensionary Awards, 1982, hereinafter referred to as the Entitlement Rules.20. Rule 14(b) of the Entitlement Rules relied upon in Rajbir Singh (supra) is not attracted in this case, because the Respondent was not discharged on account of any disease, ailment or disability, but for administrative reasons. The Rule is only attracted when a disease leads to an individuals discharge or death. Such disease is ordinarily to be deemed to have arisen in service, if no note of it was made at the time of the individuals acceptance for military service, but not always. In any case, the presumption under Rule 14(b) of the Entitlement Rules is rebuttable. If medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. There was no direction on the Review Medical Board to give any opinion as to the question of whether the ailment of the Respondent could or could not have been detected at the time of his recruitment. Furthermore, the mere fact that an ailment or disease may have arisen in service does not mean that the ailment or disease is attributable to service conditions.21. In the instant case, as observed above, the discharge of the Respondent was not on account of any disability or disease but on administrative grounds and such discharge was not questioned for two decades. The judgment in Rajbir Singh (supra) or the judgments relied upon in Rajbir Singh (supra) have no application in the facts and circumstances of this case. The learned Tribunal noted red ink entries in the service records of the Respondent on the ground of unauthorized absence, but arrived at the purported finding in effect that the absence of the Respondent was only on account of his ailment/disability. Such finding is patently conjectural, and not based on any materials on record.24. Even though, the Tribunal accepted that there might be cases, where an ailment/disease could be wholly unrelated to military service and the denial of disability pension could be justified on that ground, the Tribunal overlooked the mandate of Rule 14(c) of the Entitlement Rules. From the Report of the Resurvey Medical Board, as extracted in the impugned judgment and order, it does not appear that the Review Medical Board gave any opinion as contemplated in Rule 14(b) or 14(c) of the Entitlement Rules. There were no materials before the Tribunal, on the basis of which the Tribunal could have been satisfied that, the conditions of service of the Respondent contributed to his disability and/or ailment. The Review Medical Board only assessed the extent of the disability of the Respondent and the approximate duration of the disability, but not the cause thereof.25. What exactly is the reason for a disability or ailment may not be possible for anyone to establish. Many ailments may not be detectable at the time of medical check-up, particularly where symptoms occur at intervals. Reliance would necessarily have to be placed on expert medical opinion based on an in depth study of the cause and nature of an ailment/disability including the symptoms thereof, the conditions of service to which the soldier was exposed and the connection between the cause/aggravation of the ailment/disability and the conditions and/or requirements of service. The Tribunal patently erred in law in proceeding on the basis of a misconceived notion that any ailment or disability of a soldier, not noted at the time of recruitment but detected or diagnosed at the time of his discharge or earlier, would entitle the soldier to disability pension on the presumption that the disability was attributable to military service, whether or not the disability led to his discharge, and the onus was on the employer to prove otherwise, which the Appellants in this case had failed to do.26. In this case, since the discharge was on administrative grounds and not medical grounds, there was no occasion for the Release Medical Board or for that matter, the Resurvey Medical Board to give any opinion as to cause and nature of the ailment of the Respondent of Right Partial Seizure with Secondary Generalisation 345 as diagnosed, whether such disability/ailment could reasonably have gone undetected at the time of appointment of the Respondent, in terms of Rule 14(b) of the Entitlement Rules. The Appellants did not get the opportunity to show that the ailment was not caused or aggravated by military service in terms of Rule 14(b) and 14(c) of the Entitlement Rules referred to above. The claim of the Respondent for disability pension should not have been entertained and that too, 20 years after his discharge. | 1 | 3,090 | 1,502 | ### 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:
if no note of it was made at the time of the individuals acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. (c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. (emphasis supplied) 20. Rule 14(b) of the Entitlement Rules relied upon in Rajbir Singh (supra) is not attracted in this case, because the Respondent was not discharged on account of any disease, ailment or disability, but for administrative reasons. The Rule is only attracted when a disease leads to an individuals discharge or death. Such disease is ordinarily to be deemed to have arisen in service, if no note of it was made at the time of the individuals acceptance for military service, but not always. In any case, the presumption under Rule 14(b) of the Entitlement Rules is rebuttable. If medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. There was no direction on the Review Medical Board to give any opinion as to the question of whether the ailment of the Respondent could or could not have been detected at the time of his recruitment. Furthermore, the mere fact that an ailment or disease may have arisen in service does not mean that the ailment or disease is attributable to service conditions. 21. In the instant case, as observed above, the discharge of the Respondent was not on account of any disability or disease but on administrative grounds and such discharge was not questioned for two decades. The judgment in Rajbir Singh (supra) or the judgments relied upon in Rajbir Singh (supra) have no application in the facts and circumstances of this case. The learned Tribunal noted red ink entries in the service records of the Respondent on the ground of unauthorized absence, but arrived at the purported finding in effect that the absence of the Respondent was only on account of his ailment/disability. Such finding is patently conjectural, and not based on any materials on record. 22. Moreover, even in the case of discharge on account of any disability or disease, the authorities might dispute that such disability or disease was caused or aggravated by military service. The Medical Board might, for reasons to be stated, give an opinion that the disease could not have been detected on medical examination prior to appointment, in which case the disease/disability would not be deemed to have arisen during service. 23. Moreover, as provided in Rule 14(c) of the Entitlement Rules, if a disease were accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. 24. Even though, the Tribunal accepted that there might be cases, where an ailment/disease could be wholly unrelated to military service and the denial of disability pension could be justified on that ground, the Tribunal overlooked the mandate of Rule 14(c) of the Entitlement Rules. From the Report of the Resurvey Medical Board, as extracted in the impugned judgment and order, it does not appear that the Review Medical Board gave any opinion as contemplated in Rule 14(b) or 14(c) of the Entitlement Rules. There were no materials before the Tribunal, on the basis of which the Tribunal could have been satisfied that, the conditions of service of the Respondent contributed to his disability and/or ailment. The Review Medical Board only assessed the extent of the disability of the Respondent and the approximate duration of the disability, but not the cause thereof. 25. What exactly is the reason for a disability or ailment may not be possible for anyone to establish. Many ailments may not be detectable at the time of medical check-up, particularly where symptoms occur at intervals. Reliance would necessarily have to be placed on expert medical opinion based on an in depth study of the cause and nature of an ailment/disability including the symptoms thereof, the conditions of service to which the soldier was exposed and the connection between the cause/aggravation of the ailment/disability and the conditions and/or requirements of service. The Tribunal patently erred in law in proceeding on the basis of a misconceived notion that any ailment or disability of a soldier, not noted at the time of recruitment but detected or diagnosed at the time of his discharge or earlier, would entitle the soldier to disability pension on the presumption that the disability was attributable to military service, whether or not the disability led to his discharge, and the onus was on the employer to prove otherwise, which the Appellants in this case had failed to do. 26. In this case, since the discharge was on administrative grounds and not medical grounds, there was no occasion for the Release Medical Board or for that matter, the Resurvey Medical Board to give any opinion as to cause and nature of the ailment of the Respondent of Right Partial Seizure with Secondary Generalisation 345 as diagnosed, whether such disability/ailment could reasonably have gone undetected at the time of appointment of the Respondent, in terms of Rule 14(b) of the Entitlement Rules. The Appellants did not get the opportunity to show that the ailment was not caused or aggravated by military service in terms of Rule 14(b) and 14(c) of the Entitlement Rules referred to above. The claim of the Respondent for disability pension should not have been entertained and that too, 20 years after his discharge.
### Response:
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### Explanation:
suffered by a soldier was not attributable to or aggravated by military service. There was no reason for the Tribunal not to accept the opinion of the Release Medical Board held on 30th January 1997 and no reasons have been disclosed. In the absence of any finding of infirmity in the decision making process adopted by the Release Medical Board, there could be no reason to direct the constitution of a Resurvey Medical Board, and in any case, not after two decades from the date of discharge.17. The Tribunal relied on the judgment of this Court dated 13th February 2015 in Civil Appeal No.2904 of 2011 (Union of India v. Rajbir Singh (2015) 12 SCC 264) heard and disposed of along with 23 other appeals. In the aforesaid case, this Court dismissed appeals arising out of orders passed by the Armed Forces Tribunal and upheld directions for grant of disability pension to the concerned ex-soldiers.18. In Rajbir Singh (supra), it was not in dispute that the Respondents in all the appeals had been invalidated out of service on account of medical disability as shown in the chart set out in the judgment. The judgment in Rajbir Singh (supra) was rendered in the context of invalidation from service on medical grounds, having regard to the provisions of the Entitlement Rules for Casualty Pensionary Awards, 1982, hereinafter referred to as the Entitlement Rules.20. Rule 14(b) of the Entitlement Rules relied upon in Rajbir Singh (supra) is not attracted in this case, because the Respondent was not discharged on account of any disease, ailment or disability, but for administrative reasons. The Rule is only attracted when a disease leads to an individuals discharge or death. Such disease is ordinarily to be deemed to have arisen in service, if no note of it was made at the time of the individuals acceptance for military service, but not always. In any case, the presumption under Rule 14(b) of the Entitlement Rules is rebuttable. If medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. There was no direction on the Review Medical Board to give any opinion as to the question of whether the ailment of the Respondent could or could not have been detected at the time of his recruitment. Furthermore, the mere fact that an ailment or disease may have arisen in service does not mean that the ailment or disease is attributable to service conditions.21. In the instant case, as observed above, the discharge of the Respondent was not on account of any disability or disease but on administrative grounds and such discharge was not questioned for two decades. The judgment in Rajbir Singh (supra) or the judgments relied upon in Rajbir Singh (supra) have no application in the facts and circumstances of this case. The learned Tribunal noted red ink entries in the service records of the Respondent on the ground of unauthorized absence, but arrived at the purported finding in effect that the absence of the Respondent was only on account of his ailment/disability. Such finding is patently conjectural, and not based on any materials on record.24. Even though, the Tribunal accepted that there might be cases, where an ailment/disease could be wholly unrelated to military service and the denial of disability pension could be justified on that ground, the Tribunal overlooked the mandate of Rule 14(c) of the Entitlement Rules. From the Report of the Resurvey Medical Board, as extracted in the impugned judgment and order, it does not appear that the Review Medical Board gave any opinion as contemplated in Rule 14(b) or 14(c) of the Entitlement Rules. There were no materials before the Tribunal, on the basis of which the Tribunal could have been satisfied that, the conditions of service of the Respondent contributed to his disability and/or ailment. The Review Medical Board only assessed the extent of the disability of the Respondent and the approximate duration of the disability, but not the cause thereof.25. What exactly is the reason for a disability or ailment may not be possible for anyone to establish. Many ailments may not be detectable at the time of medical check-up, particularly where symptoms occur at intervals. Reliance would necessarily have to be placed on expert medical opinion based on an in depth study of the cause and nature of an ailment/disability including the symptoms thereof, the conditions of service to which the soldier was exposed and the connection between the cause/aggravation of the ailment/disability and the conditions and/or requirements of service. The Tribunal patently erred in law in proceeding on the basis of a misconceived notion that any ailment or disability of a soldier, not noted at the time of recruitment but detected or diagnosed at the time of his discharge or earlier, would entitle the soldier to disability pension on the presumption that the disability was attributable to military service, whether or not the disability led to his discharge, and the onus was on the employer to prove otherwise, which the Appellants in this case had failed to do.26. In this case, since the discharge was on administrative grounds and not medical grounds, there was no occasion for the Release Medical Board or for that matter, the Resurvey Medical Board to give any opinion as to cause and nature of the ailment of the Respondent of Right Partial Seizure with Secondary Generalisation 345 as diagnosed, whether such disability/ailment could reasonably have gone undetected at the time of appointment of the Respondent, in terms of Rule 14(b) of the Entitlement Rules. The Appellants did not get the opportunity to show that the ailment was not caused or aggravated by military service in terms of Rule 14(b) and 14(c) of the Entitlement Rules referred to above. The claim of the Respondent for disability pension should not have been entertained and that too, 20 years after his discharge.
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Devidas And Others Vs. Shrishailappa And Others | that property also the three branches were divided and it was since the partition of their tenancy-in-common. It was the case of the plaintiffs that the property was not divided by metes and bounds, as it could not be, pending the settlement of the disputes.11. After the case reached the High Court after remand, counsel for the appellants raised an argument about non-joinder of Parvatewa- step-mother of the plaintiff. It was urged that the suit as framed was defective and was bound to fail. Parvatewa was undoubtedly interested in the mortgagee right and was not joined as a party to the suit. But no objection as to non-joinder was raised in the trial court. After the finding of the trial court was received, Parvatewa applied to be joined as a party respondent in the appeal and that application was granted by the High Court. Relying upon the application and the order passed by the High Court, counsel for the appellants urged that the suit filed by the plaintiffs was not properly constituted because all persons having an interest in the mortgage security were not joined as parties within the period of limitation prescribed for a suit to enforce the mortgage. The partition of 1939 was between three branches of Rachappa, Shivappa and Basavanappa, and there is no evidence that the joint family status between members of these three branches inter se was severed. Plaintiff No. 1 was the manager of the branch of Basavanappa and when he filed the suit for enforcement of the mortgage, he must be deemed to have filed it as manager of that branch and the allegations in the plaint especially in paragraph 4 make it abundantly clear that the suit was filed on behalf of the branch of Basavanappa. Plaintiff No. 1 therefore represented all the members of that branch having an interest in the property.12. In Guruvayya Gowda v. Dattatraya Anant, ILR 28 Bom 11, it was held that the question of the right of a manager to sue in that capacity in one of authority, if the other co-sharers are adults, and the right to insist on the other coparceners being brought on the record is for the benefit of the defendant to insure himself against further litigation and is therefore dependent on the objection being taken at an early stage, the objection on the score of want of authorisation being one of a character which it is clearly open to the defendant to waive. Parvatewa was in the suit as constituted not a necessary party. It is true that she was interested in the mortgage security and could have been joined as a proper party; but failure to join a person who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of S. 22 of the Indian Limitation Act. The rule that a person who ought to have been joined as a plaintiff to the suit and is not made a party will entail dismissal of the suit, if the suit as regards him be barred by limitation when he is joined, has no application to non-joinder of proper parties. In Guruvayyas case, ILR 28 Bom 11, a suit to recover possession of a house was originally brought by two plaintiffs, the second plaintiff being described as the manager of the family. At a late stage of the suit, defendants raised an objection that the other members of the family had not been joined. The trial court allowed the application filed by the other members to be joined as parties and decreed the suit; but the appellate court dismissed the suit holding that it was barred because of S. 22 of the Limitation Act. The High Court held that S. 22 of the Limitation Act does not in itself purport to determine directly whether the joinder of the parties after the institution of a suit in all cases necessarily involves the bar of limitation if the period prescribed for such a suit has then expired. Such a result must depend upon whether the joinder was necessary to enable the court to award such relief as may be given in the suit as framed. If fresh parties are merely joined for the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination of the date of the institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit and will not attract the application of the general provisions of the Limitation Act.13. Plaintiff No. 1 did not describe himself as a manager in the plaint; but failure to so describe himself is not decisive of the question whether the suit was instituted by him in his capacity as a manager. It must depend upon the circumstances of each case whether the suit was instituted by the manager in his personal capacity or as representing the family. In paragraph 4 of the plaint, it was averred by the plaintiffs that in the consideration for the mortgage, they had a third share, that defendants 5 to 8 had a third share and defendants 9 and 10 had the remaining share. These averments clearly indicate that according to the plaintiffs there was no division between the members of each of the individual branches and that the shares of the branches collectively were determined. Plaintiff No. 1 was the only adult member in his branch and he must be presumed to be the manager. The suit in these circumstances must be regarded as instituted by plaintiff No, 1 in his capacity as manager and he must be deemed to represent all the members of his branch of the family, males as well as females. Addition to the suit of any member of the branch to which the plaintiff belonged would only mean setting out the name of such a person eo nomine. | 0[ds]It appears from entries in the record of rights that Rachappa received at the partition lands producing annually 86 bags of paddy, defendants 5 to 8 received lands producing 92 bags of paddy and Basalingappa received for his share lands producing 89 bags of paddy. It also appears from the village Panchayat extracts that the family was possessed in 1938-39, to 30 houses which stood in Rachappas name as manager and the total rental of those houses was Rs. 1,262/-. These 30 houses were also divided : 16 houses were allotted to defendants 5 to 8. 10 houses to Rachappa and 3 houses to the plaintiffs and this division was not shown to be unequal.is true that Rachappa stated that a tippan of the family properties was made at the time of partition, but he also stated that the tippan was not with him. Defendant No. 5 - Mallappa -stated that Basalingappa (father of the plaintiffs) had prepared a tippan but signatures were not taken thereon and it remained with Basalingappa. He further stated that the "tippan was not worth preserving". The plaintiffs stated that the tippan was not with them. If in the course of the trial, the Court is satisfied that a document having an important bearing on the dispute which is pending trial is withheld by a party, an inference adverse to the party withholding the document that if produced, the document would not support that partys case may properly arise.But there is no evidence on the record to show that the tippan was with the plaintiffs or within their power and it was withheld form the Court. Basalingappa - the plaintiffs father - is dead; Rachappa and Mallappa stated that the tippan was not with them, and in the absence of any evidence to show that the tippan was with the plaintiffs or other person in the same interest as the plaintiffs, and it was not produced, we think that the trail Court was right in refusing to raise an adverse inference against the plaintiffs. It may also be observed that the high Court examined the evidence in the light of an adverse inference against the plaintiffs and still accepted the evidence of Maflappa. It is also true that out of the four Panchas who assisted in making the partition two were alive at the date of the trial but they were not examined. We do not think that failure to examine the Panchas by itself is a circumstance which should be sufficient to negative the case of the plaintiffs. Counsel for the appellants it right in contending that Rachappa had made statements in the course of execution proceedings commenced by Gurappa suggesting that he was the sole owner of the mortgage right and his testimony to the contrary at the trial wasstatements made by Rachappa are inconsistent with the testimony given by him in the course of the trial in the suit. If the success of the plaintiffs case depended largely upon the testimony of Rachappa having regard to the inconsistent statements made by him, the plaintiffs case may have failed. But the evidence of the plaintiffs is supported by the evidence of defendant No. 5 and the division of the remaining properties in 1939. Nothing has been elicited in the evidence which would suggest that the story of defendant No. 5 is unreliable. It is true that this witness was not examined before the case was remanded but that in our judgment in not a ground for discarding hisis true that the mutation entries made in 1939 in respect of lands in these three villages were not produced. But the trial court took the view that these lands belonged to the joint family and had fallen to the share of Rachappa at the partition. It appears from the record of rights entries that a majority of the lands in Tivoli were mutated in the name of Rachappa under one entry. Similarly, the lands in Kupadgeri were also mutated under one entry. This would indicate in the light of the evidence of Mallappa that all these lands had fallen to the share of Rachappa under one transaction and even in the absence of mutation entries an inference may reasonably be made that mutation was pursuant to the partition. There is no evidence that Rachappa was, apart from the property of the joint family, possessed of any other property with the aid of which he could have purchased these properties. It is true that in respect of villages Badas and Itagi even the record of rights extracts for the year 1939-40 were not produced; but the trial judge accepted the evidence of defendant No. 5 that these properties had fallen to the share of Rachappa. On behalf of the appellants no attempt was made to controvert this statement. On the materials placed before him, the trial judge came to the conclusion that the lands in the five villages of Chappagaon, Tivoli, Kupadgeri, Badas and Itagi were properties belonging to the joint family and at the partition they had fallen to the share of Rachappa and that finding was approved by the High Court. We would not be justified in an appeal with special leave in discarding that finding because some other evidence which could have been brought before the court in support thereof was notpartition of 1939 was between three branches of Rachappa, Shivappa and Basavanappa, and there is no evidence that the joint family status between members of these three branches inter se was severed. Plaintiff No. 1 was the manager of the branch of Basavanappa and when he filed the suit for enforcement of the mortgage, he must be deemed to have filed it as manager of that branch and the allegations in the plaint especially in paragraph 4 make it abundantly clear that the suit was filed on behalf of the branch of Basavanappa. Plaintiff No. 1 therefore represented all the members of that branch having an interest in the property.Plaintiff No. 1 did not describe himself as a manager in the plaint; but failure to so describe himself is not decisive of the question whether the suit was instituted by him in his capacity as a manager. It must depend upon the circumstances of each case whether the suit was instituted by the manager in his personal capacity or as representing the family. In paragraph 4 of the plaint, it was averred by the plaintiffs that in the consideration for the mortgage, they had a third share, that defendants 5 to 8 had a third share and defendants 9 and 10 had the remaining share. These averments clearly indicate that according to the plaintiffs there was no division between the members of each of the individual branches and that the shares of the branches collectively were determined. Plaintiff No. 1 was the only adult member in his branch and he must be presumed to be the manager. The suit in these circumstances must be regarded as instituted by plaintiff No, 1 in his capacity as manager and he must be deemed to represent all the members of his branch of the family, males as well as females. Addition to the suit of any member of the branch to which the plaintiff belonged would only mean setting out the name of such a person eo nomine. | 0 | 4,877 | 1,302 | ### Instruction:
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that property also the three branches were divided and it was since the partition of their tenancy-in-common. It was the case of the plaintiffs that the property was not divided by metes and bounds, as it could not be, pending the settlement of the disputes.11. After the case reached the High Court after remand, counsel for the appellants raised an argument about non-joinder of Parvatewa- step-mother of the plaintiff. It was urged that the suit as framed was defective and was bound to fail. Parvatewa was undoubtedly interested in the mortgagee right and was not joined as a party to the suit. But no objection as to non-joinder was raised in the trial court. After the finding of the trial court was received, Parvatewa applied to be joined as a party respondent in the appeal and that application was granted by the High Court. Relying upon the application and the order passed by the High Court, counsel for the appellants urged that the suit filed by the plaintiffs was not properly constituted because all persons having an interest in the mortgage security were not joined as parties within the period of limitation prescribed for a suit to enforce the mortgage. The partition of 1939 was between three branches of Rachappa, Shivappa and Basavanappa, and there is no evidence that the joint family status between members of these three branches inter se was severed. Plaintiff No. 1 was the manager of the branch of Basavanappa and when he filed the suit for enforcement of the mortgage, he must be deemed to have filed it as manager of that branch and the allegations in the plaint especially in paragraph 4 make it abundantly clear that the suit was filed on behalf of the branch of Basavanappa. Plaintiff No. 1 therefore represented all the members of that branch having an interest in the property.12. In Guruvayya Gowda v. Dattatraya Anant, ILR 28 Bom 11, it was held that the question of the right of a manager to sue in that capacity in one of authority, if the other co-sharers are adults, and the right to insist on the other coparceners being brought on the record is for the benefit of the defendant to insure himself against further litigation and is therefore dependent on the objection being taken at an early stage, the objection on the score of want of authorisation being one of a character which it is clearly open to the defendant to waive. Parvatewa was in the suit as constituted not a necessary party. It is true that she was interested in the mortgage security and could have been joined as a proper party; but failure to join a person who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of S. 22 of the Indian Limitation Act. The rule that a person who ought to have been joined as a plaintiff to the suit and is not made a party will entail dismissal of the suit, if the suit as regards him be barred by limitation when he is joined, has no application to non-joinder of proper parties. In Guruvayyas case, ILR 28 Bom 11, a suit to recover possession of a house was originally brought by two plaintiffs, the second plaintiff being described as the manager of the family. At a late stage of the suit, defendants raised an objection that the other members of the family had not been joined. The trial court allowed the application filed by the other members to be joined as parties and decreed the suit; but the appellate court dismissed the suit holding that it was barred because of S. 22 of the Limitation Act. The High Court held that S. 22 of the Limitation Act does not in itself purport to determine directly whether the joinder of the parties after the institution of a suit in all cases necessarily involves the bar of limitation if the period prescribed for such a suit has then expired. Such a result must depend upon whether the joinder was necessary to enable the court to award such relief as may be given in the suit as framed. If fresh parties are merely joined for the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination of the date of the institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit and will not attract the application of the general provisions of the Limitation Act.13. Plaintiff No. 1 did not describe himself as a manager in the plaint; but failure to so describe himself is not decisive of the question whether the suit was instituted by him in his capacity as a manager. It must depend upon the circumstances of each case whether the suit was instituted by the manager in his personal capacity or as representing the family. In paragraph 4 of the plaint, it was averred by the plaintiffs that in the consideration for the mortgage, they had a third share, that defendants 5 to 8 had a third share and defendants 9 and 10 had the remaining share. These averments clearly indicate that according to the plaintiffs there was no division between the members of each of the individual branches and that the shares of the branches collectively were determined. Plaintiff No. 1 was the only adult member in his branch and he must be presumed to be the manager. The suit in these circumstances must be regarded as instituted by plaintiff No, 1 in his capacity as manager and he must be deemed to represent all the members of his branch of the family, males as well as females. Addition to the suit of any member of the branch to which the plaintiff belonged would only mean setting out the name of such a person eo nomine.
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adverse to the party withholding the document that if produced, the document would not support that partys case may properly arise.But there is no evidence on the record to show that the tippan was with the plaintiffs or within their power and it was withheld form the Court. Basalingappa - the plaintiffs father - is dead; Rachappa and Mallappa stated that the tippan was not with them, and in the absence of any evidence to show that the tippan was with the plaintiffs or other person in the same interest as the plaintiffs, and it was not produced, we think that the trail Court was right in refusing to raise an adverse inference against the plaintiffs. It may also be observed that the high Court examined the evidence in the light of an adverse inference against the plaintiffs and still accepted the evidence of Maflappa. It is also true that out of the four Panchas who assisted in making the partition two were alive at the date of the trial but they were not examined. We do not think that failure to examine the Panchas by itself is a circumstance which should be sufficient to negative the case of the plaintiffs. Counsel for the appellants it right in contending that Rachappa had made statements in the course of execution proceedings commenced by Gurappa suggesting that he was the sole owner of the mortgage right and his testimony to the contrary at the trial wasstatements made by Rachappa are inconsistent with the testimony given by him in the course of the trial in the suit. If the success of the plaintiffs case depended largely upon the testimony of Rachappa having regard to the inconsistent statements made by him, the plaintiffs case may have failed. But the evidence of the plaintiffs is supported by the evidence of defendant No. 5 and the division of the remaining properties in 1939. Nothing has been elicited in the evidence which would suggest that the story of defendant No. 5 is unreliable. It is true that this witness was not examined before the case was remanded but that in our judgment in not a ground for discarding hisis true that the mutation entries made in 1939 in respect of lands in these three villages were not produced. But the trial court took the view that these lands belonged to the joint family and had fallen to the share of Rachappa at the partition. It appears from the record of rights entries that a majority of the lands in Tivoli were mutated in the name of Rachappa under one entry. Similarly, the lands in Kupadgeri were also mutated under one entry. This would indicate in the light of the evidence of Mallappa that all these lands had fallen to the share of Rachappa under one transaction and even in the absence of mutation entries an inference may reasonably be made that mutation was pursuant to the partition. There is no evidence that Rachappa was, apart from the property of the joint family, possessed of any other property with the aid of which he could have purchased these properties. It is true that in respect of villages Badas and Itagi even the record of rights extracts for the year 1939-40 were not produced; but the trial judge accepted the evidence of defendant No. 5 that these properties had fallen to the share of Rachappa. On behalf of the appellants no attempt was made to controvert this statement. On the materials placed before him, the trial judge came to the conclusion that the lands in the five villages of Chappagaon, Tivoli, Kupadgeri, Badas and Itagi were properties belonging to the joint family and at the partition they had fallen to the share of Rachappa and that finding was approved by the High Court. We would not be justified in an appeal with special leave in discarding that finding because some other evidence which could have been brought before the court in support thereof was notpartition of 1939 was between three branches of Rachappa, Shivappa and Basavanappa, and there is no evidence that the joint family status between members of these three branches inter se was severed. Plaintiff No. 1 was the manager of the branch of Basavanappa and when he filed the suit for enforcement of the mortgage, he must be deemed to have filed it as manager of that branch and the allegations in the plaint especially in paragraph 4 make it abundantly clear that the suit was filed on behalf of the branch of Basavanappa. Plaintiff No. 1 therefore represented all the members of that branch having an interest in the property.Plaintiff No. 1 did not describe himself as a manager in the plaint; but failure to so describe himself is not decisive of the question whether the suit was instituted by him in his capacity as a manager. It must depend upon the circumstances of each case whether the suit was instituted by the manager in his personal capacity or as representing the family. In paragraph 4 of the plaint, it was averred by the plaintiffs that in the consideration for the mortgage, they had a third share, that defendants 5 to 8 had a third share and defendants 9 and 10 had the remaining share. These averments clearly indicate that according to the plaintiffs there was no division between the members of each of the individual branches and that the shares of the branches collectively were determined. Plaintiff No. 1 was the only adult member in his branch and he must be presumed to be the manager. The suit in these circumstances must be regarded as instituted by plaintiff No, 1 in his capacity as manager and he must be deemed to represent all the members of his branch of the family, males as well as females. Addition to the suit of any member of the branch to which the plaintiff belonged would only mean setting out the name of such a person eo nomine.
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UNION OF INDIA AND OTHERS Vs. N MURUGESAN ETC | 36. There is no inordinate delay in approaching the Court as the respondent was under the bona fide impression and the legitimate expectation that since the rules do not permit a tenure-based appointment, he is to continue till the date of superannuation. In fact, the respondent made multiple representations to the appellants seeking rectification in the terms of his appointment letter. A mere delay in approaching the employer by way of representations and the High Court would not constitute estoppel, especially when the terms are not in consonance with the rules, as held in the judgment of this Court in Somesh Thapliyal Vs. HNB Garhwal University, 2021 SCC Online SC 659. DISCUSSION: 37. We have already dealt with the principles of law that may have a bearing on this case. There is no element of an unequal bargaining power involved. Nobody has forced the respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure. 38. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research. As noted earlier, there is certainly an overwhelming public interest involved. The employer, has a load of discretion available. In the absence of any arbitrariness, one cannot question its wisdom. After all, a decision has been taken at the highest level. We cannot infer that materials have not been placed before taking the decision. The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment. 39. There is a marked difference between the assessments made during the respondents tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Honble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The rules as perused and understood by us do not prohibit a tenure appointment. In the absence of any prohibition and mandatory mode of appointment, the appellants decision in going for a tenure appointment is perfectly in order. 40. We find, much water has already flown under the bridge. The private respondent has already been appointed in 2016 after following the due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years of service, knows its functioning very well. Thus, in our considered view, the order passed by the Division Bench cannot be sustained in the eye of the law. 41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal V. HNB Garhwal University, 2021 SCC OnLine SC 659. We are of the view that it is not a case in point. In the said decision, rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application. 42. On reading the appointment order, we could not identify the existence of automatic extension. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the ACC also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities. The respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before ACC, we believe that there may not be any need for such approval for two reasons. Firstly, the first appellant found that the respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by ACC would have been warranted. We may also note that all the appellants, including the Honble Minister, have approved the subsequent decision to go for a fresh recruitment by taking note of the larger public interest. | 0[ds]27. We would like to quote the following judgments for better appreciation and understanding of the said principle: Nagubai Ammal v. B. Shama Rao, 1956 SCR 451:But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd. [(1921) 2 KB 608], and in particular, the observations of Scrutton, LJ, at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes, L.J.: Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act. The observations of Scrutton, LJ on which the appellants rely are as follows: A plaintiff is not permitted to approbate and reprobate. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election — namely, that no party can accept and reject the same instrument: Ker v. Wauchope [(1819) 1 Bli 1, 21] : Douglas-Menzies v. Umphelby [(1908) AC 224, 232] . The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction. It is clear from the above observations that the maxim that a person cannot approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsburys Laws of England, Vol. XIII, p. 464, para 512: On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it. State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144:22. The doctrine of approbate and reprobate is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. V. MR. P. Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC 1216 ]). 23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329 ] .) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683 ] this Court has observed as under: (SCC pp. 687-88, para 10) 10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. 25. The Supreme Court in Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd. [Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. 26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had. Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470:I. Approbate and reprobate 15. A party cannot be permitted to blow hot-blow cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593 ] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216 ] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC 713 ] , Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 : AIR 2011 SC 1869 ] , Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT (2012) 9 SC 260 ] .] 16. Thus, it is evident that the doctrine of election is based on the rule of estoppel—the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had. ARTICE 226 OF THE CONSTITUTION OF INDIA: 28. We would not dwell deep into the extraordinary and discretionary nature of relief under Article 226 of the Constitution of India. This principle is to be extended much more when an element of undue delay, laches and acquiescence is involved. The following decisions of this Court would suffice: UP Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 :8. Our attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya [(1996) 6 SCC 267 : 1996 SCC (L&S) 1488] . In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the state approached this Court and this Court after considering the matter observed as under: (SCC p. 268) Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub- sections (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay. 9. Similarly in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] this Court reaffirmed the rule that if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] . The appellants desperate attempt to redo the seniority is not amenable to judicial review at this belated stage. 10. In Union of India v. C.K. Dharagupta [(1997) 3 SCC 395 : 1997 SCC (L&S) 821] it was observed as follows: (SCC p. 398, para 9) 9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] . In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief. 11. In Govt. of WB v. Tarun K. Roy [(2004) 1 SCC 347 : 2004 SCC (L&S) 225] their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) 34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar [State of WB v. Debdas Kumar, 1991 Supp (1) SCC 138 : 1991 SCC (L&S) 841 : (1991) 17 ATC 261]. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law. • Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC 295 : 24. As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant Company. It is well settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extraordinary remedy under Article 226 of the Constitution, that he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant. 25. Under the English law, an application for leave for judicial review should be made promptly. If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant. Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favour of such applicant or not. (Vide R. v. Essex County Council [1993 COD 344] .) 26. In R. v. Dairy Produce Quota Tribunal, ex p Caswell [(1990) 2 AC 738 : (1990) 2 WLR 1320 : (1990) 2 All ER 434 (HL)] , AC at p. 749, the House of Lords stated [Ed.: Quoting from OReilly v. Mackman, (1982) 3 All ER 1124 at p. 1131a-b.] : (All ER p. 441a-b) The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. 27. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [1874 LR 5 PC 221 : 22 WR 492] , thus: (LR pp. 239-40) Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy. (emphasis supplied) 28. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110 : (1969) 2 SCR 824 ] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : (1970) 2 SCR 697 ] this Court ruled that even in cases of violation or infringement of fundamental rights, a writ court may take into account delay and laches on the part of the petitioner in approaching the court. And if there is gross or unexplained delay, the court may refuse to grant relief in favour of such petitioner. State of J&K v. R.K. Zalpuri, (2015) 15 SCC 602:20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168 ] , wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus: (SCC p. 175, para 30) 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. 21. In this regard reference to a passage from Karnataka Power Corpn. Ltd. v. K. Thangappan [Karnataka Power Corpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791] would be apposite: (SCC p. 325, para 6) 6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. After so stating the Court after referring to the authority in State of M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 ] restated the principle articulated in earlier pronouncements, which is to the following effect: (SCC p. 326, para 9) 9. … the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 22. In State of Maharashtra v. Digambar [State of Maharashtra v. Digambar, (1995) 4 SCC 683 ] a three-Judge Bench laid down that: (SCC p. 692, para 19) 19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a persons entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct. 23. Recently in Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] , it has been ruled thus: (SCC p. 117, para 16) 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant—a litigant who has forgotten the basic norms, namely, procrastination is the greatest thief of time and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of the writ court to exercise the discretion. In Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] it has been ruled that: (SCC pp. 359-60, para 12) 12. … Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. And again: (SCC p. 360, para 14) 14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Controller of Imports and Exports [Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185 ] , Collector (LA) v. Katiji [Collector (LA) v. Katiji, (1987) 2 SCC 107 : 1989 SCC (Tax) 172] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598 ] , Dayal Singh v. Union of India [Dayal Singh v. Union of India, (2003) 2 SCC 593 ] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56] .) 29. The aforesaid principle is also required to be adopted while considering a case involving approbation and reprobation. DOCTRINE OF FAIRNESS: 30. The doctrine of fairness is inbuilt in every employer and employee relationship. The said doctrine has to be applied after the relationship come into being rather than at the stage of recruitment. While dealing with recruitment, on the question of suitability and adequacy, substantial discretion is appropriately conferred on the employer. At that stage, the question is with respect to the need of the employer to complete a particular type of work. In an employer and employee relationship, the doctrine of fairness has to be applied with more vigour when it involves an instrumentality of the state. Therefore, a State is not expected to act adversely to the interest of the employee, and any discrimination should be a valid one. Ultimately, one has to see the overwhelming public interest as every action of the instrumentality of the state is presumed to be so. While applying the said principle, one has to be conscious of the fact that there may not be a legitimate expectation on the part of an employee as against the statute. We would like to refer to the following judgment of this court on the above principle. Assistant Excise Commissioner and Others v. Issac Peter and Other, Issac Peter ; Assistant Excise Commissioner, (1994) 4 SCC 104:26. Learned counsel for respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which state is a party. It is submitted that the state cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory — at least to the extent of previous years supplies — by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the state is not able to supply so, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the state which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi- judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract — or rather more so. It is one thing to say that a contract — every contract — must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the state. They are not prepared to apply the very same rule in converse case, i.e., where the state has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the state suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay [(1989) 3 SCC 293] it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not say that the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of UP [(1991) 1 SCC 212 : 1991 SCC (L&S) 742] was a case of mass termination of District Government Counsel in the State of UP It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the state, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the state. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the state does not guarantee profit to the licensees in such contracts. WORKING RULES : 31. We have already discussed the qualification qua the post of Director-General. Recruitment to the post of Director-General is to be made under the working rules either directly or on deputation. This is on an all-India basis through a duly constituted Search-cum-Selection Committee. The only exception is by way of a contractual appointment which is for a very brief and temporary period, which can be appointed by the President, CPRI, with the approval of the Government of India. 32. The rules per se do not prohibit a tenure appointment. The definition of direct recruitment would mean recruitment through a process stipulated under the rules. Therefore, by no stretch of the imagination, one can interpret that all direct recruitments are to be made by regular employment. Therefore, direct recruitment can also be made for filing up the post on a tenure basis. Hence, in the absence of any statutory bar under the rules, a tenure appointment made through direct recruitment by following the due procedure cannot be termed as contrary to law. In a direct recruitment the appointment on a regular or tenure basis is the discretion of the employer, especially when the rules do not prohibit. Rule 48 speaks of the age of superannuation for a regular employee, which will be the completion of sixty years. There is no difficulty in appreciating the said rule, which deals with a regular employee alone and therefore can have no application while dealing with an appointment made on a tenure basis. After all, a Court of law cannot give a different status to an employee than the one which was conferred and accepted especially when the same is not prohibited under the rules. SUBMISSIONS OF THE PARTIES: SUBMISSIONS OF THE APPELLANTS: 33. The learned Additional Solicitor General appearing for the appellants submitted that the relief sought by the respondent cannot be granted on the ground of delay, laches, and acquiescence. Similarly, the principle governing approbation and reprobation would also disentitle the relief, especially when Article 226 of the Constitution is invoked. The rules do not prohibit a tenure- based appointment. The respondent made a request only after enjoying his tenure near the end of the period. It was also only made for continuance till the date of superannuation. The impugned order passed by the appellants is only a relieving order. The performance assessment under the rules after the first year or subsequent thereto has nothing to do with the assessment made for re- appointment. The initial appointment itself was by way of re-employment. The appointment order clearly states that the respondent is appointed for an initial tenure of five years or until further orders and re-appointment will be based on suitability. Clause 48 of the rules is only applicable to regular employees, indicating the upper age limit to remain in service and thus, cannot be an enabling one to a tenure-based appointee. The recommendation of the Search- Cum-Selection Committee and by way of the cabinet note is not binding while considering the tenure of the respondent. All the materials were placed before the ACC, and thereafter, a conscious decision was taken on both occasions. Suitability and adequacy are the discretion of the employer alone. There is no arbitrariness involved in not considering the extension. The Division Bench has not considered the materials in the correct perspective. 34. On the relief sought by the respondent, it is submitted that even the period of superannuation is over, and the private respondent has been selected on merit on the recommendation of the Search-cum-Selection Committee. No specific plea has been raised with respect to his continuance as the representation was made on the ground that the respondent should be considered as a regular employee. Thus, the appeals filed by the respondents are also to be dismissed. SUBMISSIONS BY THE RESPONDENTS: 35. Mr. Prashant Bhushan, in his own inimitable style, submitted that the Division Bench has gone through the files while recording its findings which do not warrant any interference. There is a clear violation of Articles 14 and 16 of the Constitution of India. On the first occasion, there is nothing to infer that relevant materials have been considered, and on the second, ACC has not been put on notice on the adverse report. The adverse report itself has been prepared by persons junior to the respondent, and therefore, the same ought to be eschewed. There is no power or authority in passing the impugned termination order. Since the very case of the respondent is that he should be continued till the date of his superannuation, the impugned order passed by the appellants is not a mere relieving order but a termination. The Division Bench has not considered the other relief sought by the respondent, and therefore in light of the findings rendered, the writ petitions are liable to be allowed in toto. There are no statutory rules for a tenure appointment, and hence the respondent should have been treated as a regular employee. The annual performance reports of the respondent found him to be outstanding. The President, CPRI- GC, does not have the power to terminate, as the ACC being the appointing authority, alone has the right. 36. There is no inordinate delay in approaching the Court as the respondent was under the bona fide impression and the legitimate expectation that since the rules do not permit a tenure-based appointment, he is to continue till the date of superannuation. In fact, the respondent made multiple representations to the appellants seeking rectification in the terms of his appointment letter. A mere delay in approaching the employer by way of representations and the High Court would not constitute estoppel, especially when the terms are not in consonance with the rules, as held in the judgment of this Court in Somesh Thapliyal Vs. HNB Garhwal University, 2021 SCC Online SC 659. DISCUSSION: 37. We have already dealt with the principles of law that may have a bearing on this case. There is no element of an unequal bargaining power involved. Nobody has forced the respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure. 38. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research. As noted earlier, there is certainly an overwhelming public interest involved. The employer, has a load of discretion available. In the absence of any arbitrariness, one cannot question its wisdom. After all, a decision has been taken at the highest level. We cannot infer that materials have not been placed before taking the decision. The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment. 39. There is a marked difference between the assessments made during the respondents tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Honble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The rules as perused and understood by us do not prohibit a tenure appointment. In the absence of any prohibition and mandatory mode of appointment, the appellants decision in going for a tenure appointment is perfectly in order. 40. We find, much water has already flown under the bridge. The private respondent has already been appointed in 2016 after following the due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years of service, knows its functioning very well. Thus, in our considered view, the order passed by the Division Bench cannot be sustained in the eye of the law. 41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal V. HNB Garhwal University, 2021 SCC OnLine SC 659. We are of the view that it is not a case in point. In the said decision, rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application. 42. On reading the appointment order, we could not identify the existence of automatic extension. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the ACC also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities. The respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before ACC, we believe that there may not be any need for such approval for two reasons. Firstly, the first appellant found that the respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by ACC would have been warranted. We may also note that all the appellants, including the Honble Minister, have approved the subsequent decision to go for a fresh recruitment by taking note of the larger public interest. 43. In light of the discussion made, the appeals filed by the respondent deserve to be dismissed. Once we hold that the respondent is not entitled to any extension, the consequential benefits cannot be granted. Thus, both on the assessment of facts and the concept of law, we are constrained to hold that the respondent is not entitled to any relief. 44. Accordingly, the appeals filed by the appellants stand allowed by setting aside the impugned order under challenge, and as a consequence, the appeals filed by the respondent are dismissed. No costs.
t it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd. [(1921) 2 KB 608], and in particular, the observations of Scrutton, LJ, at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes, L.J.:Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act.The observations of Scrutton, LJ on which the appellants rely are as follows:A plaintiff is not permitted to approbate and reprobate. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election — namely, that no party can accept and reject the same instrument: Ker v. Wauchope [(1819) 1 Bli 1, 21] : Douglas-Menzies v. Umphelby [(1908) AC 224, 232] . The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.It is clear from the above observations that the maxim that a person cannot approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsburys Laws of England, Vol. XIII, p. 464, para 512:On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it. State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144:22. The doctrine of approbate and reprobate is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. V. MR. P. Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC 1216 ]). 23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329 ] .) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683 ] this Court has observed as under: (SCC pp. 687-88, para 10) 10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. 25. The Supreme Court in Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd. [Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. 26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had. Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470:I. Approbate and reprobate 15. A party cannot be permitted to blow hot-blow cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593 ] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216 ] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC 713 ] , Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 : AIR 2011 SC 1869 ] , Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT (2012) 9 SC 260 ] .] 16. Thus, it is evident that the doctrine of election is based on the rule of estoppel—the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had. ARTICE 226 OF THE CONSTITUTION OF INDIA: 28. We would not dwell deep into the extraordinary and discretionary nature of relief under Article 226 of the Constitution of India. This principle is to be extended much more when an element of undue delay, laches and acquiescence is involved. The following decisions of this Court would suffice: UP Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 :8. Our attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya [(1996) 6 SCC 267 : 1996 SCC (L&S) 1488] . In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the state approached this Court and this Court after considering the matter observed as under: (SCC p. 268) Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub- sections (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay. 9. Similarly in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] this Court reaffirmed the rule that if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] . The appellants desperate attempt to redo the seniority is not amenable to judicial review at this belated stage. 10. In Union of India v. C.K. Dharagupta [(1997) 3 SCC 395 : 1997 SCC (L&S) 821] it was observed as follows: (SCC p. 398, para 9) 9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] . In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief. 11. In Govt. of WB v. Tarun K. Roy [(2004) 1 SCC 347 : 2004 SCC (L&S) 225] their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) 34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar [State of WB v. Debdas Kumar, 1991 Supp (1) SCC 138 : 1991 SCC (L&S) 841 : (1991) 17 ATC 261]. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law. • Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC 295 : 24. As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant Company. It is well settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extraordinary remedy under Article 226 of the Constitution, that he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant. 25. Under the English law, an application for leave for judicial review should be made promptly. If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant. Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favour of such applicant or not. (Vide R. v. Essex County Council [1993 COD 344] .) 26. In R. v. Dairy Produce Quota Tribunal, ex p Caswell [(1990) 2 AC 738 : (1990) 2 WLR 1320 : (1990) 2 All ER 434 (HL)] , AC at p. 749, the House of Lords stated [Ed.: Quoting from OReilly v. Mackman, (1982) 3 All ER 1124 at p. 1131a-b.] : (All ER p. 441a-b) The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. 27. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [1874 LR 5 PC 221 : 22 WR 492] , thus: (LR pp. 239-40) Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy. (emphasis supplied) 28. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110 : (1969) 2 SCR 824 ] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : (1970) 2 SCR 697 ] this Court ruled that even in cases of violation or infringement of fundamental rights, a writ court may take into account delay and laches on the part of the petitioner in approaching the court. And if there is gross or unexplained delay, the court may refuse to grant relief in favour of such petitioner. State of J&K v. R.K. Zalpuri, (2015) 15 SCC 602:20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168 ] , wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus: (SCC p. 175, para 30) 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. 21. In this regard reference to a passage from Karnataka Power Corpn. Ltd. v. K. Thangappan [Karnataka Power Corpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791] would be apposite: (SCC p. 325, para 6) 6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. After so stating the Court after referring to the authority in State of M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 ] restated the principle articulated in earlier pronouncements, which is to the following effect: (SCC p. 326, para 9) 9. … the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 22. In State of Maharashtra v. Digambar [State of Maharashtra v. Digambar, (1995) 4 SCC 683 ] a three-Judge Bench laid down that: (SCC p. 692, para 19) 19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a persons entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct. 23. Recently in Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] , it has been ruled thus: (SCC p. 117, para 16) 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant—a litigant who has forgotten the basic norms, namely, procrastination is the greatest thief of time and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of the writ court to exercise the discretion. In Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] it has been ruled that: (SCC pp. 359-60, para 12) 12. … Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. And again: (SCC p. 360, para 14) 14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Controller of Imports and Exports [Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185 ] , Collector (LA) v. Katiji [Collector (LA) v. Katiji, (1987) 2 SCC 107 : 1989 SCC (Tax) 172] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598 ] , Dayal Singh v. Union of India [Dayal Singh v. Union of India, (2003) 2 SCC 593 ] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56] .) 29. The aforesaid principle is also required to be adopted while considering a case involving approbation and reprobation. DOCTRINE OF FAIRNESS: 30. The doctrine of fairness is inbuilt in every employer and employee relationship. The said doctrine has to be applied after the relationship come into being rather than at the stage of recruitment. While dealing with recruitment, on the question of suitability and adequacy, substantial discretion is appropriately conferred on the employer. At that stage, the question is with respect to the need of the employer to complete a particular type of work. In an employer and employee relationship, the doctrine of fairness has to be applied with more vigour when it involves an instrumentality of the state. Therefore, a State is not expected to act adversely to the interest of the employee, and any discrimination should be a valid one. Ultimately, one has to see the overwhelming public interest as every action of the instrumentality of the state is presumed to be so. While applying the said principle, one has to be conscious of the fact that there may not be a legitimate expectation on the part of an employee as against the statute. We would like to refer to the following judgment of this court on the above principle. Assistant Excise Commissioner and Others v. Issac Peter and Other, Issac Peter ; Assistant Excise Commissioner, (1994) 4 SCC 104:26. Learned counsel for respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which state is a party. It is submitted that the state cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory — at least to the extent of previous years supplies — by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the state is not able to supply so, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the state which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi- judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract — or rather more so. It is one thing to say that a contract — every contract — must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the state. They are not prepared to apply the very same rule in converse case, i.e., where the state has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the state suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay [(1989) 3 SCC 293] it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not say that the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of UP [(1991) 1 SCC 212 : 1991 SCC (L&S) 742] was a case of mass termination of District Government Counsel in the State of UP It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the state, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the state. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the state does not guarantee profit to the licensees in such contracts. WORKING RULES : 31. We have already discussed the qualification qua the post of Director-General. Recruitment to the post of Director-General is to be made under the working rules either directly or on deputation. This is on an all-India basis through a duly constituted Search-cum-Selection Committee. The only exception is by way of a contractual appointment which is for a very brief and temporary period, which can be appointed by the President, CPRI, with the approval of the Government of India. 32. The rules per se do not prohibit a tenure appointment. The definition of direct recruitment would mean recruitment through a process stipulated under the rules. Therefore, by no stretch of the imagination, one can interpret that all direct recruitments are to be made by regular employment. Therefore, direct recruitment can also be made for filing up the post on a tenure basis. Hence, in the absence of any statutory bar under the rules, a tenure appointment made through direct recruitment by following the due procedure cannot be termed as contrary to law. In a direct recruitment the appointment on a regular or tenure basis is the discretion of the employer, especially when the rules do not prohibit. Rule 48 speaks of the age of superannuation for a regular employee, which will be the completion of sixty years. There is no difficulty in appreciating the said rule, which deals with a regular employee alone and therefore can have no application while dealing with an appointment made on a tenure basis. After all, a Court of law cannot give a different status to an employee than the one which was conferred and accepted especially when the same is not prohibited under the rules. SUBMISSIONS OF THE PARTIES: SUBMISSIONS OF THE APPELLANTS: 33. The learned Additional Solicitor General appearing for the appellants submitted that the relief sought by the respondent cannot be granted on the ground of delay, laches, and acquiescence. Similarly, the principle governing approbation and reprobation would also disentitle the relief, especially when Article 226 of the Constitution is invoked. The rules do not prohibit a tenure- based appointment. The respondent made a request only after enjoying his tenure near the end of the period. It was also only made for continuance till the date of superannuation. The impugned order passed by the appellants is only a relieving order. The performance assessment under the rules after the first year or subsequent thereto has nothing to do with the assessment made for re- appointment. The initial appointment itself was by way of re-employment. The appointment order clearly states that the respondent is appointed for an initial tenure of five years or until further orders and re-appointment will be based on suitability. Clause 48 of the rules is only applicable to regular employees, indicating the upper age limit to remain in service and thus, cannot be an enabling one to a tenure-based appointee. The recommendation of the Search- Cum-Selection Committee and by way of the cabinet note is not binding while considering the tenure of the respondent. All the materials were placed before the ACC, and thereafter, a conscious decision was taken on both occasions. Suitability and adequacy are the discretion of the employer alone. There is no arbitrariness involved in not considering the extension. The Division Bench has not considered the materials in the correct perspective. 34. On the relief sought by the respondent, it is submitted that even the period of superannuation is over, and the private respondent has been selected on merit on the recommendation of the Search-cum-Selection Committee. No specific plea has been raised with respect to his continuance as the representation was made on the ground that the respondent should be considered as a regular employee. Thus, the appeals filed by the respondents are also to be dismissed. SUBMISSIONS BY THE RESPONDENTS: 35. Mr. Prashant Bhushan, in his own inimitable style, submitted that the Division Bench has gone through the files while recording its findings which do not warrant any interference. There is a clear violation of Articles 14 and 16 of the Constitution of India. On the first occasion, there is nothing to infer that relevant materials have been considered, and on the second, ACC has not been put on notice on the adverse report. The adverse report itself has been prepared by persons junior to the respondent, and therefore, the same ought to be eschewed. There is no power or authority in passing the impugned termination order. Since the very case of the respondent is that he should be continued till the date of his superannuation, the impugned order passed by the appellants is not a mere relieving order but a termination. The Division Bench has not considered the other relief sought by the respondent, and therefore in light of the findings rendered, the writ petitions are liable to be allowed in toto. There are no statutory rules for a tenure appointment, and hence the respondent should have been treated as a regular employee. The annual performance reports of the respondent found him to be outstanding. The President, CPRI- GC, does not have the power to terminate, as the ACC being the appointing authority, alone has the right. 36. There is no inordinate delay in approaching the Court as the respondent was under the bona fide impression and the legitimate expectation that since the rules do not permit a tenure-based appointment, he is to continue till the date of superannuation. In fact, the respondent made multiple representations to the appellants seeking rectification in the terms of his appointment letter. A mere delay in approaching the employer by way of representations and the High Court would not constitute estoppel, especially when the terms are not in consonance with the rules, as held in the judgment of this Court in Somesh Thapliyal Vs. HNB Garhwal University, 2021 SCC Online SC 659. DISCUSSION: 37. We have already dealt with the principles of law that may have a bearing on this case. There is no element of an unequal bargaining power involved. Nobody has forced the respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure. 38. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research. As noted earlier, there is certainly an overwhelming public interest involved. The employer, has a load of discretion available. In the absence of any arbitrariness, one cannot question its wisdom. After all, a decision has been taken at the highest level. We cannot infer that materials have not been placed before taking the decision. The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment. 39. There is a marked difference between the assessments made during the respondents tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Honble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The rules as perused and understood by us do not prohibit a tenure appointment. In the absence of any prohibition and mandatory mode of appointment, the appellants decision in going for a tenure appointment is perfectly in order. 40. We find, much water has already flown under the bridge. The private respondent has already been appointed in 2016 after following the due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years of service, knows its functioning very well. Thus, in our considered view, the order passed by the Division Bench cannot be sustained in the eye of the law. 41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal V. HNB Garhwal University, 2021 SCC OnLine SC 659. We are of the view that it is not a case in point. In the said decision, rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application. 42. On reading the appointment order, we could not identify the existence of automatic extension. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the ACC also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities. The respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before ACC, we believe that there may not be any need for such approval for two reasons. Firstly, the first appellant found that the respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by ACC would have been warranted. We may also note that all the appellants, including the Honble Minister, have approved the subsequent decision to go for a fresh recruitment by taking note of the larger public interest. 43. In light of the discussion made, the appeals filed by the respondent deserve to be dismissed. Once we hold that the respondent is not entitled to any extension, the consequential benefits cannot be granted. Thus, both on the assessment of facts and the concept of law, we are constrained to hold that the respondent is not entitled to any relief. 44. Accordingly, the appeals filed by the appellants stand allowed by setting aside the impugned order under challenge, and as a consequence, the appeals filed by the respondent are dismissed. No costs.
. The doctrine of approbate and reprobate is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. V. MR. P. Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC 1216 ]).23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329 ] .) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683 ] this Court has observed as under: (SCC pp. 687-88, para 10)10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.25. The Supreme Court in Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd. [Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had. Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470:I. Approbate and reprobate 15. A party cannot be permitted to blow hot-blow cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593 ] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216 ] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC 713 ] , Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 : AIR 2011 SC 1869 ] , Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT (2012) 9 SC 260 ] .] 16. Thus, it is evident that the doctrine of election is based on the rule of estoppel—the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had. ARTICE 226 OF THE CONSTITUTION OF INDIA: 28. We would not dwell deep into the extraordinary and discretionary nature of relief under Article 226 of the Constitution of India. This principle is to be extended much more when an element of undue delay, laches and acquiescence is involved. The following decisions of this Court would suffice: UP Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 :8. Our attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya [(1996) 6 SCC 267 : 1996 SCC (L&S) 1488] . In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the state approached this Court and this Court after considering the matter observed as under: (SCC p. 268) Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub- sections (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay. 9. Similarly in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] this Court reaffirmed the rule that if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] . The appellants desperate attempt to redo the seniority is not amenable to judicial review at this belated stage. 10. In Union of India v. C.K. Dharagupta [(1997) 3 SCC 395 : 1997 SCC (L&S) 821] it was observed as follows: (SCC p. 398, para 9) 9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] . In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief. 11. In Govt. of WB v. Tarun K. Roy [(2004) 1 SCC 347 : 2004 SCC (L&S) 225] their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) 34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar [State of WB v. Debdas Kumar, 1991 Supp (1) SCC 138 : 1991 SCC (L&S) 841 : (1991) 17 ATC 261]. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law. • Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC 295 : 24. As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant Company. It is well settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extraordinary remedy under Article 226 of the Constitution, that he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant. 25. Under the English law, an application for leave for judicial review should be made promptly. If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant. Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favour of such applicant or not. (Vide R. v. Essex County Council [1993 COD 344] .) 26. In R. v. Dairy Produce Quota Tribunal, ex p Caswell [(1990) 2 AC 738 : (1990) 2 WLR 1320 : (1990) 2 All ER 434 (HL)] , AC at p. 749, the House of Lords stated [Ed.: Quoting from OReilly v. Mackman, (1982) 3 All ER 1124 at p. 1131a-b.] : (All ER p. 441a-b) The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. 27. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [1874 LR 5 PC 221 : 22 WR 492] , thus: (LR pp. 239-40) Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy. (emphasis supplied) 28. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110 : (1969) 2 SCR 824 ] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : (1970) 2 SCR 697 ] this Court ruled that even in cases of violation or infringement of fundamental rights, a writ court may take into account delay and laches on the part of the petitioner in approaching the court. And if there is gross or unexplained delay, the court may refuse to grant relief in favour of such petitioner. State of J&K v. R.K. Zalpuri, (2015) 15 SCC 602:20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168 ] , wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus: (SCC p. 175, para 30) 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. 21. In this regard reference to a passage from Karnataka Power Corpn. Ltd. v. K. Thangappan [Karnataka Power Corpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791] would be apposite: (SCC p. 325, para 6) 6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. After so stating the Court after referring to the authority in State of M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 ] restated the principle articulated in earlier pronouncements, which is to the following effect: (SCC p. 326, para 9) 9. … the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 22. In State of Maharashtra v. Digambar [State of Maharashtra v. Digambar, (1995) 4 SCC 683 ] a three-Judge Bench laid down that: (SCC p. 692, para 19) 19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a persons entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct. 23. Recently in Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] , it has been ruled thus: (SCC p. 117, para 16) 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant—a litigant who has forgotten the basic norms, namely, procrastination is the greatest thief of time and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of the writ court to exercise the discretion. In Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] it has been ruled that: (SCC pp. 359-60, para 12) 12. … Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. And again: (SCC p. 360, para 14) 14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Controller of Imports and Exports [Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185 ] , Collector (LA) v. Katiji [Collector (LA) v. Katiji, (1987) 2 SCC 107 : 1989 SCC (Tax) 172] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598 ] , Dayal Singh v. Union of India [Dayal Singh v. Union of India, (2003) 2 SCC 593 ] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56] .) 29. The aforesaid principle is also required to be adopted while considering a case involving approbation and reprobation. DOCTRINE OF FAIRNESS: 30. The doctrine of fairness is inbuilt in every employer and employee relationship. The said doctrine has to be applied after the relationship come into being rather than at the stage of recruitment. While dealing with recruitment, on the question of suitability and adequacy, substantial discretion is appropriately conferred on the employer. At that stage, the question is with respect to the need of the employer to complete a particular type of work. In an employer and employee relationship, the doctrine of fairness has to be applied with more vigour when it involves an instrumentality of the state. Therefore, a State is not expected to act adversely to the interest of the employee, and any discrimination should be a valid one. Ultimately, one has to see the overwhelming public interest as every action of the instrumentality of the state is presumed to be so. While applying the said principle, one has to be conscious of the fact that there may not be a legitimate expectation on the part of an employee as against the statute. We would like to refer to the following judgment of this court on the above principle. Assistant Excise Commissioner and Others v. Issac Peter and Other, Issac Peter ; Assistant Excise Commissioner, (1994) 4 SCC 104:26. Learned counsel for respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which state is a party. It is submitted that the state cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory — at least to the extent of previous years supplies — by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the state is not able to supply so, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the state which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi- judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract — or rather more so. It is one thing to say that a contract — every contract — must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the state. They are not prepared to apply the very same rule in converse case, i.e., where the state has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the state suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay [(1989) 3 SCC 293] it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not say that the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of UP [(1991) 1 SCC 212 : 1991 SCC (L&S) 742] was a case of mass termination of District Government Counsel in the State of UP It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the state, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the state. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the state does not guarantee profit to the licensees in such contracts. WORKING RULES : 31. We have already discussed the qualification qua the post of Director-General. Recruitment to the post of Director-General is to be made under the working rules either directly or on deputation. This is on an all-India basis through a duly constituted Search-cum-Selection Committee. The only exception is by way of a contractual appointment which is for a very brief and temporary period, which can be appointed by the President, CPRI, with the approval of the Government of India. 32. The rules per se do not prohibit a tenure appointment. The definition of direct recruitment would mean recruitment through a process stipulated under the rules. Therefore, by no stretch of the imagination, one can interpret that all direct recruitments are to be made by regular employment. Therefore, direct recruitment can also be made for filing up the post on a tenure basis. Hence, in the absence of any statutory bar under the rules, a tenure appointment made through direct recruitment by following the due procedure cannot be termed as contrary to law. In a direct recruitment the appointment on a regular or tenure basis is the discretion of the employer, especially when the rules do not prohibit. Rule 48 speaks of the age of superannuation for a regular employee, which will be the completion of sixty years. There is no difficulty in appreciating the said rule, which deals with a regular employee alone and therefore can have no application while dealing with an appointment made on a tenure basis. After all, a Court of law cannot give a different status to an employee than the one which was conferred and accepted especially when the same is not prohibited under the rules. SUBMISSIONS OF THE PARTIES: SUBMISSIONS OF THE APPELLANTS: 33. The learned Additional Solicitor General appearing for the appellants submitted that the relief sought by the respondent cannot be granted on the ground of delay, laches, and acquiescence. Similarly, the principle governing approbation and reprobation would also disentitle the relief, especially when Article 226 of the Constitution is invoked. The rules do not prohibit a tenure- based appointment. The respondent made a request only after enjoying his tenure near the end of the period. It was also only made for continuance till the date of superannuation. The impugned order passed by the appellants is only a relieving order. The performance assessment under the rules after the first year or subsequent thereto has nothing to do with the assessment made for re- appointment. The initial appointment itself was by way of re-employment. The appointment order clearly states that the respondent is appointed for an initial tenure of five years or until further orders and re-appointment will be based on suitability. Clause 48 of the rules is only applicable to regular employees, indicating the upper age limit to remain in service and thus, cannot be an enabling one to a tenure-based appointee. The recommendation of the Search- Cum-Selection Committee and by way of the cabinet note is not binding while considering the tenure of the respondent. All the materials were placed before the ACC, and thereafter, a conscious decision was taken on both occasions. Suitability and adequacy are the discretion of the employer alone. There is no arbitrariness involved in not considering the extension. The Division Bench has not considered the materials in the correct perspective. 34. On the relief sought by the respondent, it is submitted that even the period of superannuation is over, and the private respondent has been selected on merit on the recommendation of the Search-cum-Selection Committee. No specific plea has been raised with respect to his continuance as the representation was made on the ground that the respondent should be considered as a regular employee. Thus, the appeals filed by the respondents are also to be dismissed. SUBMISSIONS BY THE RESPONDENTS: 35. Mr. Prashant Bhushan, in his own inimitable style, submitted that the Division Bench has gone through the files while recording its findings which do not warrant any interference. There is a clear violation of Articles 14 and 16 of the Constitution of India. On the first occasion, there is nothing to infer that relevant materials have been considered, and on the second, ACC has not been put on notice on the adverse report. The adverse report itself has been prepared by persons junior to the respondent, and therefore, the same ought to be eschewed. There is no power or authority in passing the impugned termination order. Since the very case of the respondent is that he should be continued till the date of his superannuation, the impugned order passed by the appellants is not a mere relieving order but a termination. The Division Bench has not considered the other relief sought by the respondent, and therefore in light of the findings rendered, the writ petitions are liable to be allowed in toto. There are no statutory rules for a tenure appointment, and hence the respondent should have been treated as a regular employee. The annual performance reports of the respondent found him to be outstanding. The President, CPRI- GC, does not have the power to terminate, as the ACC being the appointing authority, alone has the right. 36. There is no inordinate delay in approaching the Court as the respondent was under the bona fide impression and the legitimate expectation that since the rules do not permit a tenure-based appointment, he is to continue till the date of superannuation. In fact, the respondent made multiple representations to the appellants seeking rectification in the terms of his appointment letter. A mere delay in approaching the employer by way of representations and the High Court would not constitute estoppel, especially when the terms are not in consonance with the rules, as held in the judgment of this Court in Somesh Thapliyal Vs. HNB Garhwal University, 2021 SCC Online SC 659. DISCUSSION: 37. We have already dealt with the principles of law that may have a bearing on this case. There is no element of an unequal bargaining power involved. Nobody has forced the respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure. 38. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research. As noted earlier, there is certainly an overwhelming public interest involved. The employer, has a load of discretion available. In the absence of any arbitrariness, one cannot question its wisdom. After all, a decision has been taken at the highest level. We cannot infer that materials have not been placed before taking the decision. The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment. 39. There is a marked difference between the assessments made during the respondents tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Honble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The rules as perused and understood by us do not prohibit a tenure appointment. In the absence of any prohibition and mandatory mode of appointment, the appellants decision in going for a tenure appointment is perfectly in order. 40. We find, much water has already flown under the bridge. The private respondent has already been appointed in 2016 after following the due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years of service, knows its functioning very well. Thus, in our considered view, the order passed by the Division Bench cannot be sustained in the eye of the law. 41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal V. HNB Garhwal University, 2021 SCC OnLine SC 659. We are of the view that it is not a case in point. In the said decision, rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application. 42. On reading the appointment order, we could not identify the existence of automatic extension. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the ACC also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities. The respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before ACC, we believe that there may not be any need for such approval for two reasons. Firstly, the first appellant found that the respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by ACC would have been warranted. We may also note that all the appellants, including the Honble Minister, have approved the subsequent decision to go for a fresh recruitment by taking note of the larger public interest. 43. In light of the discussion made, the appeals filed by the respondent deserve to be dismissed. Once we hold that the respondent is not entitled to any extension, the consequential benefits cannot be granted. Thus, both on the assessment of facts and the concept of law, we are constrained to hold that the respondent is not entitled to any relief. 44. Accordingly, the appeals filed by the appellants stand allowed by setting aside the impugned order under challenge, and as a consequence, the appeals filed by the respondent are dismissed. No costs.
. Approbate and reprobate15. A party cannot be permitted to blow hot-blow cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593 ] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216 ] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC 713 ] , Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 : AIR 2011 SC 1869 ] , Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT (2012) 9 SC 260 ] .]16. Thus, it is evident that the doctrine of election is based on the rule of estoppel—the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had. UP Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 :8. Our attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya [(1996) 6 SCC 267 : 1996 SCC (L&S) 1488] . In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the state approached this Court and this Court after considering the matter observed as under: (SCC p. 268)Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub- sections (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay.9. Similarly in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] this Court reaffirmed the rule that if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542)The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] . The appellants desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.10. In Union of India v. C.K. Dharagupta [(1997) 3 SCC 395 : 1997 SCC (L&S) 821] it was observed as follows: (SCC p. 398, para 9)9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] . In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief.11. In Govt. of WB v. Tarun K. Roy [(2004) 1 SCC 347 : 2004 SCC (L&S) 225] their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34)34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar [State of WB v. Debdas Kumar, 1991 Supp (1) SCC 138 : 1991 SCC (L&S) 841 : (1991) 17 ATC 261]. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law.• Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC 295 :24. As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant Company. It is well settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extraordinary remedy under Article 226 of the Constitution, that he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant.25. Under the English law, an application for leave for judicial review should be made promptly. If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant. Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favour of such applicant or not. (Vide R. v. Essex County Council [1993 COD 344] .)26. In R. v. Dairy Produce Quota Tribunal, ex p Caswell [(1990) 2 AC 738 : (1990) 2 WLR 1320 : (1990) 2 All ER 434 (HL)] , AC at p. 749, the House of Lords stated [Ed.: Quoting from OReilly v. Mackman, (1982) 3 All ER 1124 at p. 1131a-b.] : (All ER p. 441a-b)The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.27. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [1874 LR 5 PC 221 : 22 WR 492] , thus: (LR pp. 239-40)Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.28. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110 : (1969) 2 SCR 824 ] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : (1970) 2 SCR 697 ] this Court ruled that even in cases of violation or infringement of fundamental rights, a writ court may take into account delay and laches on the part of the petitioner in approaching the court. And if there is gross or unexplained delay, the court may refuse to grant relief in favour of such petitioner. State of J&K v. R.K. Zalpuri, (2015) 15 SCC 602:20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168 ] , wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus: (SCC p. 175, para 30) 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. 21. In this regard reference to a passage from Karnataka Power Corpn. Ltd. v. K. Thangappan [Karnataka Power Corpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791] would be apposite: (SCC p. 325, para 6) 6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. After so stating the Court after referring to the authority in State of M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 ] restated the principle articulated in earlier pronouncements, which is to the following effect: (SCC p. 326, para 9) 9. … the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 22. In State of Maharashtra v. Digambar [State of Maharashtra v. Digambar, (1995) 4 SCC 683 ] a three-Judge Bench laid down that: (SCC p. 692, para 19) 19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a persons entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct. 23. Recently in Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] , it has been ruled thus: (SCC p. 117, para 16) 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant—a litigant who has forgotten the basic norms, namely, procrastination is the greatest thief of time and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of the writ court to exercise the discretion. In Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] it has been ruled that: (SCC pp. 359-60, para 12) 12. … Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. And again: (SCC p. 360, para 14) 14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Controller of Imports and Exports [Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185 ] , Collector (LA) v. Katiji [Collector (LA) v. Katiji, (1987) 2 SCC 107 : 1989 SCC (Tax) 172] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598 ] , Dayal Singh v. Union of India [Dayal Singh v. Union of India, (2003) 2 SCC 593 ] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56] .) 29. The aforesaid principle is also required to be adopted while considering a case involving approbation and reprobation. DOCTRINE OF FAIRNESS: 30. The doctrine of fairness is inbuilt in every employer and employee relationship. The said doctrine has to be applied after the relationship come into being rather than at the stage of recruitment. While dealing with recruitment, on the question of suitability and adequacy, substantial discretion is appropriately conferred on the employer. At that stage, the question is with respect to the need of the employer to complete a particular type of work. In an employer and employee relationship, the doctrine of fairness has to be applied with more vigour when it involves an instrumentality of the state. Therefore, a State is not expected to act adversely to the interest of the employee, and any discrimination should be a valid one. Ultimately, one has to see the overwhelming public interest as every action of the instrumentality of the state is presumed to be so. While applying the said principle, one has to be conscious of the fact that there may not be a legitimate expectation on the part of an employee as against the statute. We would like to refer to the following judgment of this court on the above principle. Assistant Excise Commissioner and Others v. Issac Peter and Other, Issac Peter ; Assistant Excise Commissioner, (1994) 4 SCC 104:26. Learned counsel for respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which state is a party. It is submitted that the state cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory — at least to the extent of previous years supplies — by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the state is not able to supply so, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the state which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi- judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract — or rather more so. It is one thing to say that a contract — every contract — must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the state. They are not prepared to apply the very same rule in converse case, i.e., where the state has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the state suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay [(1989) 3 SCC 293] it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not say that the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of UP [(1991) 1 SCC 212 : 1991 SCC (L&S) 742] was a case of mass termination of District Government Counsel in the State of UP It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the state, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the state. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the state does not guarantee profit to the licensees in such contracts. WORKING RULES : 31. We have already discussed the qualification qua the post of Director-General. Recruitment to the post of Director-General is to be made under the working rules either directly or on deputation. This is on an all-India basis through a duly constituted Search-cum-Selection Committee. The only exception is by way of a contractual appointment which is for a very brief and temporary period, which can be appointed by the President, CPRI, with the approval of the Government of India. 32. The rules per se do not prohibit a tenure appointment. The definition of direct recruitment would mean recruitment through a process stipulated under the rules. Therefore, by no stretch of the imagination, one can interpret that all direct recruitments are to be made by regular employment. Therefore, direct recruitment can also be made for filing up the post on a tenure basis. Hence, in the absence of any statutory bar under the rules, a tenure appointment made through direct recruitment by following the due procedure cannot be termed as contrary to law. In a direct recruitment the appointment on a regular or tenure basis is the discretion of the employer, especially when the rules do not prohibit. Rule 48 speaks of the age of superannuation for a regular employee, which will be the completion of sixty years. There is no difficulty in appreciating the said rule, which deals with a regular employee alone and therefore can have no application while dealing with an appointment made on a tenure basis. After all, a Court of law cannot give a different status to an employee than the one which was conferred and accepted especially when the same is not prohibited under the rules. SUBMISSIONS OF THE PARTIES: SUBMISSIONS OF THE APPELLANTS: 33. The learned Additional Solicitor General appearing for the appellants submitted that the relief sought by the respondent cannot be granted on the ground of delay, laches, and acquiescence. Similarly, the principle governing approbation and reprobation would also disentitle the relief, especially when Article 226 of the Constitution is invoked. The rules do not prohibit a tenure- based appointment. The respondent made a request only after enjoying his tenure near the end of the period. It was also only made for continuance till the date of superannuation. The impugned order passed by the appellants is only a relieving order. The performance assessment under the rules after the first year or subsequent thereto has nothing to do with the assessment made for re- appointment. The initial appointment itself was by way of re-employment. The appointment order clearly states that the respondent is appointed for an initial tenure of five years or until further orders and re-appointment will be based on suitability. Clause 48 of the rules is only applicable to regular employees, indicating the upper age limit to remain in service and thus, cannot be an enabling one to a tenure-based appointee. The recommendation of the Search- Cum-Selection Committee and by way of the cabinet note is not binding while considering the tenure of the respondent. All the materials were placed before the ACC, and thereafter, a conscious decision was taken on both occasions. Suitability and adequacy are the discretion of the employer alone. There is no arbitrariness involved in not considering the extension. The Division Bench has not considered the materials in the correct perspective. 34. On the relief sought by the respondent, it is submitted that even the period of superannuation is over, and the private respondent has been selected on merit on the recommendation of the Search-cum-Selection Committee. No specific plea has been raised with respect to his continuance as the representation was made on the ground that the respondent should be considered as a regular employee. Thus, the appeals filed by the respondents are also to be dismissed. SUBMISSIONS BY THE RESPONDENTS: 35. Mr. Prashant Bhushan, in his own inimitable style, submitted that the Division Bench has gone through the files while recording its findings which do not warrant any interference. There is a clear violation of Articles 14 and 16 of the Constitution of India. On the first occasion, there is nothing to infer that relevant materials have been considered, and on the second, ACC has not been put on notice on the adverse report. The adverse report itself has been prepared by persons junior to the respondent, and therefore, the same ought to be eschewed. There is no power or authority in passing the impugned termination order. Since the very case of the respondent is that he should be continued till the date of his superannuation, the impugned order passed by the appellants is not a mere relieving order but a termination. The Division Bench has not considered the other relief sought by the respondent, and therefore in light of the findings rendered, the writ petitions are liable to be allowed in toto. There are no statutory rules for a tenure appointment, and hence the respondent should have been treated as a regular employee. The annual performance reports of the respondent found him to be outstanding. The President, CPRI- GC, does not have the power to terminate, as the ACC being the appointing authority, alone has the right. 36. There is no inordinate delay in approaching the Court as the respondent was under the bona fide impression and the legitimate expectation that since the rules do not permit a tenure-based appointment, he is to continue till the date of superannuation. In fact, the respondent made multiple representations to the appellants seeking rectification in the terms of his appointment letter. A mere delay in approaching the employer by way of representations and the High Court would not constitute estoppel, especially when the terms are not in consonance with the rules, as held in the judgment of this Court in Somesh Thapliyal Vs. HNB Garhwal University, 2021 SCC Online SC 659. DISCUSSION: 37. We have already dealt with the principles of law that may have a bearing on this case. There is no element of an unequal bargaining power involved. Nobody has forced the respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure. 38. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research. As noted earlier, there is certainly an overwhelming public interest involved. The employer, has a load of discretion available. In the absence of any arbitrariness, one cannot question its wisdom. After all, a decision has been taken at the highest level. We cannot infer that materials have not been placed before taking the decision. The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment. 39. There is a marked difference between the assessments made during the respondents tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Honble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The rules as perused and understood by us do not prohibit a tenure appointment. In the absence of any prohibition and mandatory mode of appointment, the appellants decision in going for a tenure appointment is perfectly in order. 40. We find, much water has already flown under the bridge. The private respondent has already been appointed in 2016 after following the due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years of service, knows its functioning very well. Thus, in our considered view, the order passed by the Division Bench cannot be sustained in the eye of the law. 41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal V. HNB Garhwal University, 2021 SCC OnLine SC 659. We are of the view that it is not a case in point. In the said decision, rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application. 42. On reading the appointment order, we could not identify the existence of automatic extension. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the ACC also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities. The respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before ACC, we believe that there may not be any need for such approval for two reasons. Firstly, the first appellant found that the respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by ACC would have been warranted. We may also note that all the appellants, including the Honble Minister, have approved the subsequent decision to go for a fresh recruitment by taking note of the larger public interest. 43. In light of the discussion made, the appeals filed by the respondent deserve to be dismissed. Once we hold that the respondent is not entitled to any extension, the consequential benefits cannot be granted. Thus, both on the assessment of facts and the concept of law, we are constrained to hold that the respondent is not entitled to any relief. 44. Accordingly, the appeals filed by the appellants stand allowed by setting aside the impugned order under challenge, and as a consequence, the appeals filed by the respondent are dismissed. No costs.
. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168 ] , wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus: (SCC p. 175, para 30)30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;(b) the petition reveals all material facts;(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;(d) person invoking the jurisdiction is guilty of unexplained delay and laches;(e) ex facie barred by any laws of limitation;(f) grant of relief is against public policy or barred by any valid law; and host of other factors.21. In this regard reference to a passage from Karnataka Power Corpn. Ltd. v. K. Thangappan [Karnataka Power Corpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791] would be apposite: (SCC p. 325, para 6)6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party.After so stating the Court after referring to the authority in State of M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 ] restated the principle articulated in earlier pronouncements, which is to the following effect: (SCC p. 326, para 9)9. … the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.22. In State of Maharashtra v. Digambar [State of Maharashtra v. Digambar, (1995) 4 SCC 683 ] a three-Judge Bench laid down that: (SCC p. 692, para 19)19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a persons entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.23. Recently in Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] , it has been ruled thus: (SCC p. 117, para 16)16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant—a litigant who has forgotten the basic norms, namely, procrastination is the greatest thief of time and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of the writ court to exercise the discretion. In Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] it has been ruled that: (SCC pp. 359-60, para 12)12. … Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.And again: (SCC p. 360, para 14)14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Controller of Imports and Exports [Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185 ] , Collector (LA) v. Katiji [Collector (LA) v. Katiji, (1987) 2 SCC 107 : 1989 SCC (Tax) 172] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598 ] , Dayal Singh v. Union of India [Dayal Singh v. Union of India, (2003) 2 SCC 593 ] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56] .)30. The doctrine of fairness is inbuilt in every employer and employee relationship. The said doctrine has to be applied after the relationship come into being rather than at the stage of recruitment. While dealing with recruitment, on the question of suitability and adequacy, substantial discretion is appropriately conferred on the employer. At that stage, the question is with respect to the need of the employer to complete a particular type of work. In an employer and employee relationship, the doctrine of fairness has to be applied with more vigour when it involves an instrumentality of the state. Therefore, a State is not expected to act adversely to the interest of the employee, and any discrimination should be a valid one. Ultimately, one has to see the overwhelming public interest as every action of the instrumentality of the state is presumed to be so. While applying the said principle, one has to be conscious of the fact that there may not be a legitimate expectation on the part of an employee as against the statute. We would like to refer to the following judgment of this court on the above principle. Assistant Excise Commissioner and Others v. Issac Peter and Other, Issac Peter ; Assistant Excise Commissioner, (1994) 4 SCC 104:26. Learned counsel for respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which state is a party. It is submitted that the state cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory — at least to the extent of previous years supplies — by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the state is not able to supply so, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the state which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi- judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract — or rather more so. It is one thing to say that a contract — every contract — must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the state. They are not prepared to apply the very same rule in converse case, i.e., where the state has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the state suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay [(1989) 3 SCC 293] it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not say that the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of UP [(1991) 1 SCC 212 : 1991 SCC (L&S) 742] was a case of mass termination of District Government Counsel in the State of UP It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the state, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the state. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the state does not guarantee profit to the licensees in such contracts. WORKING RULES : 31. We have already discussed the qualification qua the post of Director-General. Recruitment to the post of Director-General is to be made under the working rules either directly or on deputation. This is on an all-India basis through a duly constituted Search-cum-Selection Committee. The only exception is by way of a contractual appointment which is for a very brief and temporary period, which can be appointed by the President, CPRI, with the approval of the Government of India. 32. The rules per se do not prohibit a tenure appointment. The definition of direct recruitment would mean recruitment through a process stipulated under the rules. Therefore, by no stretch of the imagination, one can interpret that all direct recruitments are to be made by regular employment. Therefore, direct recruitment can also be made for filing up the post on a tenure basis. Hence, in the absence of any statutory bar under the rules, a tenure appointment made through direct recruitment by following the due procedure cannot be termed as contrary to law. In a direct recruitment the appointment on a regular or tenure basis is the discretion of the employer, especially when the rules do not prohibit. Rule 48 speaks of the age of superannuation for a regular employee, which will be the completion of sixty years. There is no difficulty in appreciating the said rule, which deals with a regular employee alone and therefore can have no application while dealing with an appointment made on a tenure basis. After all, a Court of law cannot give a different status to an employee than the one which was conferred and accepted especially when the same is not prohibited under the rules. SUBMISSIONS OF THE PARTIES: SUBMISSIONS OF THE APPELLANTS: 33. The learned Additional Solicitor General appearing for the appellants submitted that the relief sought by the respondent cannot be granted on the ground of delay, laches, and acquiescence. Similarly, the principle governing approbation and reprobation would also disentitle the relief, especially when Article 226 of the Constitution is invoked. The rules do not prohibit a tenure- based appointment. The respondent made a request only after enjoying his tenure near the end of the period. It was also only made for continuance till the date of superannuation. The impugned order passed by the appellants is only a relieving order. The performance assessment under the rules after the first year or subsequent thereto has nothing to do with the assessment made for re- appointment. The initial appointment itself was by way of re-employment. The appointment order clearly states that the respondent is appointed for an initial tenure of five years or until further orders and re-appointment will be based on suitability. Clause 48 of the rules is only applicable to regular employees, indicating the upper age limit to remain in service and thus, cannot be an enabling one to a tenure-based appointee. The recommendation of the Search- Cum-Selection Committee and by way of the cabinet note is not binding while considering the tenure of the respondent. All the materials were placed before the ACC, and thereafter, a conscious decision was taken on both occasions. Suitability and adequacy are the discretion of the employer alone. There is no arbitrariness involved in not considering the extension. The Division Bench has not considered the materials in the correct perspective. 34. On the relief sought by the respondent, it is submitted that even the period of superannuation is over, and the private respondent has been selected on merit on the recommendation of the Search-cum-Selection Committee. No specific plea has been raised with respect to his continuance as the representation was made on the ground that the respondent should be considered as a regular employee. Thus, the appeals filed by the respondents are also to be dismissed. SUBMISSIONS BY THE RESPONDENTS: 35. Mr. Prashant Bhushan, in his own inimitable style, submitted that the Division Bench has gone through the files while recording its findings which do not warrant any interference. There is a clear violation of Articles 14 and 16 of the Constitution of India. On the first occasion, there is nothing to infer that relevant materials have been considered, and on the second, ACC has not been put on notice on the adverse report. The adverse report itself has been prepared by persons junior to the respondent, and therefore, the same ought to be eschewed. There is no power or authority in passing the impugned termination order. Since the very case of the respondent is that he should be continued till the date of his superannuation, the impugned order passed by the appellants is not a mere relieving order but a termination. The Division Bench has not considered the other relief sought by the respondent, and therefore in light of the findings rendered, the writ petitions are liable to be allowed in toto. There are no statutory rules for a tenure appointment, and hence the respondent should have been treated as a regular employee. The annual performance reports of the respondent found him to be outstanding. The President, CPRI- GC, does not have the power to terminate, as the ACC being the appointing authority, alone has the right. 36. There is no inordinate delay in approaching the Court as the respondent was under the bona fide impression and the legitimate expectation that since the rules do not permit a tenure-based appointment, he is to continue till the date of superannuation. In fact, the respondent made multiple representations to the appellants seeking rectification in the terms of his appointment letter. A mere delay in approaching the employer by way of representations and the High Court would not constitute estoppel, especially when the terms are not in consonance with the rules, as held in the judgment of this Court in Somesh Thapliyal Vs. HNB Garhwal University, 2021 SCC Online SC 659. DISCUSSION: 37. We have already dealt with the principles of law that may have a bearing on this case. There is no element of an unequal bargaining power involved. Nobody has forced the respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure. 38. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research. As noted earlier, there is certainly an overwhelming public interest involved. The employer, has a load of discretion available. In the absence of any arbitrariness, one cannot question its wisdom. After all, a decision has been taken at the highest level. We cannot infer that materials have not been placed before taking the decision. The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment. 39. There is a marked difference between the assessments made during the respondents tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Honble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The rules as perused and understood by us do not prohibit a tenure appointment. In the absence of any prohibition and mandatory mode of appointment, the appellants decision in going for a tenure appointment is perfectly in order. 40. We find, much water has already flown under the bridge. The private respondent has already been appointed in 2016 after following the due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years of service, knows its functioning very well. Thus, in our considered view, the order passed by the Division Bench cannot be sustained in the eye of the law. 41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal V. HNB Garhwal University, 2021 SCC OnLine SC 659. We are of the view that it is not a case in point. In the said decision, rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application. 42. On reading the appointment order, we could not identify the existence of automatic extension. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the ACC also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities. The respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before ACC, we believe that there may not be any need for such approval for two reasons. Firstly, the first appellant found that the respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by ACC would have been warranted. We may also note that all the appellants, including the Honble Minister, have approved the subsequent decision to go for a fresh recruitment by taking note of the larger public interest. 43. In light of the discussion made, the appeals filed by the respondent deserve to be dismissed. Once we hold that the respondent is not entitled to any extension, the consequential benefits cannot be granted. Thus, both on the assessment of facts and the concept of law, we are constrained to hold that the respondent is not entitled to any relief. 44. Accordingly, the appeals filed by the appellants stand allowed by setting aside the impugned order under challenge, and as a consequence, the appeals filed by the respondent are dismissed. No costs.
. Learned counsel for respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which state is a party. It is submitted that the state cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory — at least to the extent of previous years supplies — by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the state is not able to supply so, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the state which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi- judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract — or rather more so. It is one thing to say that a contract — every contract — must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the state. They are not prepared to apply the very same rule in converse case, i.e., where the state has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the state suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition. In Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay [(1989) 3 SCC 293] it was held that where a public authority is exempted from the operation of a statute like Rent Control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not say that the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi v. State of UP [(1991) 1 SCC 212 : 1991 SCC (L&S) 742] was a case of mass termination of District Government Counsel in the State of UP It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the state, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the state. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the state does not guarantee profit to the licensees in such contracts.37. We have already dealt with the principles of law that may have a bearing on this case. There is no element of an unequal bargaining power involved. Nobody has forced the respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure.38. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research. As noted earlier, there is certainly an overwhelming public interest involved. The employer, has a load of discretion available. In the absence of any arbitrariness, one cannot question its wisdom. After all, a decision has been taken at the highest level. We cannot infer that materials have not been placed before taking the decision. The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment.39. There is a marked difference between the assessments made during the respondents tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Honble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The rules as perused and understood by us do not prohibit a tenure appointment. In the absence of any prohibition and mandatory mode of appointment, the appellants decision in going for a tenure appointment is perfectly in order.40. We find, much water has already flown under the bridge. The private respondent has already been appointed in 2016 after following the due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years of service, knows its functioning very well. Thus, in our considered view, the order passed by the Division Bench cannot be sustained in the eye of the law.41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal V. HNB Garhwal University, 2021 SCC OnLine SC 659. We are of the view that it is not a case in point. In the said decision, rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application.42. On reading the appointment order, we could not identify the existence of automatic extension. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the ACC also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities. The respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before ACC, we believe that there may not be any need for such approval for two reasons. Firstly, the first appellant found that the respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by ACC would have been warranted. We may also note that all the appellants, including the Honble Minister, have approved the subsequent decision to go for a fresh recruitment by taking note of the larger public interest. | 0 | 10,905 | 37,833 | ### 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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36. There is no inordinate delay in approaching the Court as the respondent was under the bona fide impression and the legitimate expectation that since the rules do not permit a tenure-based appointment, he is to continue till the date of superannuation. In fact, the respondent made multiple representations to the appellants seeking rectification in the terms of his appointment letter. A mere delay in approaching the employer by way of representations and the High Court would not constitute estoppel, especially when the terms are not in consonance with the rules, as held in the judgment of this Court in Somesh Thapliyal Vs. HNB Garhwal University, 2021 SCC Online SC 659. DISCUSSION: 37. We have already dealt with the principles of law that may have a bearing on this case. There is no element of an unequal bargaining power involved. Nobody has forced the respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure. 38. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research. As noted earlier, there is certainly an overwhelming public interest involved. The employer, has a load of discretion available. In the absence of any arbitrariness, one cannot question its wisdom. After all, a decision has been taken at the highest level. We cannot infer that materials have not been placed before taking the decision. The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment. 39. There is a marked difference between the assessments made during the respondents tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Honble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The rules as perused and understood by us do not prohibit a tenure appointment. In the absence of any prohibition and mandatory mode of appointment, the appellants decision in going for a tenure appointment is perfectly in order. 40. We find, much water has already flown under the bridge. The private respondent has already been appointed in 2016 after following the due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years of service, knows its functioning very well. Thus, in our considered view, the order passed by the Division Bench cannot be sustained in the eye of the law. 41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal V. HNB Garhwal University, 2021 SCC OnLine SC 659. We are of the view that it is not a case in point. In the said decision, rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application. 42. On reading the appointment order, we could not identify the existence of automatic extension. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the ACC also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities. The respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before ACC, we believe that there may not be any need for such approval for two reasons. Firstly, the first appellant found that the respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by ACC would have been warranted. We may also note that all the appellants, including the Honble Minister, have approved the subsequent decision to go for a fresh recruitment by taking note of the larger public interest.
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### Explanation:
adding to the terms and conditions of the contract, merely because it happens to be the state. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the state does not guarantee profit to the licensees in such contracts.37. We have already dealt with the principles of law that may have a bearing on this case. There is no element of an unequal bargaining power involved. Nobody has forced the respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure.38. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research. As noted earlier, there is certainly an overwhelming public interest involved. The employer, has a load of discretion available. In the absence of any arbitrariness, one cannot question its wisdom. After all, a decision has been taken at the highest level. We cannot infer that materials have not been placed before taking the decision. The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment.39. There is a marked difference between the assessments made during the respondents tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Honble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The rules as perused and understood by us do not prohibit a tenure appointment. In the absence of any prohibition and mandatory mode of appointment, the appellants decision in going for a tenure appointment is perfectly in order.40. We find, much water has already flown under the bridge. The private respondent has already been appointed in 2016 after following the due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years of service, knows its functioning very well. Thus, in our considered view, the order passed by the Division Bench cannot be sustained in the eye of the law.41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal V. HNB Garhwal University, 2021 SCC OnLine SC 659. We are of the view that it is not a case in point. In the said decision, rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application.42. On reading the appointment order, we could not identify the existence of automatic extension. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the ACC also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities. The respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before ACC, we believe that there may not be any need for such approval for two reasons. Firstly, the first appellant found that the respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by ACC would have been warranted. We may also note that all the appellants, including the Honble Minister, have approved the subsequent decision to go for a fresh recruitment by taking note of the larger public interest.
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Commissioner Of Income-Tax, Madhya Pradesh Etc Vs. M/S. Straw Products Ltd., Bhopal | law to a problem raised by the reference before the High Court is not normally excluded merely because at the date when the Tribunal decided the question the relevant law was not or could not be brought to its notice.Therefore, following this judgment, we must hold that Mr. Sastri is entitled to rely on the 1962 order and it is our duty to answer the reference in accordance with the amendment made by the order, unless the question referred is not couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law.13. Mr. Desai then raises two questions in respect of the order. First he says that it is the first time that the order is being relied on in these proceedings and he is entitled to urge before us that the order is bad. He has given a number of reasons in support of his plea that the order is ultra vires, but in view of the decision of this Court in K. S. Venkataraman v. State of Madras, Civil Appeal No. 18 of 1963 dated 18-10-1965: (AIR 1966 SC 1089 ), we refused to allow him to develop these objections. We may mention that he seeks to distinguish Venkataramans case, C. A. No. 618 of 1963 dated 18-10-1965: (AIR 1966 SC 1089 ) on the ground that the Supreme Court and the High Court are not creatures of the order which he was impugning. He further says that the Appellate Tribunal would also have been entitled to go into the question of the validity because the order is not part of the Income-tax Act, and it is not the creature of the order in the sense mentioned in Venkataramans case, C. A. No. 618 of 1963 dated 18-10-1965: (AIR 1966 SC 1089 ). We are not able to sustain the distinction sought to be made by Mr. Desai. The order is in effect an amendment of the Indian Income-tax Act insofar as it is applicable to the merged States. If it had not been for the order only the provisions of S. 10(5) of the Act would have been applied for the purpose of working out depreciation. Now, in view of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949, as explained by the 1962 order, a different rule has been directed to be applied and the Income-tax Officer is bound to follow this statutory direction. We are unable to see how the judgment in Venkataramans case, C. A. No. 618 of 1963 dated 18-10-1965: (AIR 1966 SC 1089 ) does not apply.14. Mr. Desai then contends that the 1962 order did not apply to this case because income of the assessee had not been exempted under the agreement with the ruler. He says that the words "exempted from tax in the 1962 order means that the assessee must have been liable to pay tax and then exemption granted. He points to the definition of the word "assessee in the Bhopal Income-tax Act, 1936 (VIII of 1936), which has been defined as "a person by whom income tax is payable. Then he refers to the charging section the relevant part of which reads as follows:"3. Whereby a notification in the jarida the Government declares that income-tax shall be charged for any year at any rate or rates applicable to the total income of an assessee, tax........He says that the respondent was not an assessee because under the agreement no income-tax was payable by it and for this reason no notice or assessment had been made under the Bhopal Income-tax Act.We are unable to sustain this contention. The definition of assessee must mean a person by whom income-tax is payable under the Bhopal Act. If it had not been for the agreement, the respondent would have been liable to pay tax and it is the agreement alone which exempted it from taxation.15. Mr. Desai then contends that the 1962 order is not retrospective and does not apply to assessments made before the order came into force. We see no force in this contention because the terms of the order are plain and if it is deemed, as directed by the order, that the expression "actually allowed under any laws or rules of a merged State should have the meaning ascribed to it by the Explanation, as from December 3, 1949, when the Taxation Laws (Merged States) (Removal of Difficulties) Order. 1949, came into force, the Explanation must apply to the assessments for the years 1952-53 and 1953-54.16. Lastly, Mr. Desai contends that the question referred to the High Court in this case is not couched in terms of sufficient amplitude to cover the points he has tried to make, namely, whether the order dated August 22, 1962 is retrospective and whether the assessee is covered by the terms of Cl. (b) of the Explanation. Looking at the question it seems to us that the substance of the question which was referred was whether the view held by the Income-tax Officer or the Appellate Assistant Commissioner was right, and the words "having regard to occurring in the question did not have the effect of restricting the laws that could be considered for answering the question. It may also be said that when paragraph 2 of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949, is referred to, it would include paragraph 2 as amended retrospectively. We must, therefore, overrule Mr. Desais objection and hold that the question framed by the Appellate Tribunal is wide enough to include a discussion of the amendments made retrospectively in the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949.17. In conclusion, applying the 1962 order to the facts of this case it is clear that the answer to the question referred must be that the correct basis for computing the written down value of the depreciable assets as on November 1, 1948. is the one which was adopted by the Income-tax Officer. I | 1[ds], Mr. Desai contends that the question referred to the High Court in this case is not couched in terms of sufficient amplitude to cover the points he has tried to make, namely, whether the order dated August 22, 1962 is retrospective and whether the assessee is covered by the terms of Cl. (b) of the Explanation.Looking at the question it seems to us that the substance of the question which was referred was whether the view held by the Income-tax Officer or the Appellate Assistant Commissioner was right, and the words "having regard to occurring in the question did not have the effect of restricting the laws that could be considered for answering the question. It may also be said that when paragraph 2 of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949, is referred to, it would include paragraph 2 as amended retrospectively. We must, therefore, overrule Mr. Desais objection and hold that the question framed by the Appellate Tribunal is wide enough to include a discussion of the amendments made retrospectively in the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949.17. In conclusion, applying the 1962 order to the facts of this case it is clear that the answer to the question referred must be that the correct basis for computing the written down value of the depreciable assets as on November 1, 1948. is the one which was adopted by the Income-tax Officer.We are unable to give such an artificial meaning to the expression "all depreciation actually allowed under any laws or rules, and we agree with the High Court that the expression "actually allowed is unambiguous and connotes the idea that the allowance was actually given effect to.If it was intended to include any allowances which are not actually allowed then the Central Government would have added a deeming provision as the legislature did in the Explanation to S. 10(5) of thefollowing this judgment, we must hold that Mr. Sastri is entitled to rely on the 1962 order and it is our duty to answer the reference in accordance with the amendment made by the order, unless the question referred is not couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law. | 1 | 3,690 | 420 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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law to a problem raised by the reference before the High Court is not normally excluded merely because at the date when the Tribunal decided the question the relevant law was not or could not be brought to its notice.Therefore, following this judgment, we must hold that Mr. Sastri is entitled to rely on the 1962 order and it is our duty to answer the reference in accordance with the amendment made by the order, unless the question referred is not couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law.13. Mr. Desai then raises two questions in respect of the order. First he says that it is the first time that the order is being relied on in these proceedings and he is entitled to urge before us that the order is bad. He has given a number of reasons in support of his plea that the order is ultra vires, but in view of the decision of this Court in K. S. Venkataraman v. State of Madras, Civil Appeal No. 18 of 1963 dated 18-10-1965: (AIR 1966 SC 1089 ), we refused to allow him to develop these objections. We may mention that he seeks to distinguish Venkataramans case, C. A. No. 618 of 1963 dated 18-10-1965: (AIR 1966 SC 1089 ) on the ground that the Supreme Court and the High Court are not creatures of the order which he was impugning. He further says that the Appellate Tribunal would also have been entitled to go into the question of the validity because the order is not part of the Income-tax Act, and it is not the creature of the order in the sense mentioned in Venkataramans case, C. A. No. 618 of 1963 dated 18-10-1965: (AIR 1966 SC 1089 ). We are not able to sustain the distinction sought to be made by Mr. Desai. The order is in effect an amendment of the Indian Income-tax Act insofar as it is applicable to the merged States. If it had not been for the order only the provisions of S. 10(5) of the Act would have been applied for the purpose of working out depreciation. Now, in view of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949, as explained by the 1962 order, a different rule has been directed to be applied and the Income-tax Officer is bound to follow this statutory direction. We are unable to see how the judgment in Venkataramans case, C. A. No. 618 of 1963 dated 18-10-1965: (AIR 1966 SC 1089 ) does not apply.14. Mr. Desai then contends that the 1962 order did not apply to this case because income of the assessee had not been exempted under the agreement with the ruler. He says that the words "exempted from tax in the 1962 order means that the assessee must have been liable to pay tax and then exemption granted. He points to the definition of the word "assessee in the Bhopal Income-tax Act, 1936 (VIII of 1936), which has been defined as "a person by whom income tax is payable. Then he refers to the charging section the relevant part of which reads as follows:"3. Whereby a notification in the jarida the Government declares that income-tax shall be charged for any year at any rate or rates applicable to the total income of an assessee, tax........He says that the respondent was not an assessee because under the agreement no income-tax was payable by it and for this reason no notice or assessment had been made under the Bhopal Income-tax Act.We are unable to sustain this contention. The definition of assessee must mean a person by whom income-tax is payable under the Bhopal Act. If it had not been for the agreement, the respondent would have been liable to pay tax and it is the agreement alone which exempted it from taxation.15. Mr. Desai then contends that the 1962 order is not retrospective and does not apply to assessments made before the order came into force. We see no force in this contention because the terms of the order are plain and if it is deemed, as directed by the order, that the expression "actually allowed under any laws or rules of a merged State should have the meaning ascribed to it by the Explanation, as from December 3, 1949, when the Taxation Laws (Merged States) (Removal of Difficulties) Order. 1949, came into force, the Explanation must apply to the assessments for the years 1952-53 and 1953-54.16. Lastly, Mr. Desai contends that the question referred to the High Court in this case is not couched in terms of sufficient amplitude to cover the points he has tried to make, namely, whether the order dated August 22, 1962 is retrospective and whether the assessee is covered by the terms of Cl. (b) of the Explanation. Looking at the question it seems to us that the substance of the question which was referred was whether the view held by the Income-tax Officer or the Appellate Assistant Commissioner was right, and the words "having regard to occurring in the question did not have the effect of restricting the laws that could be considered for answering the question. It may also be said that when paragraph 2 of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949, is referred to, it would include paragraph 2 as amended retrospectively. We must, therefore, overrule Mr. Desais objection and hold that the question framed by the Appellate Tribunal is wide enough to include a discussion of the amendments made retrospectively in the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949.17. In conclusion, applying the 1962 order to the facts of this case it is clear that the answer to the question referred must be that the correct basis for computing the written down value of the depreciable assets as on November 1, 1948. is the one which was adopted by the Income-tax Officer. I
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1
### Explanation:
, Mr. Desai contends that the question referred to the High Court in this case is not couched in terms of sufficient amplitude to cover the points he has tried to make, namely, whether the order dated August 22, 1962 is retrospective and whether the assessee is covered by the terms of Cl. (b) of the Explanation.Looking at the question it seems to us that the substance of the question which was referred was whether the view held by the Income-tax Officer or the Appellate Assistant Commissioner was right, and the words "having regard to occurring in the question did not have the effect of restricting the laws that could be considered for answering the question. It may also be said that when paragraph 2 of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949, is referred to, it would include paragraph 2 as amended retrospectively. We must, therefore, overrule Mr. Desais objection and hold that the question framed by the Appellate Tribunal is wide enough to include a discussion of the amendments made retrospectively in the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949.17. In conclusion, applying the 1962 order to the facts of this case it is clear that the answer to the question referred must be that the correct basis for computing the written down value of the depreciable assets as on November 1, 1948. is the one which was adopted by the Income-tax Officer.We are unable to give such an artificial meaning to the expression "all depreciation actually allowed under any laws or rules, and we agree with the High Court that the expression "actually allowed is unambiguous and connotes the idea that the allowance was actually given effect to.If it was intended to include any allowances which are not actually allowed then the Central Government would have added a deeming provision as the legislature did in the Explanation to S. 10(5) of thefollowing this judgment, we must hold that Mr. Sastri is entitled to rely on the 1962 order and it is our duty to answer the reference in accordance with the amendment made by the order, unless the question referred is not couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law.
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Union Of India Vs. Tata Teleservices(Maharashtra) Ltd | 14 of the Act going by the definition of licensee and the meaning given to it in the Notice Inviting Tenders. The argument of learned Senior Counsel on behalf of the respondent is that the expressions “licensor” and “licensee” are defined in the Act and the respondent had not become a licensee and the appellant had not become a licensor since the agreement was never entered into between the parties for providing telecom services in the Karnataka Telecom Circle and the attempt to rope in an intending licensee to whom a Letter of Intent has been issued or the entering into a contract is proposed, cannot be countenanced since the respondent has not become a licensee within the meaning of the Act and consequently this was not a dispute that came within the purview of Section 14(1) of the Act.15. We have already indicated that a specialised tribunal has been constituted for the purpose of dealing with specialised matters and disputes arising out of licenses granted under the Act. We therefore do not think that there is any reason to restrict the jurisdiction of the tribunal so constituted by keeping out of its purview a person whose offer has been accepted and to whom a letter of intent is issued by the Government and who had even accepted that letter of intent. Any breach or alleged breach of obligation arising after acceptance of the offer made in response to a Notice Inviting Tender, would also normally come within the purview of a dispute that is liable to settled by the specialised tribunal. We see no reason to restrict the expressions “licensor” or “licensee” occurring in Section 14(a)(i) of the Act and to exclude a person like the respondent who had been given a Letter of Intent regarding the Karnataka Circle, who had accepted the Letter of Intent but was trying to negotiate some further terms of common interest before a formal contract was entered into and the work was to be started. To exclude disputes arising between the parties thereafter on the failure of the contract to go through, does not appear to be warranted or justified considering the purpose for which the TDSAT has been established and the object sought to be achieved by the creation of a specialised tribunal. In Cellular Operators Association of India and others vs. Union of India and others [(2003) 3 SCC 186] this Court had occasion to consider the spread of Sections 14 and 14A of the Act. This Court held that the scope of Sections 14 and 14A are very wide and is not confined by restrictions generally imposed by judge made law on the tribunal exercising an appellate jurisdiction. Of course, their Lordships were considering in particular, the case of appellate jurisdiction. But this Court further said that the tribunal has the power to adjudicate on any dispute but while answering the dispute, due weight had to be given to the recommendations of the authority under the Act which consists of experts. This decision, though it did not directly deal with the power of the TDSAT as the original authority but was dealing with the power of the TDSAT as an appellate authority and the power of this Court in appeal, clearly gives an indication that there is no need to whittle down the scope of Sections 14 and 14A of the Act.16. It has also to be noted that while prescribing the procedure under Section 16 of the Act, what is said is that the TDSAT shall not be bound by the procedure laid down by the Code of Civil Procedure but it shall be guided by the principles of natural justice. It is significant to note that it is not a case of exclusion of the powers under the Code of Civil Procedure and conferment of specific powers in terms of sub-section (2) of that Section. It is really a right given to the TDSAT even to go outside the procedural shackles imposed by the Code of Civil Procedure while dealing with a dispute before it. Therefore, it will be difficult to keep out the provisions for the filing of a counter claim enshrined in Order VIII Rule 6A of the Code of Civil Procedure which could be applied by the TDSAT. The sweep of Order VIII Rule 6A of the Code now takes in even claims independent of the one put forward in the application if it is one the respondent therein has against the applicant. On the whole, we are of the view that the TDSAT was in error in dismissing the counter claim as not maintainable.17. In the light of our finding that the counter claim was maintainable and it requires to be investigated, we think that the proper course is to set aside the finding rendered by the TDSAT on the plea of set off raised by the appellant. This is in view of the fact that acceptance of the counter claim or even a part thereof might throw open the question of legal or equitable set-off, to be considered in the light of the finding on the counter claim. Therefore, we think this to be an appropriate case where we should reopen the whole matter without going into the merits of the contentions of parties on the plea of set off raised by the appellant and leave the question to be decided by the TDSAT along with the counter claim that has been made by the appellant. On taking note of the objection that the counter claim has not been made specific and has not been put forward in a proper manner, we are satisfied that it would be appropriate to direct the appellant to make a proper counter claim before the TDSAT within three months from today. The TDSAT thereafter will give the respondent an opportunity to file its written statement to the counter claim and then decide the claim made by the respondent and the counter claim afresh in accordance with law. | 1[ds]8. Section 16 of the Act provides that the TDSAT shall not be bound by the procedure laid down in the Code of Civil Procedure, but will be guided by the principles of natural justice and subject to the other provisions of the Act have the power to regulate its own procedure. It is also to have the specified powers under the Code of Civil Procedure like summoning of witnesses, discovery, issue of requisition of any public record, issue of commission, review of its decisions, dismissing an application for default or deciding it ex parte, for restoring an application dismissed for default or setting aside a decision rendered ex parte and any other matter which may be prescribed. Sub-section (3) of Section 16 specifies that every proceeding before the TDSAT shall be deemed to be a judicial proceeding in terms of the Indian Penal Code and the TDSAT shall be deemed to be a civil court for the purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure. Section 17 confers right on the parties to legal representation. Parties could authorise one or more chartered accountants, company secretaries, cost accountants or legal practitioners or any of its officers to represent its case. Section 18 confers the right of appeal to the Supreme Court on a substantial question of law. Section 19 provides that orders passed by the TDSAT shall be executable as decrees through the TDSAT, but it has also the power to transmit any order made by it to a civil court to execute the order as if it were a decree made by that court. Section 20 provides for penalties for wilful failure to comply with the orders of the TDSAT. Section 27 of the Act one again indicates that no civil court has jurisdiction in respect of any matter which the Authority is empowered by or under the Act to determine.9. The conspectus of the provisions of the Act clearly indicates that disputes between the licensee or licensor, between two or more service providers which takes in the Government and includes a licensee and between a service provider and a group of consumers are within the purview of the TDSAT. A plain reading of the relevant provisions of the Act in the light of the preamble to the Act and the Objects and Reasons for enacting the Act, indicates that disputes between the concerned parties, which would involve significant technical aspects, are to be determined by a specialised tribunal constituted for that purpose. There is also an ouster of jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter which the TDSAT is empowered by or under the Act to determine. The civil court also has no jurisdiction to grant an injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The constitution of the TDSAT itself indicates that it is chaired by a sitting or retired Judge of the Supreme Court or sitting or a retired Chief Justice of the High Court, one of the highest judicial officers in the hierarchy and the members thereof have to be of the cadre of secretaries to the Government, obviously well experienced in administration and administrative matters.10. The Act is seen to be a self contained Code intended to deal with all disputes arising out of telecommunication services provided in this country in the light of the National Telecom Policy, 1994. This is emphasised by the Objects and Reasons also.11. Normally, when a specialised tribunal is constituted for dealing with disputes coming under it of a particular nature taking in serious technical aspects, the attempt must be to construe the jurisdiction conferred on it in a manner as not to frustrate the object sought to be achieved by the Act. In this context, the ousting of the jurisdiction of the Civil Court contained in Section 15 and Section 27 of the Act has also to be kept in mind. The subject to be dealt with under the Act, has considerable technical overtones which normally a civil court, at least as of now, is ill-equipped to handle and this aspect cannot be ignored while defining the jurisdiction of the TDSAT.12. Section 14A of the Act gives the right to the Central Government, or to the State Government to approach TDSAT on its own. Going by the definitions in the Act, both Governments could be. The Central Government could also be the licensor. Thus, either as a licensor or a service provider, the Central Government could make an application to TDSAT seeking an adjudication of any dispute between it and the licensee or between it and another service provider or between it and a group of consumers. It has actually to make its claim in TDSAT. There is no reason to whittle down the right given to the Central Government to approach the TDSAT for an adjudication of its claim which comes under Section 14(1) of the Act. Normally, a right to make a claim would also include a right to make a cross-claim or counter claim in the sense that the Central Government could always make an independent claim on matters covered under the Act and such a claim will have to be entertained by the TDSAT. This the Central Government could do even while it is defending a claim made against it in TDSAT, by way of a separate application. If a subject matter is capable of being raised before the TDSAT by the Central Government or the State Government by way of a claim by making an application under Section 14 of the Act, it would not be logical to hold that the same claim could not be made by way of a counter claim when the other side, namely, the licensee or consumers, had already approached the TDSAT with a claim of their own and the Central Government is called upon to defend it. It is, therefore, not possible to accept an argument that a counter claim by the Central Government or State Government cannot be entertained by the TDSAT. We hold that the TDSAT has jurisdiction to entertain a counter claim in the light of Section 14(1) and 14A of the Act.13. The thrust of the argument on behalf of the respondent before us was, in a case where, a licence had not actually been issued to a party by the Central Government, the dispute could not be said to be one between a licensor and a licensee, contemplated by Section 14(a)(i) or (ii) of the Act. It is submitted that only on the actual grant of a licence, a person would become a licensee under the Central Government and only a dispute arising after the grant of a licence would come within the purview of the Act. The wording of the definition of licensee is emphasised in support. Considering the purpose for which the Act is brought into force and the TDSAT is created, we think that there is no warrant for accepting such a narrow approach or to adopt such a narrow construction. It will be appropriate to understand the scope of Section 14(a)(i) of the Act and for that matter Section 14(a)(ii) of the Act also, as including those to whom licenses were intended to be issued and as taking in also disputes that commence on the tender or offer of a person being accepted. In other words, a dispute commencing with the acceptance of a tender leading to the possible issue of a licence and disputes arising out of the grant of licence even after the period has expired would all come within the purview of Section 14(a) of the Act. To put it differently, Section 14 takes within its sweep disputes following the issue of a Letter of Intent pre grant of actual licence as also disputes arising out of a licence granted between a quondam licensee and the licensor.14. In the case on hand, the Notice Inviting Tender defined aas a registered Indian Company that will be awarded licence for providing the service. Now, pursuant to that invitation, the predecessor of the respondent submitted its tender and the appellant accepted it. A Letter of Intent was also issued. The respondent accepted and started negotiating for certain modifications, which apparently the appellant was willing to consider. But ultimately, the contract did not come into being. The licence was not actually granted. It is the case of the appellant that the appellant had suffered considerable loss because of the respondent walking out of the obligation undertaken by acceptance of the Letter of Intent. According to the learned Additional Solicitor General appearing for the appellant, such a dispute would also come within the purview of Section 14 of the Act going by the definition of licensee and the meaning given to it in the Notice Inviting Tenders. The argument of learned Senior Counsel on behalf of the respondent is that the expressionsare defined in the Act and the respondent had not become a licensee and the appellant had not become a licensor since the agreement was never entered into between the parties for providing telecom services in the Karnataka Telecom Circle and the attempt to rope in an intending licensee to whom a Letter of Intent has been issued or the entering into a contract is proposed, cannot be countenanced since the respondent has not become a licensee within the meaning of the Act and consequently this was not a dispute that came within the purview of Section 14(1) of the Act.15. We have already indicated that a specialised tribunal has been constituted for the purpose of dealing with specialised matters and disputes arising out of licenses granted under the Act. We therefore do not think that there is any reason to restrict the jurisdiction of the tribunal so constituted by keeping out of its purview a person whose offer has been accepted and to whom a letter of intent is issued by the Government and who had even accepted that letter of intent. Any breach or alleged breach of obligation arising after acceptance of the offer made in response to a Notice Inviting Tender, would also normally come within the purview of a dispute that is liable to settled by the specialised tribunal. We see no reason to restrict the expressionsoccurring in Section 14(a)(i) of the Act and to exclude a person like the respondent who had been given a Letter of Intent regarding the Karnataka Circle, who had accepted the Letter of Intent but was trying to negotiate some further terms of common interest before a formal contract was entered into and the work was to be started. To exclude disputes arising between the parties thereafter on the failure of the contract to go through, does not appear to be warranted or justified considering the purpose for which the TDSAT has been established and the object sought to be achieved by the creation of a specialised tribunal. In Cellular Operators Association of India and others vs. Union of India and others [(2003) 3 SCC 186] this Court had occasion to consider the spread of Sections 14 and 14A of the Act. This Court held that the scope of Sections 14 and 14A are very wide and is not confined by restrictions generally imposed by judge made law on the tribunal exercising an appellate jurisdiction. Of course, their Lordships were considering in particular, the case of appellate jurisdiction. But this Court further said that the tribunal has the power to adjudicate on any dispute but while answering the dispute, due weight had to be given to the recommendations of the authority under the Act which consists of experts. This decision, though it did not directly deal with the power of the TDSAT as the original authority but was dealing with the power of the TDSAT as an appellate authority and the power of this Court in appeal, clearly gives an indication that there is no need to whittle down the scope of Sections 14 and 14A of the Act.16. It has also to be noted that while prescribing the procedure under Section 16 of the Act, what is said is that the TDSAT shall not be bound by the procedure laid down by the Code of Civil Procedure but it shall be guided by the principles of natural justice. It is significant to note that it is not a case of exclusion of the powers under the Code of Civil Procedure and conferment of specific powers in terms of sub-section (2) of that Section. It is really a right given to the TDSAT even to go outside the procedural shackles imposed by the Code of Civil Procedure while dealing with a dispute before it. Therefore, it will be difficult to keep out the provisions for the filing of a counter claim enshrined in Order VIII Rule 6A of the Code of Civil Procedure which could be applied by the TDSAT. The sweep of Order VIII Rule 6A of the Code now takes in even claims independent of the one put forward in the application if it is one the respondent therein has against the applicant. On the whole, we are of the view that the TDSAT was in error in dismissing the counter claim as not maintainable.17. In the light of our finding that the counter claim was maintainable and it requires to be investigated, we think that the proper course is to set aside the finding rendered by the TDSAT on the plea of set off raised by the appellant. This is in view of the fact that acceptance of the counter claim or even a part thereof might throw open the question of legal or equitable set-off, to be considered in the light of the finding on the counter claim. Therefore, we think this to be an appropriate case where we should reopen the whole matter without going into the merits of the contentions of parties on the plea of set off raised by the appellant and leave the question to be decided by the TDSAT along with the counter claim that has been made by the appellant. On taking note of the objection that the counter claim has not been made specific and has not been put forward in a proper manner, we are satisfied that it would be appropriate to direct the appellant to make a proper counter claim before the TDSAT within three months from today. The TDSAT thereafter will give the respondent an opportunity to file its written statement to the counter claim and then decide the claim made by the respondent and the counter claim afresh in accordance with law. | 1 | 4,792 | 2,643 | ### 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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14 of the Act going by the definition of licensee and the meaning given to it in the Notice Inviting Tenders. The argument of learned Senior Counsel on behalf of the respondent is that the expressions “licensor” and “licensee” are defined in the Act and the respondent had not become a licensee and the appellant had not become a licensor since the agreement was never entered into between the parties for providing telecom services in the Karnataka Telecom Circle and the attempt to rope in an intending licensee to whom a Letter of Intent has been issued or the entering into a contract is proposed, cannot be countenanced since the respondent has not become a licensee within the meaning of the Act and consequently this was not a dispute that came within the purview of Section 14(1) of the Act.15. We have already indicated that a specialised tribunal has been constituted for the purpose of dealing with specialised matters and disputes arising out of licenses granted under the Act. We therefore do not think that there is any reason to restrict the jurisdiction of the tribunal so constituted by keeping out of its purview a person whose offer has been accepted and to whom a letter of intent is issued by the Government and who had even accepted that letter of intent. Any breach or alleged breach of obligation arising after acceptance of the offer made in response to a Notice Inviting Tender, would also normally come within the purview of a dispute that is liable to settled by the specialised tribunal. We see no reason to restrict the expressions “licensor” or “licensee” occurring in Section 14(a)(i) of the Act and to exclude a person like the respondent who had been given a Letter of Intent regarding the Karnataka Circle, who had accepted the Letter of Intent but was trying to negotiate some further terms of common interest before a formal contract was entered into and the work was to be started. To exclude disputes arising between the parties thereafter on the failure of the contract to go through, does not appear to be warranted or justified considering the purpose for which the TDSAT has been established and the object sought to be achieved by the creation of a specialised tribunal. In Cellular Operators Association of India and others vs. Union of India and others [(2003) 3 SCC 186] this Court had occasion to consider the spread of Sections 14 and 14A of the Act. This Court held that the scope of Sections 14 and 14A are very wide and is not confined by restrictions generally imposed by judge made law on the tribunal exercising an appellate jurisdiction. Of course, their Lordships were considering in particular, the case of appellate jurisdiction. But this Court further said that the tribunal has the power to adjudicate on any dispute but while answering the dispute, due weight had to be given to the recommendations of the authority under the Act which consists of experts. This decision, though it did not directly deal with the power of the TDSAT as the original authority but was dealing with the power of the TDSAT as an appellate authority and the power of this Court in appeal, clearly gives an indication that there is no need to whittle down the scope of Sections 14 and 14A of the Act.16. It has also to be noted that while prescribing the procedure under Section 16 of the Act, what is said is that the TDSAT shall not be bound by the procedure laid down by the Code of Civil Procedure but it shall be guided by the principles of natural justice. It is significant to note that it is not a case of exclusion of the powers under the Code of Civil Procedure and conferment of specific powers in terms of sub-section (2) of that Section. It is really a right given to the TDSAT even to go outside the procedural shackles imposed by the Code of Civil Procedure while dealing with a dispute before it. Therefore, it will be difficult to keep out the provisions for the filing of a counter claim enshrined in Order VIII Rule 6A of the Code of Civil Procedure which could be applied by the TDSAT. The sweep of Order VIII Rule 6A of the Code now takes in even claims independent of the one put forward in the application if it is one the respondent therein has against the applicant. On the whole, we are of the view that the TDSAT was in error in dismissing the counter claim as not maintainable.17. In the light of our finding that the counter claim was maintainable and it requires to be investigated, we think that the proper course is to set aside the finding rendered by the TDSAT on the plea of set off raised by the appellant. This is in view of the fact that acceptance of the counter claim or even a part thereof might throw open the question of legal or equitable set-off, to be considered in the light of the finding on the counter claim. Therefore, we think this to be an appropriate case where we should reopen the whole matter without going into the merits of the contentions of parties on the plea of set off raised by the appellant and leave the question to be decided by the TDSAT along with the counter claim that has been made by the appellant. On taking note of the objection that the counter claim has not been made specific and has not been put forward in a proper manner, we are satisfied that it would be appropriate to direct the appellant to make a proper counter claim before the TDSAT within three months from today. The TDSAT thereafter will give the respondent an opportunity to file its written statement to the counter claim and then decide the claim made by the respondent and the counter claim afresh in accordance with law.
### Response:
1
### Explanation:
also come within the purview of Section 14 of the Act going by the definition of licensee and the meaning given to it in the Notice Inviting Tenders. The argument of learned Senior Counsel on behalf of the respondent is that the expressionsare defined in the Act and the respondent had not become a licensee and the appellant had not become a licensor since the agreement was never entered into between the parties for providing telecom services in the Karnataka Telecom Circle and the attempt to rope in an intending licensee to whom a Letter of Intent has been issued or the entering into a contract is proposed, cannot be countenanced since the respondent has not become a licensee within the meaning of the Act and consequently this was not a dispute that came within the purview of Section 14(1) of the Act.15. We have already indicated that a specialised tribunal has been constituted for the purpose of dealing with specialised matters and disputes arising out of licenses granted under the Act. We therefore do not think that there is any reason to restrict the jurisdiction of the tribunal so constituted by keeping out of its purview a person whose offer has been accepted and to whom a letter of intent is issued by the Government and who had even accepted that letter of intent. Any breach or alleged breach of obligation arising after acceptance of the offer made in response to a Notice Inviting Tender, would also normally come within the purview of a dispute that is liable to settled by the specialised tribunal. We see no reason to restrict the expressionsoccurring in Section 14(a)(i) of the Act and to exclude a person like the respondent who had been given a Letter of Intent regarding the Karnataka Circle, who had accepted the Letter of Intent but was trying to negotiate some further terms of common interest before a formal contract was entered into and the work was to be started. To exclude disputes arising between the parties thereafter on the failure of the contract to go through, does not appear to be warranted or justified considering the purpose for which the TDSAT has been established and the object sought to be achieved by the creation of a specialised tribunal. In Cellular Operators Association of India and others vs. Union of India and others [(2003) 3 SCC 186] this Court had occasion to consider the spread of Sections 14 and 14A of the Act. This Court held that the scope of Sections 14 and 14A are very wide and is not confined by restrictions generally imposed by judge made law on the tribunal exercising an appellate jurisdiction. Of course, their Lordships were considering in particular, the case of appellate jurisdiction. But this Court further said that the tribunal has the power to adjudicate on any dispute but while answering the dispute, due weight had to be given to the recommendations of the authority under the Act which consists of experts. This decision, though it did not directly deal with the power of the TDSAT as the original authority but was dealing with the power of the TDSAT as an appellate authority and the power of this Court in appeal, clearly gives an indication that there is no need to whittle down the scope of Sections 14 and 14A of the Act.16. It has also to be noted that while prescribing the procedure under Section 16 of the Act, what is said is that the TDSAT shall not be bound by the procedure laid down by the Code of Civil Procedure but it shall be guided by the principles of natural justice. It is significant to note that it is not a case of exclusion of the powers under the Code of Civil Procedure and conferment of specific powers in terms of sub-section (2) of that Section. It is really a right given to the TDSAT even to go outside the procedural shackles imposed by the Code of Civil Procedure while dealing with a dispute before it. Therefore, it will be difficult to keep out the provisions for the filing of a counter claim enshrined in Order VIII Rule 6A of the Code of Civil Procedure which could be applied by the TDSAT. The sweep of Order VIII Rule 6A of the Code now takes in even claims independent of the one put forward in the application if it is one the respondent therein has against the applicant. On the whole, we are of the view that the TDSAT was in error in dismissing the counter claim as not maintainable.17. In the light of our finding that the counter claim was maintainable and it requires to be investigated, we think that the proper course is to set aside the finding rendered by the TDSAT on the plea of set off raised by the appellant. This is in view of the fact that acceptance of the counter claim or even a part thereof might throw open the question of legal or equitable set-off, to be considered in the light of the finding on the counter claim. Therefore, we think this to be an appropriate case where we should reopen the whole matter without going into the merits of the contentions of parties on the plea of set off raised by the appellant and leave the question to be decided by the TDSAT along with the counter claim that has been made by the appellant. On taking note of the objection that the counter claim has not been made specific and has not been put forward in a proper manner, we are satisfied that it would be appropriate to direct the appellant to make a proper counter claim before the TDSAT within three months from today. The TDSAT thereafter will give the respondent an opportunity to file its written statement to the counter claim and then decide the claim made by the respondent and the counter claim afresh in accordance with law.
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M/S. NANDHINI DELUXE Vs. M/S. KARNATAKA COOPERATIVE MILK PRODUCERS FEDERATION LTD. REP. BY ITS MANAGING DIRECTOR | Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of Section 12 of the Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression goods and description of goods appearing in Section 12(1) of the Trade Marks Act indicate that registration may be made in respect of one or more goods or of all goods conforming a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in Section 46, Sections 12 and 34 and class of goods in Section 18, Rules 12 and 26 read with Fourth Schedule to the Rules framed under the Act. 48. The class mentioned in the Fourth Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. Manufactured tobacco is a class mentioned in Class 34 of Fourth Schedule of the Rules but within the said class, there are a number of distinctly identifiable goods which are marketed separately and also used differently. In our view, it is not only permissible but it will be only just and proper to register one or more articles under a class or genus if in reality registration only in respect of such articles is intended, by specifically mentioning the names of such articles and by indicating the class under which such article or articles are to be comprised. It is, therefore, permissible to register only cigarette or some other specific products made of manufactured tobacco as mentioned in Class 34 of Fourth Schedule of the Rules. In our view, the contention of Mr Vaidyanathan that in view of change in the language of Section 8 of the Trade Marks Act as compared to Section 5 of the Trade Marks Act, 1940, registration of trade mark is to be made only in respect of class or genus and not in respect of articles of different species under the genus is based on incorrect appreciation of Section 8 of the Trade Marks Act and Fourth Schedule of the Rules. 31. We may mention that the aforesaid principle of law while interpreting the provisions of Trade and Merchandise Act, 1958 is equally applicable as it is unaffected by the Trade Marks Act, 1999 inasmuch as the main object underlying the said principle is that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods and, particularly, when he is not using the said trade mark in respect of certain goods falling under the same class. In this behalf, we may usefully refer to Section 11 of the Act which prohibits the registration of the mark in respect of the similar goods or different goods but the provisions of this Section do not cover the same class of goods. 32. The aforesaid discussion leads us to hold that all the ingredients laid down in Section 11(2) of the Act, as explained by the Delhi High Court in Nestle India Ltd., have not been satisfied. We are not persuaded to hold, on the facts of this case, that the appellant has adopted the trade mark to take unfair advantage of the trade mark of the respondent. We also hold that use of NANDHINI by appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the respondent. It is to be kept in mind that the appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the respondent had started using the trade mark NANDINI. There is no document or material produced by the respondent to show that by the year 1989 the respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the appellant. 33. There is some force in the argument of learned counsel for the appellant that IPAB while passing orders dated 4th October, 2011 ignored its earlier order, of a Coordinate Bench, passed on 20th April, 2010. Appeal in which order dated 20th April, 2010 was passed was between the same parties on identical issue. The IPAB had dismissed the said appeal of the respondent and that order had attained finality. Prima facie, this would act as an issue of estoppel between the parties (see the Bhanu Kumar Jain vs. Archana Kumar and Anr., (2005) 1 SCC 787 ; Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another, (1999) 5 SCC 590 ). However, as we are holding that the impugned orders of the IPAB and High Court are not sustainable in law and have decided these appeals on merits it is not necessary to make any further comments on the aforesaid aspect. | 1[ds]3. Before we proceed further, it is pertinent to mention at this stage that the milk and milk products, which are sold by the respondent under the trade mark of NANDINI, fall under Class 29 and Class 30 as per classification under Schedule IV to the Trade Marks Rules, 2002. On the other hand, various kinds of foodstuffs sold by the appellant in its restaurants also fall under Class 29 and 30 as well as other Classes.We proceed on the presumption that the trade mark NANDHINI, which is registered in the name of the appellant has acquired distinctiveness though the appellant disputes the same. Otherwise also there is no challenge to the registration of this name in favour of the respondent.(A) Respondent started using trade mark in respect of its products, namely, milk and milk products in the year 1985. As against that, the appellant adopted trade mark NANDHINI in respect of its goods in the year 1989.(B) Though, the respondent is a prior user, the appellant also had been using this trade mark NANDHINI for 12-13 years before it applied for registration of these trade marks in respect of its products.(C) The goods of the appellant as well as respondent fall under the same Classes 29 and 30. Notwithstanding the same, the goods of the appellant are different from that of the respondent. Whereas the respondent is producing and selling only milk and milk products the goods of the appellant are fish, meat, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, edible oils and fats, salad dressings, preserves etc. and it has given up its claim qua milk and milk products.(D) Insofar as application for registration of the milk and milk products is concerned, it was not granted by the trade mark registry. In fact, the same was specifically rejected. The appellant was directed to file the affidavit and Form 16 in this behalf to delete the goods milk and milk products which affidavit was filed by the appellant. Further concession is already recorded above.(E) NANDINI/NANDHINI is a generic, it represents the name of Goddess and a cow in Hindu Mythology. It is not an invented or coined word of the respondent.(F) The nature and style of the business of the appellant and the respondent are altogether different. Whereas respondent is a Cooperative Federation of Milk Producers of Karnataka and is producing and selling milk and milk products under the mark NANDINI, the business of the appellant is that of running restaurants and the registration of mark NANDHINI as sought by the appellant is in respect of various foodstuffs sold by it in its restaurants.(G) Though there is a phonetic similarity insofar as the words NANDHINI/NANDINI are concerned, the trade mark with logo adopted by the two parties are altogether different. The manner in which the appellant has written NANDHINI as its mark is totally different from the style adopted by the respondent for its mark NANDINI. Further, the appellant has used and added the word Deluxe and, thus, its mark is NANDHINI DELUXE. It is followed by the words the real spice of life. There is device of lamp with the word NANDHINI. In contrast, the respondent has used only one word, namely, NANDINI which is not prefixed or suffixed by any word. In its mark Cow as a logo is used beneath which the word NANDINI is written, it is encircled by egg shape circle. A bare perusal of the two marks would show that there is hardly any similarity of the appellants mark with that of the respondent when these marks are seen in totality.25. When we examine the matter keeping in mind the aforesaid salient features, it is difficult to sustain the conclusion of the IPAB in its order dated 4th October, 2011 as well in the impugned order of the High Court that the mark adopted by the appellant will cause any confusion in the mind of consumers, what to talk of deception. We do not find that the the two marks are deceptively similar.26. We are of further opinion that the earlier order dated 20th April, 2010 of IPAB approached the subject matter in correct perspective. The test laid down in Polaroid Corporation vs. Polarad Electronics Corporation, 11 287 F.2d 492 (1961) is as follows:The problem of determining how far a valid trademark shall be protected with respect to goods other than those to which its owner has applied it, has long been vexing and does not become easier of solution with the years. Neither of our recent decisions so heavily relied upon by the parties, Harold F. Ritchie, Inc. v. Chesebrough-Ponds, Inc., 2 Cir., 1960, 281 F.2d 755, by plaintiff, and Avon Shoe Co., Inc. v. David Crystal, Inc., 2 Cir., 1960, 279 F.2d 607 by defendant, affords much assistance, since in the Ritchie case there was confusion as to the identical product and the defendant in the Avon case had adopted its mark without knowledge of the plaintiffs prior use, at page 611. Where the products are different, the prior owners chance of success is a function of many variables: the strength of his mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, and the reciprocal of defendants good faith in adopting its own mark, the quality of defendants product, and the sophistication of the buyers. Even this extensive catalogue does not exhaust the possibilities the court may have to take still other variables into account. American Law Institute, Restatement of Torts, 729, 730, 731. Here plaintiffs mark is a strong one and the similarity between the two names is great, but the evidence of actual confusion, when analyzed, is not impressive. The filter seems to be the only case where defendant has sold, but not manufactured, a product serving a function similar to any of plaintiffs, and plaintiffs sales of this item have been highly irregular, varying, e. g., from $2,300 in 1953 to $303,000 in 1955, and $48,000 in 1956.27. This Court in National Sewing Thread Co. Ltd. vs. James Chadwick and Bros., (1953) AIR SC 357 accepted the following principles which are to be applied in such cases:22. The principles of law applicable to such cases are well settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of Section 8 and therefore it should be registered. Moreover in deciding whether a particular trade mark is likely to deceive or cause confusion that duty is not discharged by arriving at the result by merely comparing it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the mark. The real question to decide in such cases is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing.28. Applying the aforesaid principles to the instant case, when we find that not only visual appearance of the two marks is different, they even relate to different products. Further, the manner in which they are traded by the appellant and respondent respectively, highlighted above, it is difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent.29. One other significant factor which is lost sight of by the IPAB as well as the High Court is that the appellant is operating a restaurant under the trademark NANDHINI and it had applied the trademark in respect of goods like coffee, tea, cocoa, sugar, rice, rapioca, sago, artificial coffee, flour and preparations made from cereals, bread, pastry, spices, bill books, visiting cards, meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces, etc. which are used in the products/services of restaurant business. The aforesaid items do not belong to Class 29 or 30. Likewise, stationery items used by the appellant in the aid of its restaurant services are relatable to Class 16. In these circumstances, there was hardly any question of confusion or deception.30. Having arrived at the aforesaid conclusion, the reasoning of the High Court that the goods belonging to the appellant and the respondent (though the nature of goods is different) belong to same class and, therefore, it would be impermissible for the appellant to have the registration of the concerned trade mark in its favour, would be meaningless. That apart, there is no such principle of law. On the contrary, this Court in Vishnudas Trading as Vishnudas Kushandas2 has decided otherwise as can be seen from the reading of para 47 of the said judgment:-47. The respondent Company got registration of its brand name Charminar under the broad classification manufactured tobacco. So long such registration remains operative, the respondent Company is entitled to claim exclusive use of the said brand name in respect of articles made of tobacco coming under the said broad classification manufactured tobacco. Precisely for the said reason, when the appellant made application for registration of quiwam and zarda under the same brand name Charminar, such prayer for registration was not allowed. The appellant, therefore, made application for rectification of the registration made in favour of the respondent Company so that the said registration is limited only in respect of the articles being manufactured and marketed by the respondent Company, namely, cigarettes. In our view, if a trader or manufacturer actually trades in or manufactures only one or some of the articles coming under a broad classification and such trader or manufacturer has no bona fide intention to trade in or manufacture other goods or articles which also fall under the said broad classification, such trader or manufacturer should not be permitted to enjoy monopoly in respect of all the articles which may come under such broad classification and by that process preclude the other traders or manufacturers from getting registration of separate and distinct goods which may also be grouped under the broad classification. If registration has been given generally in respect of all the articles coming under the broad classification and if it is established that the trader or manufacturer who got such registration had not intended to use any other article except the articles being used by such trader or manufacturer, the registration of such trader is liable to be rectified by limiting the ambit of registration and confining such registration to the specific article or articles which really concern the trader or manufacturer enjoying the registration made in his favour. In our view, if rectification in such circumstances is not allowed, the trader or manufacturer by virtue of earlier registration will be permitted to enjoy the mischief of trafficking in trade mark. Looking to the scheme of the registration of trade mark as envisaged in the Trade Marks Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of Section 12 of the Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression goods and description of goods appearing in Section 12(1) of the Trade Marks Act indicate that registration may be made in respect of one or more goods or of all goods conforming a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in Section 46, Sections 12 and 34 and class of goods in Section 18, Rules 12 and 26 read with Fourth Schedule to the Rules framed under the Act.48. The class mentioned in the Fourth Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. Manufactured tobacco is a class mentioned in Class 34 of Fourth Schedule of the Rules but within the said class, there are a number of distinctly identifiable goods which are marketed separately and also used differently. In our view, it is not only permissible but it will be only just and proper to register one or more articles under a class or genus if in reality registration only in respect of such articles is intended, by specifically mentioning the names of such articles and by indicating the class under which such article or articles are to be comprised. It is, therefore, permissible to register only cigarette or some other specific products made of manufactured tobacco as mentioned in Class 34 of Fourth Schedule of the Rules. In our view, the contention of Mr Vaidyanathan that in view of change in the language of Section 8 of the Trade Marks Act as compared to Section 5 of the Trade Marks Act, 1940, registration of trade mark is to be made only in respect of class or genus and not in respect of articles of different species under the genus is based on incorrect appreciation of Section 8 of the Trade Marks Act and Fourth Schedule of the Rules.31. We may mention that the aforesaid principle of law while interpreting the provisions of Trade and Merchandise Act, 1958 is equally applicable as it is unaffected by the Trade Marks Act, 1999 inasmuch as the main object underlying the said principle is that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods and, particularly, when he is not using the said trade mark in respect of certain goods falling under the same class. In this behalf, we may usefully refer to Section 11 of the Act which prohibits the registration of the mark in respect of the similar goods or different goods but the provisions of this Section do not cover the same class of goods.32. The aforesaid discussion leads us to hold that all the ingredients laid down in Section 11(2) of the Act, as explained by the Delhi High Court in Nestle India Ltd., have not been satisfied. We are not persuaded to hold, on the facts of this case, that the appellant has adopted the trade mark to take unfair advantage of the trade mark of the respondent. We also hold that use of NANDHINI by appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the respondent. It is to be kept in mind that the appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the respondent had started using the trade mark NANDINI. There is no document or material produced by the respondent to show that by the year 1989 the respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the appellant.33. There is some force in the argument of learned counsel for the appellant that IPAB while passing orders dated 4th October, 2011 ignored its earlier order, of a Coordinate Bench, passed on 20th April, 2010. Appeal in which order dated 20th April, 2010 was passed was between the same parties on identical issue. The IPAB had dismissed the said appeal of the respondent and that order had attained finality. Prima facie, this would act as an issue of estoppel between the parties (see the Bhanu Kumar Jain vs. Archana Kumar and Anr., (2005) 1 SCC 787 ; Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another, (1999) 5 SCC 590 ). However, as we are holding that the impugned orders of the IPAB and High Court are not sustainable in law and have decided these appeals on merits it is not necessary to make any further comments on the aforesaid aspect. | 1 | 10,877 | 3,185 | ### 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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Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of Section 12 of the Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression goods and description of goods appearing in Section 12(1) of the Trade Marks Act indicate that registration may be made in respect of one or more goods or of all goods conforming a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in Section 46, Sections 12 and 34 and class of goods in Section 18, Rules 12 and 26 read with Fourth Schedule to the Rules framed under the Act. 48. The class mentioned in the Fourth Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. Manufactured tobacco is a class mentioned in Class 34 of Fourth Schedule of the Rules but within the said class, there are a number of distinctly identifiable goods which are marketed separately and also used differently. In our view, it is not only permissible but it will be only just and proper to register one or more articles under a class or genus if in reality registration only in respect of such articles is intended, by specifically mentioning the names of such articles and by indicating the class under which such article or articles are to be comprised. It is, therefore, permissible to register only cigarette or some other specific products made of manufactured tobacco as mentioned in Class 34 of Fourth Schedule of the Rules. In our view, the contention of Mr Vaidyanathan that in view of change in the language of Section 8 of the Trade Marks Act as compared to Section 5 of the Trade Marks Act, 1940, registration of trade mark is to be made only in respect of class or genus and not in respect of articles of different species under the genus is based on incorrect appreciation of Section 8 of the Trade Marks Act and Fourth Schedule of the Rules. 31. We may mention that the aforesaid principle of law while interpreting the provisions of Trade and Merchandise Act, 1958 is equally applicable as it is unaffected by the Trade Marks Act, 1999 inasmuch as the main object underlying the said principle is that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods and, particularly, when he is not using the said trade mark in respect of certain goods falling under the same class. In this behalf, we may usefully refer to Section 11 of the Act which prohibits the registration of the mark in respect of the similar goods or different goods but the provisions of this Section do not cover the same class of goods. 32. The aforesaid discussion leads us to hold that all the ingredients laid down in Section 11(2) of the Act, as explained by the Delhi High Court in Nestle India Ltd., have not been satisfied. We are not persuaded to hold, on the facts of this case, that the appellant has adopted the trade mark to take unfair advantage of the trade mark of the respondent. We also hold that use of NANDHINI by appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the respondent. It is to be kept in mind that the appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the respondent had started using the trade mark NANDINI. There is no document or material produced by the respondent to show that by the year 1989 the respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the appellant. 33. There is some force in the argument of learned counsel for the appellant that IPAB while passing orders dated 4th October, 2011 ignored its earlier order, of a Coordinate Bench, passed on 20th April, 2010. Appeal in which order dated 20th April, 2010 was passed was between the same parties on identical issue. The IPAB had dismissed the said appeal of the respondent and that order had attained finality. Prima facie, this would act as an issue of estoppel between the parties (see the Bhanu Kumar Jain vs. Archana Kumar and Anr., (2005) 1 SCC 787 ; Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another, (1999) 5 SCC 590 ). However, as we are holding that the impugned orders of the IPAB and High Court are not sustainable in law and have decided these appeals on merits it is not necessary to make any further comments on the aforesaid aspect.
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in the Trade Marks Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of Section 12 of the Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression goods and description of goods appearing in Section 12(1) of the Trade Marks Act indicate that registration may be made in respect of one or more goods or of all goods conforming a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in Section 46, Sections 12 and 34 and class of goods in Section 18, Rules 12 and 26 read with Fourth Schedule to the Rules framed under the Act.48. The class mentioned in the Fourth Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. Manufactured tobacco is a class mentioned in Class 34 of Fourth Schedule of the Rules but within the said class, there are a number of distinctly identifiable goods which are marketed separately and also used differently. In our view, it is not only permissible but it will be only just and proper to register one or more articles under a class or genus if in reality registration only in respect of such articles is intended, by specifically mentioning the names of such articles and by indicating the class under which such article or articles are to be comprised. It is, therefore, permissible to register only cigarette or some other specific products made of manufactured tobacco as mentioned in Class 34 of Fourth Schedule of the Rules. In our view, the contention of Mr Vaidyanathan that in view of change in the language of Section 8 of the Trade Marks Act as compared to Section 5 of the Trade Marks Act, 1940, registration of trade mark is to be made only in respect of class or genus and not in respect of articles of different species under the genus is based on incorrect appreciation of Section 8 of the Trade Marks Act and Fourth Schedule of the Rules.31. We may mention that the aforesaid principle of law while interpreting the provisions of Trade and Merchandise Act, 1958 is equally applicable as it is unaffected by the Trade Marks Act, 1999 inasmuch as the main object underlying the said principle is that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods and, particularly, when he is not using the said trade mark in respect of certain goods falling under the same class. In this behalf, we may usefully refer to Section 11 of the Act which prohibits the registration of the mark in respect of the similar goods or different goods but the provisions of this Section do not cover the same class of goods.32. The aforesaid discussion leads us to hold that all the ingredients laid down in Section 11(2) of the Act, as explained by the Delhi High Court in Nestle India Ltd., have not been satisfied. We are not persuaded to hold, on the facts of this case, that the appellant has adopted the trade mark to take unfair advantage of the trade mark of the respondent. We also hold that use of NANDHINI by appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the respondent. It is to be kept in mind that the appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the respondent had started using the trade mark NANDINI. There is no document or material produced by the respondent to show that by the year 1989 the respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the appellant.33. There is some force in the argument of learned counsel for the appellant that IPAB while passing orders dated 4th October, 2011 ignored its earlier order, of a Coordinate Bench, passed on 20th April, 2010. Appeal in which order dated 20th April, 2010 was passed was between the same parties on identical issue. The IPAB had dismissed the said appeal of the respondent and that order had attained finality. Prima facie, this would act as an issue of estoppel between the parties (see the Bhanu Kumar Jain vs. Archana Kumar and Anr., (2005) 1 SCC 787 ; Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another, (1999) 5 SCC 590 ). However, as we are holding that the impugned orders of the IPAB and High Court are not sustainable in law and have decided these appeals on merits it is not necessary to make any further comments on the aforesaid aspect.
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Chhaparia Industries Private Limited Vs. Overseas Polymers Private Limited | in the material supplied by the respondent and thus this plea as taken by the appellant was purely an afterthought, with an intention to avoid its liability of making payment of the outstanding amount.8. As regards the contention on behalf of the appellant in regard to the provisions of Section 22 of the SICA, learned Counsel for the respondent has made two fold submissions. Firstly, the letter dated 2 January 2015 was tendered across the bar, it was not a part of the pleadings before the learned Single Judge, and secondly the letter was only a covering letter and not a reference within the meaning of Section 22 of the SICA, so as to create any bar before the learned Single Judge to proceed with the hearing of the winding up petition and pass the impugned order. It is her submission that this letter of the appellant cannot be construed to mean that a reference under Section 16(1) of the SICA is registered with the BIFR so as to create a bar under Section 22 of the proceedings of the Company Petition. In support of her submission, learned Counsel for the respondent has relied on the decision of the Supreme Court in the case of "Real Value Appliances Ltd. Vs. Canara Bank & Ors." (1998)5 SCC 554) .9. Having considered the rival submissions and after going through the relevant documents and the impugned order with the assistance of the learned Counsel for the parties, we find that there is no merit in the contention as raised on behalf of the appellant. As regards the contention of the appellant that the material as supplied by the respondent was defective, we find that there is no document to support this contention of the appellant, in respect of the supplies under the invoices in question, except Bill No.1665 corresponding to invoice dated 18 January 2013 of an amount of Rs.2,25,748.19. Even in regard to this invoice the respondent had informed the appellant to rectify the defects but before the same could be done, the appellants client viz. SIEMENS had already utilised the material and thereafter, no grievance whatsoever in that regard was made. However, in respect of the supplies under other invoices, there is nothing on record to show that there was any defect in regard to the supplies under these bills. The correspondence also do not reveal any action on the part of the appellant to dispute the quality of the material and/or any reference not to accept and/or return the material. What we find is that the appellant had in fact issued cheques to the respondent for amount of Rs.6,09,769/- and 7,27,125/- on 15 April 2013 and 22 March 2013. Thus clearly the contention in regard to the defect in the material, is taken by the appellant for the first time in defending the winding up petition filed by the respondent. It is significant that the appellant did not even bother to respond to the statutory notice where this plea if bonafide could have been taken by the appellant. We are, therefore, of the clear opinion that the stand of the appellant regarding defective material supplied by the respondent, was without any basis and rightly rejected by the learned Single Judge.10. As regards the contention of the appellant in regard to the application of Section 22 of the SICA, we find that there is no merit in this submission. This is for the reason that apart from a solitary letter dated 2 January 2015 which was tendered across the bar which was merely a covering letter addressed to the Registrar of BIFR for filing of reference, there was nothing brought on record by the appellant to show that a reference has been registered and the same is pending before the BIFR. The Supreme Court in the case of "Real Value Appliances Ltd." (supra) has held that the inquiry under Section 16(1) of the SICA can be said to have commenced as soon as registration of reference is completed after scrutiny and from that time the provisions of Section 22 of the SICA would stand to operate. A useful reference can be made to the observations of the Supreme Court in paragraphs 23 and 30 of this judgment, wherein the Supreme Court has observed thus:"... ... ... Therefore, in our view, the High Court of Allahabad in Industrial Finance Corporation vs. Maharashtra Steels Ltd. (1990) 67 Comp. Cas 412 (All), the High Court of Andhra Pradesh in Sponge Iron India Ltd. vs. Neelima Steels Ltd. (1990) 68 Comp. Cas 201 (AP), the High Court of Himachal Pradesh in Orissa Sponge Iron Ltd. vs. Rishab Ispat Ltd. (1993) 78 Comp. Cas 264 (HP), are right in rejecting such a contention and in holding that the inquiry must be treated as having commenced as soon as the registration of the reference is completed after scrutiny and that from that time, action against the Companys assets must remain stayed as stated in section 22 till final decisions are taken by the BIFR.30. There can, therefore, be no difficulty in holding that after the amendment to Regulation 19 w.e.f. 24.3.1994, once the reference is registered and when once it is mandatory simultaneously to call for information/documents from the informant and such a direction is given, then inquiry under section 16(1) must for the purposes of section 22 be deemed to have commenced. Section 22 and the prohibitions contained in it shall immediately come into play." (emphasis supplied)11. In the light of the observations of the Supreme Court in the decision in "Real Value Appliances Ltd." (supra), the learned Single Judge has thus appropriately observed that an inquiry under Section 16 of the SICA so as to attract bar under Section 22 of the SICA, is deemed to have commenced upon registration of a reference and only thereafter the provisions of Section 22 of the SICA would apply.12. In these circumstances and for the reasons we have indicated, we do not find any merit in this appeal. | 0[ds]9. Having considered the rival submissions and after going through the relevant documents and the impugned order with the assistance of the learned Counsel for the parties, we find that there is no merit in the contention as raised on behalf of the appellant. As regards the contention of the appellant that the material as supplied by the respondent was defective, we find that there is no document to support this contention of the appellant, in respect of the supplies under the invoices in question, except Bill No.1665 corresponding to invoice dated 18 January 2013 of an amount of Rs.2,25,748.19. Even in regard to this invoice the respondent had informed the appellant to rectify the defects but before the same could be done, the appellants client viz. SIEMENS had already utilised the material and thereafter, no grievance whatsoever in that regard was made. However, in respect of the supplies under other invoices, there is nothing on record to show that there was any defect in regard to the supplies under these bills. The correspondence also do not reveal any action on the part of the appellant to dispute the quality of the material and/or any reference not to accept and/or return the material. What we find is that the appellant had in fact issued cheques to the respondent for amount of Rs.6,09,769/on 15 April 2013 and 22 March 2013. Thus clearly the contention in regard to the defect in the material, is taken by the appellant for the first time in defending the winding up petition filed by the respondent. It is significant that the appellant did not even bother to respond to the statutory notice where this plea if bonafide could have been taken by the appellant. We are, therefore, of the clear opinion that the stand of the appellant regarding defective material supplied by the respondent, was without any basis and rightly rejected by the learned Single Judge.10. As regards the contention of the appellant in regard to the application of Section 22 of the SICA, we find that there is no merit in this submission.There can, therefore, be no difficulty in holding that after the amendment to Regulation 19 w.e.f. 24.3.1994, once the reference is registered and when once it is mandatory simultaneously to call for information/documents from the informant and such a direction is given, then inquiry under section 16(1) must for the purposes of section 22 be deemed to have commenced. Section 22 and the prohibitions contained in it shall immediately come into play." (emphasis supplied)11. In the light of the observations of the Supreme Court in the decision in "Real Value Appliances Ltd." (supra), the learned Single Judge has thus appropriately observed that an inquiry under Section 16 of the SICA so as to attract bar under Section 22 of the SICA, is deemed to have commenced upon registration of a reference and only thereafter the provisions of Section 22 of the SICA would apply.12. In these circumstances and for the reasons we have indicated, we do not find any merit in this appeal. | 0 | 2,325 | 562 | ### 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:
in the material supplied by the respondent and thus this plea as taken by the appellant was purely an afterthought, with an intention to avoid its liability of making payment of the outstanding amount.8. As regards the contention on behalf of the appellant in regard to the provisions of Section 22 of the SICA, learned Counsel for the respondent has made two fold submissions. Firstly, the letter dated 2 January 2015 was tendered across the bar, it was not a part of the pleadings before the learned Single Judge, and secondly the letter was only a covering letter and not a reference within the meaning of Section 22 of the SICA, so as to create any bar before the learned Single Judge to proceed with the hearing of the winding up petition and pass the impugned order. It is her submission that this letter of the appellant cannot be construed to mean that a reference under Section 16(1) of the SICA is registered with the BIFR so as to create a bar under Section 22 of the proceedings of the Company Petition. In support of her submission, learned Counsel for the respondent has relied on the decision of the Supreme Court in the case of "Real Value Appliances Ltd. Vs. Canara Bank & Ors." (1998)5 SCC 554) .9. Having considered the rival submissions and after going through the relevant documents and the impugned order with the assistance of the learned Counsel for the parties, we find that there is no merit in the contention as raised on behalf of the appellant. As regards the contention of the appellant that the material as supplied by the respondent was defective, we find that there is no document to support this contention of the appellant, in respect of the supplies under the invoices in question, except Bill No.1665 corresponding to invoice dated 18 January 2013 of an amount of Rs.2,25,748.19. Even in regard to this invoice the respondent had informed the appellant to rectify the defects but before the same could be done, the appellants client viz. SIEMENS had already utilised the material and thereafter, no grievance whatsoever in that regard was made. However, in respect of the supplies under other invoices, there is nothing on record to show that there was any defect in regard to the supplies under these bills. The correspondence also do not reveal any action on the part of the appellant to dispute the quality of the material and/or any reference not to accept and/or return the material. What we find is that the appellant had in fact issued cheques to the respondent for amount of Rs.6,09,769/- and 7,27,125/- on 15 April 2013 and 22 March 2013. Thus clearly the contention in regard to the defect in the material, is taken by the appellant for the first time in defending the winding up petition filed by the respondent. It is significant that the appellant did not even bother to respond to the statutory notice where this plea if bonafide could have been taken by the appellant. We are, therefore, of the clear opinion that the stand of the appellant regarding defective material supplied by the respondent, was without any basis and rightly rejected by the learned Single Judge.10. As regards the contention of the appellant in regard to the application of Section 22 of the SICA, we find that there is no merit in this submission. This is for the reason that apart from a solitary letter dated 2 January 2015 which was tendered across the bar which was merely a covering letter addressed to the Registrar of BIFR for filing of reference, there was nothing brought on record by the appellant to show that a reference has been registered and the same is pending before the BIFR. The Supreme Court in the case of "Real Value Appliances Ltd." (supra) has held that the inquiry under Section 16(1) of the SICA can be said to have commenced as soon as registration of reference is completed after scrutiny and from that time the provisions of Section 22 of the SICA would stand to operate. A useful reference can be made to the observations of the Supreme Court in paragraphs 23 and 30 of this judgment, wherein the Supreme Court has observed thus:"... ... ... Therefore, in our view, the High Court of Allahabad in Industrial Finance Corporation vs. Maharashtra Steels Ltd. (1990) 67 Comp. Cas 412 (All), the High Court of Andhra Pradesh in Sponge Iron India Ltd. vs. Neelima Steels Ltd. (1990) 68 Comp. Cas 201 (AP), the High Court of Himachal Pradesh in Orissa Sponge Iron Ltd. vs. Rishab Ispat Ltd. (1993) 78 Comp. Cas 264 (HP), are right in rejecting such a contention and in holding that the inquiry must be treated as having commenced as soon as the registration of the reference is completed after scrutiny and that from that time, action against the Companys assets must remain stayed as stated in section 22 till final decisions are taken by the BIFR.30. There can, therefore, be no difficulty in holding that after the amendment to Regulation 19 w.e.f. 24.3.1994, once the reference is registered and when once it is mandatory simultaneously to call for information/documents from the informant and such a direction is given, then inquiry under section 16(1) must for the purposes of section 22 be deemed to have commenced. Section 22 and the prohibitions contained in it shall immediately come into play." (emphasis supplied)11. In the light of the observations of the Supreme Court in the decision in "Real Value Appliances Ltd." (supra), the learned Single Judge has thus appropriately observed that an inquiry under Section 16 of the SICA so as to attract bar under Section 22 of the SICA, is deemed to have commenced upon registration of a reference and only thereafter the provisions of Section 22 of the SICA would apply.12. In these circumstances and for the reasons we have indicated, we do not find any merit in this appeal.
### Response:
0
### Explanation:
9. Having considered the rival submissions and after going through the relevant documents and the impugned order with the assistance of the learned Counsel for the parties, we find that there is no merit in the contention as raised on behalf of the appellant. As regards the contention of the appellant that the material as supplied by the respondent was defective, we find that there is no document to support this contention of the appellant, in respect of the supplies under the invoices in question, except Bill No.1665 corresponding to invoice dated 18 January 2013 of an amount of Rs.2,25,748.19. Even in regard to this invoice the respondent had informed the appellant to rectify the defects but before the same could be done, the appellants client viz. SIEMENS had already utilised the material and thereafter, no grievance whatsoever in that regard was made. However, in respect of the supplies under other invoices, there is nothing on record to show that there was any defect in regard to the supplies under these bills. The correspondence also do not reveal any action on the part of the appellant to dispute the quality of the material and/or any reference not to accept and/or return the material. What we find is that the appellant had in fact issued cheques to the respondent for amount of Rs.6,09,769/on 15 April 2013 and 22 March 2013. Thus clearly the contention in regard to the defect in the material, is taken by the appellant for the first time in defending the winding up petition filed by the respondent. It is significant that the appellant did not even bother to respond to the statutory notice where this plea if bonafide could have been taken by the appellant. We are, therefore, of the clear opinion that the stand of the appellant regarding defective material supplied by the respondent, was without any basis and rightly rejected by the learned Single Judge.10. As regards the contention of the appellant in regard to the application of Section 22 of the SICA, we find that there is no merit in this submission.There can, therefore, be no difficulty in holding that after the amendment to Regulation 19 w.e.f. 24.3.1994, once the reference is registered and when once it is mandatory simultaneously to call for information/documents from the informant and such a direction is given, then inquiry under section 16(1) must for the purposes of section 22 be deemed to have commenced. Section 22 and the prohibitions contained in it shall immediately come into play." (emphasis supplied)11. In the light of the observations of the Supreme Court in the decision in "Real Value Appliances Ltd." (supra), the learned Single Judge has thus appropriately observed that an inquiry under Section 16 of the SICA so as to attract bar under Section 22 of the SICA, is deemed to have commenced upon registration of a reference and only thereafter the provisions of Section 22 of the SICA would apply.12. In these circumstances and for the reasons we have indicated, we do not find any merit in this appeal.
|
DIRECTOR TRANSPORT DEPARTMENT UNION TERRITORY ADMINISTRATION OF DADRA AND NAGAR HAVELI SILVASSA Vs. MR. ABHINAV DIPAKBHAI PATEL | Inspector and the candidates were informed about the weightage to be given to the locals. 8. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Others (1990) 3 SCC 130 the Petitioner belonged to ‘Gouda? community in the State of Andhra Pradesh which was recognized as a Scheduled Tribe in the Presidential Order issued for the said State. He applied for admission in a medical college in the State of Maharashtra and claimed the benefit of reservation. ‘Gouda? community was not recognized as a Scheduled Tribe in the Presidential Order issued for the State of Maharashtra, and on that ground he was denied the benefit of reservation. It was held by this Court that he had no legal right to claim benefit of reservation in the State of Maharashtra as his community was not included as a Scheduled Tribe in the Presidential Order issued for the State of Maharashtra. 9. Appointments of Selection Grade T eachers made by the Directorate of Education, Government of Pondicherry was the subject matter of a judgment of this Court in S. Pushpa (supra). An advertisement was issued for recruitment of 350 General Central Service Group ‘C? posts of Selection Grade T eachers out of which 56 posts were reserved for Scheduled Caste candidates. As sufficient number of Scheduled Castes candidates were not available in the Yanam and Mahe regions of the Union T erritory of Pondicherry, candidates registered in the neighbouring employment exchanges in the States of T amil Nadu, Andhra Pradesh and Kerala were also sponsored. The question that arose for consideration therein was whether a migrant Scheduled Caste candidate belonging to another State was eligible for appointment to the post which is reserved for a Scheduled Caste candidate in the Union T erritory of Pondicherry. The Central Administrative Tribunal was of the opinion that migrant Scheduled Caste candidates were not entitled to claim the benefit of reservation in the matter of employment in the Pondicherry Government Service. This Court reversed the judgment of the Central Administrative Tribunal by observing that there is no violation of any provision of the Constitution of India in making the selection and appointment of migrant Scheduled Caste candidates against the quota reserved for Scheduled Castes in the Union T erritory of Pondicherry. 10. Government Orders issued by the Pondicherry Government extending the benefit of reservation for admissions in colleges was extended only to the members of the Scheduled Castes who were originally from the Union T erritory. While referring to the notification issued under Articles 341(1) and 342(1) of the Constitution of India, this Court in Puducherry Scheduled Caste People Welfare Association (supra) decided that no amendment, modification, alteration or variation of the Presidential Order is permissible by an executive power. Altering the word ?Resident? in the Presidential Order to ?Origin? by an executive order amounted to altering the Presidential Order, was held to be impermissible by this Court in the said judgment. 11. In view of the difference of opinion relating to the extension of benefits or concessions allowed to Scheduled Caste candidates belonging to a particular State in another State, the matter was referred to a Constitution Bench. In Bir Singh?s case (supra), this Court was of the opinion that the correctness of the view expressed in the case of S. Pushpa (supra) did not require reconsideration. The Constitution Bench also reiterated that the Presidential Notification issued under Articles 341 and 342 cannot be altered or modified by the Executive. The upshot of the above discussion is that a person belonging to a Scheduled Caste or a Scheduled Tribe which is notified by the President for a Union T erritory is entitled to be considered as a reserved candidate provided he is a resident of the said Union T erritory. 12. There is no dispute that the Respondent was a resident in the Union T erritory of Dadra and Nagar Haveli for six years prior to the date of advertisement. He stated in the Writ Petition that he owns an apartment in which he was residing and he married a woman from ?Dhodia? tribe in the Union T erritory. He further stated that his name is in the Voter?s List in the Union T erritory. These facts have not been disputed by the Appellants. The central issue raised by the Appellants before the High Court was that a person should be a local in the Union T erritory which meant that migrant Scheduled Tribes cannot be given the benefit of reservation. The Presidential Notification issued for the Union T erritory of Dadra and Nagar Haveli extends the benefit of reservation to the Scheduled Tribes mentioned therein on the basis of residence and not on the basis of origin. We find no force in the point canvassed by the learned counsel for the Appellants that the reservation for Scheduled Tribes in the Union T erritory of Dadra and Nagar Haveli is not available to migrant Scheduled Tribes. A feeble attempt was made by the learned counsel for the Appellant that the requirement of residence is for a period of 10 years for a person to claim the benefit of reservation. There is no material which was placed on record in the High Court in support of the said submission and there was no such averment in the counter affidavit filed in the Writ Petition. This point was not raised before the High Court and no such ground is taken in the Special Leave Petition for which reason the said contention does not merit any consideration. Other points canvassed by the learned Senior Counsel for the Respondent need not be adverted to in view of the order we propose to pass. Gross injustice is caused to the Respondent by the action of the Appellants in not appointing him in spite of the advice of the Union of India and the direction issued by the National Commission for Scheduled Tribes. The appointment of Respondent as Assistant Motor Vehicle Inspector does not brook any further delay. | 0[ds]The upshot of the above discussion is that a person belonging to a Scheduled Caste or a Scheduled Tribe which is notified by the President for a Union T erritory is entitled to be considered as a reserved candidate provided he is a resident of the said Union T erritory.There is no dispute that the Respondent was a resident in the Union T erritory of Dadra and Nagar Haveli for six years prior to the date of advertisement. He stated in the Writ Petition that he owns an apartment in which he was residing and he married a woman from ?Dhodia? tribe in the Union T erritory. He further stated that his name is in the Voter?s List in the Union T erritory. These facts have not been disputed by the Appellants. The central issue raised by the Appellants before the High Court was that a person should be a local in the Union T erritory which meant that migrant Scheduled Tribes cannot be given the benefit of reservation. The Presidential Notification issued for the Union T erritory of Dadra and Nagar Haveli extends the benefit of reservation to the Scheduled Tribes mentioned therein on the basis of residence and not on the basis of origin. We find no force in the point canvassed by the learned counsel for the Appellants that the reservation for Scheduled Tribes in the Union T erritory of Dadra and Nagar Haveli is not available to migrant Scheduled Tribes. A feeble attempt was made by the learned counsel for the Appellant that the requirement of residence is for a period of 10 years for a person to claim the benefit of reservation. There is no material which was placed on record in the High Court in support of the said submission and there was no such averment in the counter affidavit filed in the Writ Petition. This point was not raised before the High Court and no such ground is taken in the Special Leave Petition for which reason the said contention does not merit any consideration. Other points canvassed by the learned Senior Counsel for the Respondent need not be adverted to in view of the order we propose to pass. Gross injustice is caused to the Respondent by the action of the Appellants in not appointing him in spite of the advice of the Union of India and the direction issued by the National Commission for Scheduled Tribes. The appointment of Respondent as Assistant Motor Vehicle Inspector does not brook any further delay. | 0 | 2,874 | 442 | ### 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:
Inspector and the candidates were informed about the weightage to be given to the locals. 8. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Others (1990) 3 SCC 130 the Petitioner belonged to ‘Gouda? community in the State of Andhra Pradesh which was recognized as a Scheduled Tribe in the Presidential Order issued for the said State. He applied for admission in a medical college in the State of Maharashtra and claimed the benefit of reservation. ‘Gouda? community was not recognized as a Scheduled Tribe in the Presidential Order issued for the State of Maharashtra, and on that ground he was denied the benefit of reservation. It was held by this Court that he had no legal right to claim benefit of reservation in the State of Maharashtra as his community was not included as a Scheduled Tribe in the Presidential Order issued for the State of Maharashtra. 9. Appointments of Selection Grade T eachers made by the Directorate of Education, Government of Pondicherry was the subject matter of a judgment of this Court in S. Pushpa (supra). An advertisement was issued for recruitment of 350 General Central Service Group ‘C? posts of Selection Grade T eachers out of which 56 posts were reserved for Scheduled Caste candidates. As sufficient number of Scheduled Castes candidates were not available in the Yanam and Mahe regions of the Union T erritory of Pondicherry, candidates registered in the neighbouring employment exchanges in the States of T amil Nadu, Andhra Pradesh and Kerala were also sponsored. The question that arose for consideration therein was whether a migrant Scheduled Caste candidate belonging to another State was eligible for appointment to the post which is reserved for a Scheduled Caste candidate in the Union T erritory of Pondicherry. The Central Administrative Tribunal was of the opinion that migrant Scheduled Caste candidates were not entitled to claim the benefit of reservation in the matter of employment in the Pondicherry Government Service. This Court reversed the judgment of the Central Administrative Tribunal by observing that there is no violation of any provision of the Constitution of India in making the selection and appointment of migrant Scheduled Caste candidates against the quota reserved for Scheduled Castes in the Union T erritory of Pondicherry. 10. Government Orders issued by the Pondicherry Government extending the benefit of reservation for admissions in colleges was extended only to the members of the Scheduled Castes who were originally from the Union T erritory. While referring to the notification issued under Articles 341(1) and 342(1) of the Constitution of India, this Court in Puducherry Scheduled Caste People Welfare Association (supra) decided that no amendment, modification, alteration or variation of the Presidential Order is permissible by an executive power. Altering the word ?Resident? in the Presidential Order to ?Origin? by an executive order amounted to altering the Presidential Order, was held to be impermissible by this Court in the said judgment. 11. In view of the difference of opinion relating to the extension of benefits or concessions allowed to Scheduled Caste candidates belonging to a particular State in another State, the matter was referred to a Constitution Bench. In Bir Singh?s case (supra), this Court was of the opinion that the correctness of the view expressed in the case of S. Pushpa (supra) did not require reconsideration. The Constitution Bench also reiterated that the Presidential Notification issued under Articles 341 and 342 cannot be altered or modified by the Executive. The upshot of the above discussion is that a person belonging to a Scheduled Caste or a Scheduled Tribe which is notified by the President for a Union T erritory is entitled to be considered as a reserved candidate provided he is a resident of the said Union T erritory. 12. There is no dispute that the Respondent was a resident in the Union T erritory of Dadra and Nagar Haveli for six years prior to the date of advertisement. He stated in the Writ Petition that he owns an apartment in which he was residing and he married a woman from ?Dhodia? tribe in the Union T erritory. He further stated that his name is in the Voter?s List in the Union T erritory. These facts have not been disputed by the Appellants. The central issue raised by the Appellants before the High Court was that a person should be a local in the Union T erritory which meant that migrant Scheduled Tribes cannot be given the benefit of reservation. The Presidential Notification issued for the Union T erritory of Dadra and Nagar Haveli extends the benefit of reservation to the Scheduled Tribes mentioned therein on the basis of residence and not on the basis of origin. We find no force in the point canvassed by the learned counsel for the Appellants that the reservation for Scheduled Tribes in the Union T erritory of Dadra and Nagar Haveli is not available to migrant Scheduled Tribes. A feeble attempt was made by the learned counsel for the Appellant that the requirement of residence is for a period of 10 years for a person to claim the benefit of reservation. There is no material which was placed on record in the High Court in support of the said submission and there was no such averment in the counter affidavit filed in the Writ Petition. This point was not raised before the High Court and no such ground is taken in the Special Leave Petition for which reason the said contention does not merit any consideration. Other points canvassed by the learned Senior Counsel for the Respondent need not be adverted to in view of the order we propose to pass. Gross injustice is caused to the Respondent by the action of the Appellants in not appointing him in spite of the advice of the Union of India and the direction issued by the National Commission for Scheduled Tribes. The appointment of Respondent as Assistant Motor Vehicle Inspector does not brook any further delay.
### Response:
0
### Explanation:
The upshot of the above discussion is that a person belonging to a Scheduled Caste or a Scheduled Tribe which is notified by the President for a Union T erritory is entitled to be considered as a reserved candidate provided he is a resident of the said Union T erritory.There is no dispute that the Respondent was a resident in the Union T erritory of Dadra and Nagar Haveli for six years prior to the date of advertisement. He stated in the Writ Petition that he owns an apartment in which he was residing and he married a woman from ?Dhodia? tribe in the Union T erritory. He further stated that his name is in the Voter?s List in the Union T erritory. These facts have not been disputed by the Appellants. The central issue raised by the Appellants before the High Court was that a person should be a local in the Union T erritory which meant that migrant Scheduled Tribes cannot be given the benefit of reservation. The Presidential Notification issued for the Union T erritory of Dadra and Nagar Haveli extends the benefit of reservation to the Scheduled Tribes mentioned therein on the basis of residence and not on the basis of origin. We find no force in the point canvassed by the learned counsel for the Appellants that the reservation for Scheduled Tribes in the Union T erritory of Dadra and Nagar Haveli is not available to migrant Scheduled Tribes. A feeble attempt was made by the learned counsel for the Appellant that the requirement of residence is for a period of 10 years for a person to claim the benefit of reservation. There is no material which was placed on record in the High Court in support of the said submission and there was no such averment in the counter affidavit filed in the Writ Petition. This point was not raised before the High Court and no such ground is taken in the Special Leave Petition for which reason the said contention does not merit any consideration. Other points canvassed by the learned Senior Counsel for the Respondent need not be adverted to in view of the order we propose to pass. Gross injustice is caused to the Respondent by the action of the Appellants in not appointing him in spite of the advice of the Union of India and the direction issued by the National Commission for Scheduled Tribes. The appointment of Respondent as Assistant Motor Vehicle Inspector does not brook any further delay.
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Bhiwani Textile Mills Vs. Their Workmen and Others | do duty on any Sunday, will be entitled to an extra payment of 20 per cent of their consolidated wages for that Sunday. This direction was made by the tribunal on its view that the workmen who had never previously been called to work on Sundays and were not likely to be deprived of some amenities of social gatherings and union meetings, etc., did deserve some compensation. The tribunal also took into account the fact that, at the time when the management started making efforts to work the mills on Sundays, there was a meeting between the representatives of workmen and the general manager, and the general manager was then willing to allow some compensation to the workmen who are called upon to work on Sundays, though the proposal did not finally mature. It appears to us that, in giving this decision, the tribunal did not follow the principles that should have been applied when deciding such a dispute. Payment of extra amount for work on Sundays affects wages payable to the workmen, and the question of wages, as has been laid down by this Court in a number of cases, must always be decided on the basis of the capacity of the industry to pay and on practice prevailing in the industry in the region. The tribunal has completely ignored both these factors. The mills, in fact, gave evidence to show that, in almost all other similar mills in the region, the practice prevails of working on Sundays, of asking the workmen to do duty for that purpose and of making no additional payment for doing that work. Our attention was drawn to a mill statement compiled and published by the Millowners Association, Bombay, containing names and addresses of all cotton spinning and weaving mills in India, It shows that there were six mills in Punjab., including the appellant-mills. Witnesses were examined on behalf of the mills to show that, in at least four of the mills work is carried on on Sundays and no extra payment is made to the workmen called on duty on those days. These four mills are : Hissar Textile Mills, Jagatjit Cotton Textile Mills, Ltd., Sri Bhawani Cotton Mills, Ltd., Abohar, and Technological Institute of Textiles. Another organization about which evidence has been produced, is East Indian Cotton Manufacturing Company, Faridabad, which does not appear to be included in the statement issued by the millowners association. On behalf of the workmen, the case of these mills was sought to be distinguished on the ground that, in the appellant-mills, Sunday was not a working day form the inception, while, in the other mills sought to be compared, the position was the reverse as the mills had been working on Sundays from the very beginning. It was urged that the two cases were not comparable, because it was only in the case of the appellant-mills that Sunday as an offday had become a condition of service of the workmen. The argument was, however, found to be based on incorrect premises. The evidence given on behalf of the appellant-mills shows that, at least in three cases, viz., Technological Institute of Textiles, Bhiwani, Jagatjit Cotton Textile Mills, Ltd., Phagwara, and Sri Bhawani Cotton Mills Ltd., Abohar, Sunday was not a working day when these mills were started and was made a working day only subsequently. In any case, we do not think that the fact that Sunday was not made a working day from the inception is very material. It is clear from the evidence given on behalf of the appellant-mills, which the tribunal has completely ignored, that, in the cotton textile industry in Punjab, the practice prevails of working on Sundays without giving any extra allowance to the workmen who are asked to do duty on those days. There appears to be no reason at all why the appellant-mills should be picked out for a different treatment and asked to make extra payment to the workmen when it is only falling into line with most other mills. It may be added that evidence was also led to show that in the neighbouring region of Delhi the same practice prevails in the industry of working on Sundays without making any extra payment to the workmen. It is also significant that no attempt has been made by the tribunal to go into the question whether the mill has the capacity to bear the extra burden that will fall upon it as a result of this additional payment of 20 per cent of the consolidated wages to the large number of workmen who will be working on 52 Sundays in a year.In this connexion, it was suggested on behalf of the workmen that there is no evidence to show that the wage-scales and other amenities provided by the appellant-mills are similar to those provided by other mills in the region. We do not think that there was any burden on the appellant-mills to prove such a fact, particularly in view of the circumstance that the minimum wages had been fixed for all the mills under the Minimum Wages Act and are, therefore, common to all. This fixation was made by the Government under the Defense of India Rules. 5. The consideration that weighed with the tribunal that the workmen deserved compensation for being deprived of amenities of social gatherings and union meetings on Sundays cannot provide any justification for granting extra payment. Social gatherings need not taken place during working hours. Union meetings are very frequent. The workmen in the other mills in this very region have been carrying on work on Sundays without receiving any additional payment. We cannot see how additional payment of money can compensate a workman for whatever little deprivation there may be in the matter of social gatherings. The factors which the tribunal took into account in order to award this extra payment to the workmen were of much less importance than considerations which the tribunal ignored and which we have discussed above. 6. | 1[ds]It appears to us that the only effect, if any, at all, of this part of the award by the tribunal can be that the workmen may claim that they are entitled to raise the demand afresh without terminating the award in accordance with S.19(6) of the Industrial Disputes Act; otherwise, there does not appear to be any effect on the rights of the parties of this direction made by the tribunalSri G. B. Pai, on behalf of the mills, and Sri M. S. K. Sastri and Y. Kumar for the two unions representing the workmen, stated before us that the parties are agreed that this direction given in the award may be deleted as no party objects to its deletion. Consequently, we need not go into the question whether the tribunal was in law competent to make such a direction in the award or not. We set aside this direction by consent of partiesThis direction was made by the tribunal on its view that the workmen who had never previously been called to work on Sundays and were not likely to be deprived of some amenities of social gatherings and union meetings, etc., did deserve some compensation. The tribunal also took into account the fact that, at the time when the management started making efforts to work the mills on Sundays, there was a meeting between the representatives of workmen and the general manager, and the general manager was then willing to allow some compensation to the workmen who are called upon to work on Sundays, though the proposal did not finally mature. It appears to us that, in giving this decision, the tribunal did not follow the principles that should have been applied when deciding such a dispute. Payment of extra amount for work on Sundays affects wages payable to the workmen, and the question of wages, as has been laid down by this Court in a number of cases, must always be decided on the basis of the capacity of the industry to pay and on practice prevailing in the industry in the region. The tribunal has completely ignored both these factorsThe argument was, however, found to be based on incorrect premises. The evidence given on behalf of the appellant-mills shows that, at least in three cases, viz., Technological Institute of Textiles, Bhiwani, Jagatjit Cotton Textile Mills, Ltd., Phagwara, and Sri Bhawani Cotton Mills Ltd., Abohar, Sunday was not a working day when these mills were started and was made a working day only subsequently. In any case, we do not think that the fact that Sunday was not made a working day from the inception is very material. It is clear from the evidence given on behalf of the appellant-mills, which the tribunal has completely ignored, that, in the cotton textile industry in Punjab, the practice prevails of working on Sundays without giving any extra allowance to the workmen who are asked to do duty on those days. There appears to be no reason at all why the appellant-mills should be picked out for a different treatment and asked to make extra payment to the workmen when it is only falling into line with most other mills. It may be added that evidence was also led to show that in the neighbouring region of Delhi the same practice prevails in the industry of working on Sundays without making any extra payment to the workmen. It is also significant that no attempt has been made by the tribunal to go into the question whether the mill has the capacity to bear the extra burden that will fall upon it as a result of this additional payment of 20 per cent of the consolidated wages to the large number of workmen who will be working on 52 Sundays in a yearThe consideration that weighed with the tribunal that the workmen deserved compensation for being deprived of amenities of social gatherings and union meetings on Sundays cannot provide any justification for granting extra payment. Social gatherings need not taken place during working hours. Union meetings are very frequent. The workmen in the other mills in this very region have been carrying on work on Sundays without receiving any additional payment. We cannot see how additional payment of money can compensate a workman for whatever little deprivation there may be in the matter of social gatherings. The factors which the tribunal took into account in order to award this extra payment to the workmen were of much less importance than considerations which the tribunal ignored and which we have discussed above. | 1 | 2,107 | 825 | ### 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:
do duty on any Sunday, will be entitled to an extra payment of 20 per cent of their consolidated wages for that Sunday. This direction was made by the tribunal on its view that the workmen who had never previously been called to work on Sundays and were not likely to be deprived of some amenities of social gatherings and union meetings, etc., did deserve some compensation. The tribunal also took into account the fact that, at the time when the management started making efforts to work the mills on Sundays, there was a meeting between the representatives of workmen and the general manager, and the general manager was then willing to allow some compensation to the workmen who are called upon to work on Sundays, though the proposal did not finally mature. It appears to us that, in giving this decision, the tribunal did not follow the principles that should have been applied when deciding such a dispute. Payment of extra amount for work on Sundays affects wages payable to the workmen, and the question of wages, as has been laid down by this Court in a number of cases, must always be decided on the basis of the capacity of the industry to pay and on practice prevailing in the industry in the region. The tribunal has completely ignored both these factors. The mills, in fact, gave evidence to show that, in almost all other similar mills in the region, the practice prevails of working on Sundays, of asking the workmen to do duty for that purpose and of making no additional payment for doing that work. Our attention was drawn to a mill statement compiled and published by the Millowners Association, Bombay, containing names and addresses of all cotton spinning and weaving mills in India, It shows that there were six mills in Punjab., including the appellant-mills. Witnesses were examined on behalf of the mills to show that, in at least four of the mills work is carried on on Sundays and no extra payment is made to the workmen called on duty on those days. These four mills are : Hissar Textile Mills, Jagatjit Cotton Textile Mills, Ltd., Sri Bhawani Cotton Mills, Ltd., Abohar, and Technological Institute of Textiles. Another organization about which evidence has been produced, is East Indian Cotton Manufacturing Company, Faridabad, which does not appear to be included in the statement issued by the millowners association. On behalf of the workmen, the case of these mills was sought to be distinguished on the ground that, in the appellant-mills, Sunday was not a working day form the inception, while, in the other mills sought to be compared, the position was the reverse as the mills had been working on Sundays from the very beginning. It was urged that the two cases were not comparable, because it was only in the case of the appellant-mills that Sunday as an offday had become a condition of service of the workmen. The argument was, however, found to be based on incorrect premises. The evidence given on behalf of the appellant-mills shows that, at least in three cases, viz., Technological Institute of Textiles, Bhiwani, Jagatjit Cotton Textile Mills, Ltd., Phagwara, and Sri Bhawani Cotton Mills Ltd., Abohar, Sunday was not a working day when these mills were started and was made a working day only subsequently. In any case, we do not think that the fact that Sunday was not made a working day from the inception is very material. It is clear from the evidence given on behalf of the appellant-mills, which the tribunal has completely ignored, that, in the cotton textile industry in Punjab, the practice prevails of working on Sundays without giving any extra allowance to the workmen who are asked to do duty on those days. There appears to be no reason at all why the appellant-mills should be picked out for a different treatment and asked to make extra payment to the workmen when it is only falling into line with most other mills. It may be added that evidence was also led to show that in the neighbouring region of Delhi the same practice prevails in the industry of working on Sundays without making any extra payment to the workmen. It is also significant that no attempt has been made by the tribunal to go into the question whether the mill has the capacity to bear the extra burden that will fall upon it as a result of this additional payment of 20 per cent of the consolidated wages to the large number of workmen who will be working on 52 Sundays in a year.In this connexion, it was suggested on behalf of the workmen that there is no evidence to show that the wage-scales and other amenities provided by the appellant-mills are similar to those provided by other mills in the region. We do not think that there was any burden on the appellant-mills to prove such a fact, particularly in view of the circumstance that the minimum wages had been fixed for all the mills under the Minimum Wages Act and are, therefore, common to all. This fixation was made by the Government under the Defense of India Rules. 5. The consideration that weighed with the tribunal that the workmen deserved compensation for being deprived of amenities of social gatherings and union meetings on Sundays cannot provide any justification for granting extra payment. Social gatherings need not taken place during working hours. Union meetings are very frequent. The workmen in the other mills in this very region have been carrying on work on Sundays without receiving any additional payment. We cannot see how additional payment of money can compensate a workman for whatever little deprivation there may be in the matter of social gatherings. The factors which the tribunal took into account in order to award this extra payment to the workmen were of much less importance than considerations which the tribunal ignored and which we have discussed above. 6.
### Response:
1
### Explanation:
It appears to us that the only effect, if any, at all, of this part of the award by the tribunal can be that the workmen may claim that they are entitled to raise the demand afresh without terminating the award in accordance with S.19(6) of the Industrial Disputes Act; otherwise, there does not appear to be any effect on the rights of the parties of this direction made by the tribunalSri G. B. Pai, on behalf of the mills, and Sri M. S. K. Sastri and Y. Kumar for the two unions representing the workmen, stated before us that the parties are agreed that this direction given in the award may be deleted as no party objects to its deletion. Consequently, we need not go into the question whether the tribunal was in law competent to make such a direction in the award or not. We set aside this direction by consent of partiesThis direction was made by the tribunal on its view that the workmen who had never previously been called to work on Sundays and were not likely to be deprived of some amenities of social gatherings and union meetings, etc., did deserve some compensation. The tribunal also took into account the fact that, at the time when the management started making efforts to work the mills on Sundays, there was a meeting between the representatives of workmen and the general manager, and the general manager was then willing to allow some compensation to the workmen who are called upon to work on Sundays, though the proposal did not finally mature. It appears to us that, in giving this decision, the tribunal did not follow the principles that should have been applied when deciding such a dispute. Payment of extra amount for work on Sundays affects wages payable to the workmen, and the question of wages, as has been laid down by this Court in a number of cases, must always be decided on the basis of the capacity of the industry to pay and on practice prevailing in the industry in the region. The tribunal has completely ignored both these factorsThe argument was, however, found to be based on incorrect premises. The evidence given on behalf of the appellant-mills shows that, at least in three cases, viz., Technological Institute of Textiles, Bhiwani, Jagatjit Cotton Textile Mills, Ltd., Phagwara, and Sri Bhawani Cotton Mills Ltd., Abohar, Sunday was not a working day when these mills were started and was made a working day only subsequently. In any case, we do not think that the fact that Sunday was not made a working day from the inception is very material. It is clear from the evidence given on behalf of the appellant-mills, which the tribunal has completely ignored, that, in the cotton textile industry in Punjab, the practice prevails of working on Sundays without giving any extra allowance to the workmen who are asked to do duty on those days. There appears to be no reason at all why the appellant-mills should be picked out for a different treatment and asked to make extra payment to the workmen when it is only falling into line with most other mills. It may be added that evidence was also led to show that in the neighbouring region of Delhi the same practice prevails in the industry of working on Sundays without making any extra payment to the workmen. It is also significant that no attempt has been made by the tribunal to go into the question whether the mill has the capacity to bear the extra burden that will fall upon it as a result of this additional payment of 20 per cent of the consolidated wages to the large number of workmen who will be working on 52 Sundays in a yearThe consideration that weighed with the tribunal that the workmen deserved compensation for being deprived of amenities of social gatherings and union meetings on Sundays cannot provide any justification for granting extra payment. Social gatherings need not taken place during working hours. Union meetings are very frequent. The workmen in the other mills in this very region have been carrying on work on Sundays without receiving any additional payment. We cannot see how additional payment of money can compensate a workman for whatever little deprivation there may be in the matter of social gatherings. The factors which the tribunal took into account in order to award this extra payment to the workmen were of much less importance than considerations which the tribunal ignored and which we have discussed above.
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DODDAMUNIYAPPA (DEAD) THROUGH LRS Vs. MUNISWAMY | trial Court. On an appeal being preferred by respondent nos. 7 to 9(defendants nos. 2 to 4), the First Appellate Court allowed the appeal vide judgment and decree dated 27 th August, 1969. The second appeal being R.S.A. No. 69 of 1970 preferred by the present appellant (defendant no. 1) before the High Court came to be dismissed, thus, the decree became final. Respondent nos. 7 to 9(defendants nos. 2 to 4) put the decree to execution and a deed of reconveyance was executed and possession of the subject property was restored to respondent nos. 7 to 9(defendants nos. 2 to 4) on 7 th March, 1974 and on execution of a decree, it assumed the character of a joint family property in the hands of respondent nos. 7 to 9(defendants nos. 2 to 4).21. It is at the stage of Execution Appeal No. 2 of 1974 preferred at the instance of the appellant (defendant no. 1), the compromise was executed between the parties on 25 th March, 1976 and part of the possession of the subject property was restored to the appellant(defendant no. 1).22. After the restoration of possession of the subject property on 7 th March, 1974, the title of the property reassumed its original character of joint family property in the hands of respondent nos. 7 to 9 (defendants nos. 2 to 4) and has created the right of inheritance of respondent nos. 1 to 6 in the joint family property and indisputedly, they were neither consulted nor made parties to the said compromise.23. It is well settled and held by this Court in Smt. Dipo Vs. Wassan Singh and Others (supra) that the property inherited from the father by his sons becomes joint family property in the hands of the sons. The relevant portion is as under:-"2. ………..Property inherited from paternal ancestors is, of course, ?ancestral property? as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations. In Mullas Principles of Hindu Law (15th Edn.), it is stated at p. 289:?. . . if A inherits property, whether movable or immovable, from his father or fathers father, or fathers fathers father, it is ancestral property as regards his male issue. If A has no son, sons son, or sons sons son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases. . . .* * *A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons sons and sons sons sons, but as regards other relations he holds it, and is entitled to hold it, as his absolute property.?Again at p. 291, it is stated:?The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession.?24. Indisputedly, respondent nos. 1 to 6 (original plaintiffs) were not parties to the compromise dated 25 th March, 1976 and the subject property at that time was joint family property and the compromise entered into between the parties would not bind the rights of respondent nos. 1 to 6(grandsons of propositus Chikkanna).25. It is an admitted fact on record that the property was purchased by Chikkanna from his sister Thayamma and respondent nos. 7 to 9(defendants nos. 2 to 4) have inherited the property after death of propositus Chikkanna. Respondent nos. 1 to 6 are children of respondent nos. 7 and 8(defendants nos. 2 and 3), it would be an ancestral property in their hands and indisputedly respondent nos. 1 to 6 are neither parties to the proceedings nor consented when the compromise decree was executed in Execution Appeal No. 2 of 1974 (Exhibit P-8) dated 7 th March, 1974 and admittedly the same would not be binding upon their share over the property.26. It goes without saying that the compromise would bind the share of respondent nos. 7 to 9(defendants nos. 2 to 4) as they are party to the compromise which was entered into Execution Appeal No. 2 of 1974 and has been rightly recorded by the High Court under its impugned judgment. We find no error in a finding of fact which calls for any further interference of this Court.27. We find substance on the submission of learned counsel for the respondents that after the decree of the suit was put in execution a deed reconveyancing the subject property to respondent nos. 7 to 9 (defendants nos. 2 to 4) was executed and were put in possession on 7 th March, 1974, mere filing of an Execution Appeal would not take away the efficacy of the reconveyance decree already passed and the execution stands effected and the right, title and interest in the subject property could not be defeated by the compromise to which respondent nos. 1 to 6 (plaintiffs) were not parties and as such, the said compromise would not bind the share of respondent nos. 1 to 6.28. The submission of learned counsel for the appellant(s) that respondent nos. 1 to 6 failed to establish the existence of the property in the hands of any member in the joint family property or give rise to any presumption that the property is coparcenary property is misplaced for the reason that the factual matrix of which a detailed reference has been made indicates that the property in the hands of respondent nos. 7 to 9(defendants nos. 2 to 4) of a joint family and confers on the property the character of coparcenary property in the hands of respondent nos. 1 to 6. | 0[ds]22. After the restoration of possession of the subject property on 7 th March, 1974, the title of the property reassumed its original character of joint family property in the hands of respondent nos. 7 to 9 (defendants nos. 2 to 4) and has created the right of inheritance of respondent nos. 1 to 6 in the joint family property and indisputedly, they were neither consulted nor made parties to the said compromise.Indisputedly, respondent nos. 1 to 6 (original plaintiffs) were not parties to the compromise dated 25 th March, 1976 and the subject property at that time was joint family property and the compromise entered into between the parties would not bind the rights of respondent nos. 1 to 6(grandsons of propositus Chikkanna).25. It is an admitted fact on record that the property was purchased by Chikkanna from his sister Thayamma and respondent nos. 7 to 9(defendants nos. 2 to 4) have inherited the property after death of propositus Chikkanna. Respondent nos. 1 to 6 are children of respondent nos. 7 and 8(defendants nos. 2 and 3), it would be an ancestral property in their hands and indisputedly respondent nos. 1 to 6 are neither parties to the proceedings nor consented when the compromise decree was executed in Execution Appeal No. 2 of 1974 (Exhibit P-8) dated 7 th March, 1974 and admittedly the same would not be binding upon their share over the property.26. It goes without saying that the compromise would bind the share of respondent nos. 7 to 9(defendants nos. 2 to 4) as they are party to the compromise which was entered into Execution Appeal No. 2 of 1974 and has been rightly recorded by the High Court under its impugned judgment. We find no error in a finding of fact which calls for any further interference of this Court.27. We find substance on the submission of learnedcounsel for the respondents that after the decree of the suit was put in execution a deed reconveyancing the subject property to respondent nos. 7 to 9 (defendants nos. 2 to 4) was executed and were put in possession on 7 th March, 1974, mere filing of an Execution Appeal would not take away the efficacy of the reconveyance decree already passed and the execution stands effected and the right, title and interest in the subject property could not be defeated by the compromise to which respondent nos. 1 to 6 (plaintiffs) were not parties and as such, the said compromise would not bind the share of respondent nos. 1 to 6.e submission of learned counsel for the appellant(s) that respondent nos. 1 to 6 failed to establish the existence of the property in the hands of any member in the joint family property or give rise to any presumption that the property is coparcenary propertyis misplaced for the reason that the factual matrix of which a detailed reference has been made indicates that the property in the hands of respondent nos. 7 to 9(defendants nos. 2 to 4) of a joint family and confers on the property the character of coparcenary property in the hands of respondent nos. 1 to 6. | 0 | 3,560 | 598 | ### 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:
trial Court. On an appeal being preferred by respondent nos. 7 to 9(defendants nos. 2 to 4), the First Appellate Court allowed the appeal vide judgment and decree dated 27 th August, 1969. The second appeal being R.S.A. No. 69 of 1970 preferred by the present appellant (defendant no. 1) before the High Court came to be dismissed, thus, the decree became final. Respondent nos. 7 to 9(defendants nos. 2 to 4) put the decree to execution and a deed of reconveyance was executed and possession of the subject property was restored to respondent nos. 7 to 9(defendants nos. 2 to 4) on 7 th March, 1974 and on execution of a decree, it assumed the character of a joint family property in the hands of respondent nos. 7 to 9(defendants nos. 2 to 4).21. It is at the stage of Execution Appeal No. 2 of 1974 preferred at the instance of the appellant (defendant no. 1), the compromise was executed between the parties on 25 th March, 1976 and part of the possession of the subject property was restored to the appellant(defendant no. 1).22. After the restoration of possession of the subject property on 7 th March, 1974, the title of the property reassumed its original character of joint family property in the hands of respondent nos. 7 to 9 (defendants nos. 2 to 4) and has created the right of inheritance of respondent nos. 1 to 6 in the joint family property and indisputedly, they were neither consulted nor made parties to the said compromise.23. It is well settled and held by this Court in Smt. Dipo Vs. Wassan Singh and Others (supra) that the property inherited from the father by his sons becomes joint family property in the hands of the sons. The relevant portion is as under:-"2. ………..Property inherited from paternal ancestors is, of course, ?ancestral property? as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations. In Mullas Principles of Hindu Law (15th Edn.), it is stated at p. 289:?. . . if A inherits property, whether movable or immovable, from his father or fathers father, or fathers fathers father, it is ancestral property as regards his male issue. If A has no son, sons son, or sons sons son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases. . . .* * *A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons sons and sons sons sons, but as regards other relations he holds it, and is entitled to hold it, as his absolute property.?Again at p. 291, it is stated:?The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession.?24. Indisputedly, respondent nos. 1 to 6 (original plaintiffs) were not parties to the compromise dated 25 th March, 1976 and the subject property at that time was joint family property and the compromise entered into between the parties would not bind the rights of respondent nos. 1 to 6(grandsons of propositus Chikkanna).25. It is an admitted fact on record that the property was purchased by Chikkanna from his sister Thayamma and respondent nos. 7 to 9(defendants nos. 2 to 4) have inherited the property after death of propositus Chikkanna. Respondent nos. 1 to 6 are children of respondent nos. 7 and 8(defendants nos. 2 and 3), it would be an ancestral property in their hands and indisputedly respondent nos. 1 to 6 are neither parties to the proceedings nor consented when the compromise decree was executed in Execution Appeal No. 2 of 1974 (Exhibit P-8) dated 7 th March, 1974 and admittedly the same would not be binding upon their share over the property.26. It goes without saying that the compromise would bind the share of respondent nos. 7 to 9(defendants nos. 2 to 4) as they are party to the compromise which was entered into Execution Appeal No. 2 of 1974 and has been rightly recorded by the High Court under its impugned judgment. We find no error in a finding of fact which calls for any further interference of this Court.27. We find substance on the submission of learned counsel for the respondents that after the decree of the suit was put in execution a deed reconveyancing the subject property to respondent nos. 7 to 9 (defendants nos. 2 to 4) was executed and were put in possession on 7 th March, 1974, mere filing of an Execution Appeal would not take away the efficacy of the reconveyance decree already passed and the execution stands effected and the right, title and interest in the subject property could not be defeated by the compromise to which respondent nos. 1 to 6 (plaintiffs) were not parties and as such, the said compromise would not bind the share of respondent nos. 1 to 6.28. The submission of learned counsel for the appellant(s) that respondent nos. 1 to 6 failed to establish the existence of the property in the hands of any member in the joint family property or give rise to any presumption that the property is coparcenary property is misplaced for the reason that the factual matrix of which a detailed reference has been made indicates that the property in the hands of respondent nos. 7 to 9(defendants nos. 2 to 4) of a joint family and confers on the property the character of coparcenary property in the hands of respondent nos. 1 to 6.
### Response:
0
### Explanation:
22. After the restoration of possession of the subject property on 7 th March, 1974, the title of the property reassumed its original character of joint family property in the hands of respondent nos. 7 to 9 (defendants nos. 2 to 4) and has created the right of inheritance of respondent nos. 1 to 6 in the joint family property and indisputedly, they were neither consulted nor made parties to the said compromise.Indisputedly, respondent nos. 1 to 6 (original plaintiffs) were not parties to the compromise dated 25 th March, 1976 and the subject property at that time was joint family property and the compromise entered into between the parties would not bind the rights of respondent nos. 1 to 6(grandsons of propositus Chikkanna).25. It is an admitted fact on record that the property was purchased by Chikkanna from his sister Thayamma and respondent nos. 7 to 9(defendants nos. 2 to 4) have inherited the property after death of propositus Chikkanna. Respondent nos. 1 to 6 are children of respondent nos. 7 and 8(defendants nos. 2 and 3), it would be an ancestral property in their hands and indisputedly respondent nos. 1 to 6 are neither parties to the proceedings nor consented when the compromise decree was executed in Execution Appeal No. 2 of 1974 (Exhibit P-8) dated 7 th March, 1974 and admittedly the same would not be binding upon their share over the property.26. It goes without saying that the compromise would bind the share of respondent nos. 7 to 9(defendants nos. 2 to 4) as they are party to the compromise which was entered into Execution Appeal No. 2 of 1974 and has been rightly recorded by the High Court under its impugned judgment. We find no error in a finding of fact which calls for any further interference of this Court.27. We find substance on the submission of learnedcounsel for the respondents that after the decree of the suit was put in execution a deed reconveyancing the subject property to respondent nos. 7 to 9 (defendants nos. 2 to 4) was executed and were put in possession on 7 th March, 1974, mere filing of an Execution Appeal would not take away the efficacy of the reconveyance decree already passed and the execution stands effected and the right, title and interest in the subject property could not be defeated by the compromise to which respondent nos. 1 to 6 (plaintiffs) were not parties and as such, the said compromise would not bind the share of respondent nos. 1 to 6.e submission of learned counsel for the appellant(s) that respondent nos. 1 to 6 failed to establish the existence of the property in the hands of any member in the joint family property or give rise to any presumption that the property is coparcenary propertyis misplaced for the reason that the factual matrix of which a detailed reference has been made indicates that the property in the hands of respondent nos. 7 to 9(defendants nos. 2 to 4) of a joint family and confers on the property the character of coparcenary property in the hands of respondent nos. 1 to 6.
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Rodemadan India Limited Vs. International Trade Expo Centre Limited | disputed by Mr. Nariman, appearing for the Petitioner-Company. 17. It is not possible to accept the correctness of the disputed documents or to proceed on the footing that there was such a resolution passed in an Extraordinary General Meeting by which the Management Agreement of 29.10.2003 was not approved and, therefore, resolved to be treated as null and void. Mr. Ranjit Kumar then suggested that he be given an opportunity to lead evidence, including oral evidence to substantiate his stand. Exercising the discretion granted to me in Patel Engineering (supra), I decline Mr. Ranjit Kumars request as I do not believe that oral evidence is necessary to determine the present issue. I decline to do so far even if the power under Section 11(6) be judicial in the sense of requiring a judicial determination by the designate of the Chief Justice, it surely does not render the designate of the Chief Justice into a trial court. 18. Mr. Ranjit Kumar then placed reliance on Clause (6) of the Minutes of the Meeting of the Respondent-Company dated 29.10.2003 in which there was a Resolution passed with regard to "Management Agreement" which inter alia reads as under: "6. Management Agreement Mr. Roger Shashoua proposed to grant a (sic) exclusive Management Agreement to Rodemadan India Ltd. to manage the upcoming expocentre on a minimum guarantee basis. The way the Expocentre will have confirmed income from the beginning and will enjoy the worldwide experience of Rodemadan India Ltd. The Board members agreed to the proposals, subject to statutory approvals. Resolved that the management contract with Rodemadan India Ltd. for the management of the centre be approved by all board members present subject to statutory approvals from the respective authorities, if any..." 19. There is no dispute on this resolution. Admittedly, the Director of the Petitioner-Company had attended this meeting and, in fact, it is pursuant to this resolution that the Management Agreement dated 29.10.2003 was entered into between the Petitioner and the Respondent. Mr. Ranjit Kumar contended that the said resolution proved that the Management Contract was "subject to statutory approval from the respective authorities, if any". According to him, Mr. Roger Shashoua is a Director of Rodemadan India Limited (the Petitioner-Company) and another company, known as, Rodemadan Holdings Ltd., and also a shareholder in the Respondent-Company. He contends that Section 299 of the Companies Act, 1956 contemplates that: "Every director of a company who is in any way, whether directly or indirectly, concerned or interested in a contract or arrangement, or proposed contract or arrangement, entered into or to be entered into, by or on behalf of the company, shall disclose the nature of his concern or interest at a meeting of the Board of directors." 20. Under Section 300, such a Director is precluded from taking any part in the discussion of the Board of Directors nor allowed to vote with regard to a resolution touching upon such a contract. Learned counsel contended that Mr. Roger Shashoua was interested in the contract, and therefore, the Management Contract was null and void because an interested director had voted thereupon. 21. To say that least, the argument appears to be one of sheer desperation, in my view. It is nobodys case that Mr. Roger Shashoua is a party to the Management Agreement. The Management Agreement is between the Petitioner-Company and the Respondent-Company. Merely because Mr. Roger Shashoua happens to be a Director of the Petitioner-Company as well as, a shareholder in the Respondent-Company, I do not think that the provisions of Sections 299 or 300 of the Companies Act were attracted to the situation, which required approval of the Government. 22. The next contention raised by Mr. Ranjit Kumar is that the Petitioner is attempting to obtain specific performance when specific performance of the contract cannot be granted in arbitral proceedings. In fact, this contention has been squarely rejected by the judgment of this Court in Olympus Superstructures Pvt. Ltd. vs. Meena Vijay Khetan and others (1999) 5 SCC 651 ) 23. Further, it was urged that Clauses 8.0 and 8.1 of the Management Agreement are mutually exclusive and, therefore, the relief for specific performance cannot be asked for and since no consideration had been paid the contract was void and unenforceable. In my view, these are not issues to be considered in a petition under Section 11(6) of the Act, as they can all be raised during the arbitral proceedings. 24. In short, I am not satisfied that the arbitral agreement was vitiated on any of the grounds, averred by Mr. Ranjit Kumar. I am satisfied that there exists a valid arbitration agreement which contemplates that all disputes between the parties under that agreement be referred to arbitration. 25. Finally, it is contended that as recourse had been taken by the Petitioner under Section 9 of the Act to obtain interim relief by moving the Delhi High Court by their Original OMP No. 98/2005 dated 24.3.2005, by reason of Section 42 of the Act that court alone could have jurisdiction upon the arbitral tribunal. In my view, this contention has no merit as I have held earlier, neither the Chief Justice nor his designate under Section 11(6) is a "court" as contemplated under the Act. Section 2(1)(e) of the Act defines the expression "court". The bar of jurisdiction under Section 42 is only intended to apply to a "court" as defined in Section 2(1)(e). The objection, therefore, has no merit and is rejected. 26. The situation is one of a dispute between the Petitioner, which is a foreign company and the Respondent and is therefore, an "International Commercial Arbitration" within the meaning of Section 2(1)(f) of the Act. There is a dispute between the parties where both parties are subject to an arbitration agreement. Further, the appointed arbitrators have failed to reach an agreement upon a Chairperson/ Presiding Arbitrator of the Arbitral Tribunal. Hence, I am satisfied that all the preliminary conditions specified in Section 11(6) and Patel Engineering (supra) have been met. | 1[ds]7. In my view, this contention is entirely misconceived for two reasons. In the first place, Article 145 of the Constitution itself proceeds by declaring that the provisions of the Article were "subject to the provisions of any law made by Parliament". The Act is definitely a "law made by Parliament" and it does not prescribe that a petition under Section 11(6) has to be heard by a Bench consisting of at least two Judges. Second, the power under Article 145 of the Constitution and the Rules framed thereunder, are intended to govern the practice and procedure of the Supreme Court. I am unable to persuade myself to believe that, the power exercisable by the Chief Justice under Section 11(6) of the Act is the power of the Supreme Court under the ConstitutionSince this is the power of the Chief Justice and not the power of the Supreme Court, the specification in Order VII Rule 1 of the Rules as to the minimum number of Judges, would have no application thereto. If the argument of the learned counsel is right, then even the Chief Justice cannot pass such an order unless he is sitting in a Bench with one or more companion Judge. No such intention is evidenced by Parliament in enacting Section 11(6) of the Act. Since Parliament has enacted a law under which the power is exercisable by the Chief Justice or his designate, who could be "any person or institution", I do not think that the requirement of Order VII Rule 1 of the Rules would apply to such a situation at all. The contention is, therefore, rejected9. The Respondents main opposition to this petition is on the ground that there is no arbitration agreement in existence since the Management Agreement was merely a proposal, which was subject to approval of the shareholders of the company, that a meeting was called for the shareholders of the company at which the said proposal was put forward for approval and was specifically rejected by a resolution passed by the shareholders; that the nomination of Justice Jain was without prejudice to the rights and contentions of the Respondent and that this petition was misconceived and untenable as the High Court of Delhi would have exclusive jurisdiction in the matte, as it had already been moved under Section 9 of the Act. For the said reasons, the Respondent has sought dismissal of this petition20. Under Section 300, such a Director is precluded from taking any part in the discussion of the Board of Directors nor allowed to vote with regard to a resolution touching upon such a contract. Learned counsel contended that Mr. Roger Shashoua was interested in the contract, and therefore, the Management Contract was null and void because an interested director had voted thereupon21. To say that least, the argument appears to be one of sheer desperation, in my view. It is nobodys case that Mr. Roger Shashoua is a party to the Management Agreement. The Management Agreement is between they and the. Merely because Mr. Roger Shashoua happens to be a Director of they as well as, a shareholder in the, I do not think that the provisions of Sections 299 or 300 of the Companies Act were attracted to the situation, which required approval of the Government22. The next contention raised by Mr. Ranjit Kumar is that the Petitioner is attempting to obtain specific performance when specific performance of the contract cannot be granted in arbitral proceedings. In fact, this contention has been squarely rejected by the judgment of this Court in Olympus Superstructures Pvt. Ltd. vs. Meena Vijay Khetan and others (1999) 5 SCC 651 )23. Further, it was urged that Clauses 8.0 and 8.1 of the Management Agreement are mutually exclusive and, therefore, the relief for specific performance cannot be asked for and since no consideration had been paid the contract was void and unenforceable. In my view, these are not issues to be considered in a petition under Section 11(6) of the Act, as they can all be raised during the arbitral proceedings24. In short, I am not satisfied that the arbitral agreement was vitiated on any of the grounds, averred by Mr. Ranjit Kumar. I am satisfied that there exists a valid arbitration agreement which contemplates that all disputes between the parties under that agreement be referred to arbitration25. Finally, it is contended that as recourse had been taken by the Petitioner under Section 9 of the Act to obtain interim relief by moving the Delhi High Court by their Original OMP No. 98/2005 dated 24.3.2005, by reason of Section 42 of the Act that court alone could have jurisdiction upon the arbitral tribunal. In my view, this contention has no merit as I have held earlier, neither the Chief Justice nor his designate under Section 11(6) is a "court" as contemplated under the Act. Section 2(1)(e) of the Act defines the expression "court". The bar of jurisdiction under Section 42 is only intended to apply to a "court" as defined in Section 2(1)(e). The objection, therefore, has no merit and is rejected26. The situation is one of a dispute between the Petitioner, which is a foreigncompanyand the Respondentand is therefore, an "International Commercial Arbitration" within the meaning of Section 2(1)(f) of the Act. There is a dispute between the parties where both parties are subject to an arbitration agreement. Further, the appointed arbitrators have failed to reach an agreement upon a Chairperson/ Presiding Arbitrator of the Arbitral Tribunal. Hence, I am satisfied that all the preliminary conditions specified in Section 11(6) and Patel Engineering (supra) have been met. | 1 | 4,326 | 1,076 | ### Instruction:
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disputed by Mr. Nariman, appearing for the Petitioner-Company. 17. It is not possible to accept the correctness of the disputed documents or to proceed on the footing that there was such a resolution passed in an Extraordinary General Meeting by which the Management Agreement of 29.10.2003 was not approved and, therefore, resolved to be treated as null and void. Mr. Ranjit Kumar then suggested that he be given an opportunity to lead evidence, including oral evidence to substantiate his stand. Exercising the discretion granted to me in Patel Engineering (supra), I decline Mr. Ranjit Kumars request as I do not believe that oral evidence is necessary to determine the present issue. I decline to do so far even if the power under Section 11(6) be judicial in the sense of requiring a judicial determination by the designate of the Chief Justice, it surely does not render the designate of the Chief Justice into a trial court. 18. Mr. Ranjit Kumar then placed reliance on Clause (6) of the Minutes of the Meeting of the Respondent-Company dated 29.10.2003 in which there was a Resolution passed with regard to "Management Agreement" which inter alia reads as under: "6. Management Agreement Mr. Roger Shashoua proposed to grant a (sic) exclusive Management Agreement to Rodemadan India Ltd. to manage the upcoming expocentre on a minimum guarantee basis. The way the Expocentre will have confirmed income from the beginning and will enjoy the worldwide experience of Rodemadan India Ltd. The Board members agreed to the proposals, subject to statutory approvals. Resolved that the management contract with Rodemadan India Ltd. for the management of the centre be approved by all board members present subject to statutory approvals from the respective authorities, if any..." 19. There is no dispute on this resolution. Admittedly, the Director of the Petitioner-Company had attended this meeting and, in fact, it is pursuant to this resolution that the Management Agreement dated 29.10.2003 was entered into between the Petitioner and the Respondent. Mr. Ranjit Kumar contended that the said resolution proved that the Management Contract was "subject to statutory approval from the respective authorities, if any". According to him, Mr. Roger Shashoua is a Director of Rodemadan India Limited (the Petitioner-Company) and another company, known as, Rodemadan Holdings Ltd., and also a shareholder in the Respondent-Company. He contends that Section 299 of the Companies Act, 1956 contemplates that: "Every director of a company who is in any way, whether directly or indirectly, concerned or interested in a contract or arrangement, or proposed contract or arrangement, entered into or to be entered into, by or on behalf of the company, shall disclose the nature of his concern or interest at a meeting of the Board of directors." 20. Under Section 300, such a Director is precluded from taking any part in the discussion of the Board of Directors nor allowed to vote with regard to a resolution touching upon such a contract. Learned counsel contended that Mr. Roger Shashoua was interested in the contract, and therefore, the Management Contract was null and void because an interested director had voted thereupon. 21. To say that least, the argument appears to be one of sheer desperation, in my view. It is nobodys case that Mr. Roger Shashoua is a party to the Management Agreement. The Management Agreement is between the Petitioner-Company and the Respondent-Company. Merely because Mr. Roger Shashoua happens to be a Director of the Petitioner-Company as well as, a shareholder in the Respondent-Company, I do not think that the provisions of Sections 299 or 300 of the Companies Act were attracted to the situation, which required approval of the Government. 22. The next contention raised by Mr. Ranjit Kumar is that the Petitioner is attempting to obtain specific performance when specific performance of the contract cannot be granted in arbitral proceedings. In fact, this contention has been squarely rejected by the judgment of this Court in Olympus Superstructures Pvt. Ltd. vs. Meena Vijay Khetan and others (1999) 5 SCC 651 ) 23. Further, it was urged that Clauses 8.0 and 8.1 of the Management Agreement are mutually exclusive and, therefore, the relief for specific performance cannot be asked for and since no consideration had been paid the contract was void and unenforceable. In my view, these are not issues to be considered in a petition under Section 11(6) of the Act, as they can all be raised during the arbitral proceedings. 24. In short, I am not satisfied that the arbitral agreement was vitiated on any of the grounds, averred by Mr. Ranjit Kumar. I am satisfied that there exists a valid arbitration agreement which contemplates that all disputes between the parties under that agreement be referred to arbitration. 25. Finally, it is contended that as recourse had been taken by the Petitioner under Section 9 of the Act to obtain interim relief by moving the Delhi High Court by their Original OMP No. 98/2005 dated 24.3.2005, by reason of Section 42 of the Act that court alone could have jurisdiction upon the arbitral tribunal. In my view, this contention has no merit as I have held earlier, neither the Chief Justice nor his designate under Section 11(6) is a "court" as contemplated under the Act. Section 2(1)(e) of the Act defines the expression "court". The bar of jurisdiction under Section 42 is only intended to apply to a "court" as defined in Section 2(1)(e). The objection, therefore, has no merit and is rejected. 26. The situation is one of a dispute between the Petitioner, which is a foreign company and the Respondent and is therefore, an "International Commercial Arbitration" within the meaning of Section 2(1)(f) of the Act. There is a dispute between the parties where both parties are subject to an arbitration agreement. Further, the appointed arbitrators have failed to reach an agreement upon a Chairperson/ Presiding Arbitrator of the Arbitral Tribunal. Hence, I am satisfied that all the preliminary conditions specified in Section 11(6) and Patel Engineering (supra) have been met.
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7. In my view, this contention is entirely misconceived for two reasons. In the first place, Article 145 of the Constitution itself proceeds by declaring that the provisions of the Article were "subject to the provisions of any law made by Parliament". The Act is definitely a "law made by Parliament" and it does not prescribe that a petition under Section 11(6) has to be heard by a Bench consisting of at least two Judges. Second, the power under Article 145 of the Constitution and the Rules framed thereunder, are intended to govern the practice and procedure of the Supreme Court. I am unable to persuade myself to believe that, the power exercisable by the Chief Justice under Section 11(6) of the Act is the power of the Supreme Court under the ConstitutionSince this is the power of the Chief Justice and not the power of the Supreme Court, the specification in Order VII Rule 1 of the Rules as to the minimum number of Judges, would have no application thereto. If the argument of the learned counsel is right, then even the Chief Justice cannot pass such an order unless he is sitting in a Bench with one or more companion Judge. No such intention is evidenced by Parliament in enacting Section 11(6) of the Act. Since Parliament has enacted a law under which the power is exercisable by the Chief Justice or his designate, who could be "any person or institution", I do not think that the requirement of Order VII Rule 1 of the Rules would apply to such a situation at all. The contention is, therefore, rejected9. The Respondents main opposition to this petition is on the ground that there is no arbitration agreement in existence since the Management Agreement was merely a proposal, which was subject to approval of the shareholders of the company, that a meeting was called for the shareholders of the company at which the said proposal was put forward for approval and was specifically rejected by a resolution passed by the shareholders; that the nomination of Justice Jain was without prejudice to the rights and contentions of the Respondent and that this petition was misconceived and untenable as the High Court of Delhi would have exclusive jurisdiction in the matte, as it had already been moved under Section 9 of the Act. For the said reasons, the Respondent has sought dismissal of this petition20. Under Section 300, such a Director is precluded from taking any part in the discussion of the Board of Directors nor allowed to vote with regard to a resolution touching upon such a contract. Learned counsel contended that Mr. Roger Shashoua was interested in the contract, and therefore, the Management Contract was null and void because an interested director had voted thereupon21. To say that least, the argument appears to be one of sheer desperation, in my view. It is nobodys case that Mr. Roger Shashoua is a party to the Management Agreement. The Management Agreement is between they and the. Merely because Mr. Roger Shashoua happens to be a Director of they as well as, a shareholder in the, I do not think that the provisions of Sections 299 or 300 of the Companies Act were attracted to the situation, which required approval of the Government22. The next contention raised by Mr. Ranjit Kumar is that the Petitioner is attempting to obtain specific performance when specific performance of the contract cannot be granted in arbitral proceedings. In fact, this contention has been squarely rejected by the judgment of this Court in Olympus Superstructures Pvt. Ltd. vs. Meena Vijay Khetan and others (1999) 5 SCC 651 )23. Further, it was urged that Clauses 8.0 and 8.1 of the Management Agreement are mutually exclusive and, therefore, the relief for specific performance cannot be asked for and since no consideration had been paid the contract was void and unenforceable. In my view, these are not issues to be considered in a petition under Section 11(6) of the Act, as they can all be raised during the arbitral proceedings24. In short, I am not satisfied that the arbitral agreement was vitiated on any of the grounds, averred by Mr. Ranjit Kumar. I am satisfied that there exists a valid arbitration agreement which contemplates that all disputes between the parties under that agreement be referred to arbitration25. Finally, it is contended that as recourse had been taken by the Petitioner under Section 9 of the Act to obtain interim relief by moving the Delhi High Court by their Original OMP No. 98/2005 dated 24.3.2005, by reason of Section 42 of the Act that court alone could have jurisdiction upon the arbitral tribunal. In my view, this contention has no merit as I have held earlier, neither the Chief Justice nor his designate under Section 11(6) is a "court" as contemplated under the Act. Section 2(1)(e) of the Act defines the expression "court". The bar of jurisdiction under Section 42 is only intended to apply to a "court" as defined in Section 2(1)(e). The objection, therefore, has no merit and is rejected26. The situation is one of a dispute between the Petitioner, which is a foreigncompanyand the Respondentand is therefore, an "International Commercial Arbitration" within the meaning of Section 2(1)(f) of the Act. There is a dispute between the parties where both parties are subject to an arbitration agreement. Further, the appointed arbitrators have failed to reach an agreement upon a Chairperson/ Presiding Arbitrator of the Arbitral Tribunal. Hence, I am satisfied that all the preliminary conditions specified in Section 11(6) and Patel Engineering (supra) have been met.
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D.K. AGRAWAL Vs. COUNCIL OF THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA | Council made an incorrect statement that the Council had considered all the materials on record and the written and oral submissions of the appellant. The observations of the Disciplinary Committee cannot by any stretch of imagination be treated as findings. At best, they may be termed as the material which falls within the domain of consideration by the Council. The Council has failed to give its own independent findings. The recommendations made by the Council are not supported by independent reasons. The recommendations, in our opinion, have been made mechanically by the Council. 22. Recording of reasons is a principle of natural justice and every judicial/quasi-judicial order must be supported by reasons to be recorded in writing. It ensures transparency and fairness in the decision-making process. The person who is adversely affected wants to know as to why his submissions have not been accepted. Giving of reasons ensures that a hearing is not rendered as a meaningless charade. Unless an adjudicatory body is required to give reasons and make findings of fact indicating the evidence upon which it relied, there is no way of knowing whether the concerned body genuinely applied itself to and evaluated the arguments and the evidence advanced at the hearing. Giving reasons is all the more necessary because it gives satisfaction to the party against whom a decision is taken. It is a well-known principle that justice should not only be done but should also be seen to be done. An unreasoned decision may be just, but it may not appear to be so to the person affected. A reasoned decision, on the other hand, will have the appearance of fairness and justice. 23. In M/s. Woolcombers of India Ltd. v. Woolcombers Workers Union and Ors. (1974) 3 SCC 318 , while dealing with an award of an Industrial Tribunal, this Court found that the award stated only the conclusions and did not providing the supporting reasons. The matter was remitted back to the Tribunal to record fresh findings and it was observed that providing reasons in support of the conclusion is essential. The reasoning has been enumerated below: 5. …The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well-known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasons conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi-judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. In many cases this investment of time and industry will be saved if reasons are given in support of the conclusions. So it is necessary to emphasise that judicial and quasi-judicial authorities should always give reasons in support of their conclusions. 24. Further, this Court in State of West Bengal v. Atul Krishna Shaw and Anr. (1991) Supp (1) SCC 414 has held that failure to give reasons does not instill public confidence in the correctness of the decisions rendered by the adjudicatory bodies. It was held thus: 7. ……it is indisputably true that it is a quasi-judicial proceeding. If the appellate authority had appreciated the evidence on record and recorded the findings of fact, those findings are binding on this Court or the High Court. By process of judicial review, we cannot appreciate the evidence and record our own findings of fact. If the findings are based on no evidence or based on conjectures or surmises and no reasonable man would, on given facts and circumstances, come to the conclusion reached by the appellate authority on the basis of the evidence on record, certainly this Court would oversee whether the findings recorded by the appellate authority is based on no evidence or beset with surmises or conjectures. Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the Tribunal itself. Therefore, statement of reasons is one of the essentials of justice. 25. As noticed above, where the Council has found any member of the Institute to be guilty of misconduct, it is required under the Act to forward the matter to the High Court with its recommendations and the High Court has to pass final order either dismissing the complaint or penalizing the member of the Institute. The order of the Council, imposing penalty upon the member, is also appealable by the members aggrieved before the High Court. In the circumstances, it is all the more necessary that the recommendation/order of the Council should contain reasons for the conclusion. 26. We are of the view that the High Court has equally erred in accepting the recommendations of the Council without applying its own logic to this aspect of the matter. We are also of the view that the Council has to reconsider the matter afresh after granting the appellant an opportunity of being heard. Having regard to the above, we do not propose to consider the other contentions of the parties. | 1[ds]17. It is clear from the above provisions that the report of the Disciplinary Committee will contain a statement of the allegations, the defence entered by the members, the recorded evidence and the conclusions expressed by the Disciplinary Committee. The conclusions of the Disciplinary Committee are tentative and the same are not recorded as findings. It is only the Council which is empowered to find out whether the member is guilty of misconduct. If on receipt of the report, the Council finds that the member is not guilty of misconduct, Section 21(2) requires that it shall record its finding accordingly and direct that the proceedings shall be filed or the complaint shall be dismissed. On the other hand, if the Council finds that the member is guilty of misconduct, Section 21(3) requires it to record a finding accordingly and to proceed in the manner laid down in the succeeding sub-sections. The findings by the Council constitute the determinative decision as to the guilt of the member and because it is determinative in character, the Act requires it to be recorded. Thus, the Council has to determine that a member is guilty of misconduct and the task of recording of the findings has been specifically assigned to the Council. Sub-section (4) of Section 21 mandates that where a member of the Institute has been guilty of professional misconduct specified in the First Schedule of the Act, the Council shall afford to such member an opportunity of being heard before any orders are passed against him. After recording a finding that a member is guilty of misconduct, the Act moves forward to the final stage of penalisation. The recording of the finding by the Council is the jurisdictional springboard for the penalty proceedings which follow.18. In Institute of Chartered Accountants of India v. L.K. Ratna and Ors. 1986 4 SCC 537 this Court considered the duties of the Council as under :12. Now when it enters upon the task of finding whether the member is guilty of misconduct, the Council considers the report submitted by the Disciplinary Committee. The report constitutes the material to be considered by the Council. The Council will take into regard the allegations against the member, his case in defence, the recorded evidence and the conclusions expressed by the Disciplinary Committee. Although the member has participated in the inquiry, he has had no opportunity to demonstrate the fallibility of the conclusions of the Disciplinary Committee. It is material which falls within the domain of consideration by the Council. It should also be open to the member, we think, to point out to the Council any error in the procedure adopted by the Disciplinary Committee which could have resulted in vitiating the inquiry. Section 21(8) arms the Council with power to record oral and documentary evidence, and it is precisely to take account of that eventuality and to repair the error that this power seems to have been conferred. It cannot, therefore, be denied that even though the member has participated in the inquiry before the Disciplinary Committee, there is a range of consideration by the Council on which he has not been heard. He is clearly entitled to an opportunity of hearing before the Council finds him guilty of misconduct.13. At this point it is necessary to advert to the fundamental character of the power conferred on the Council. The Council is empowered to find a member guilty of misconduct. The penalty which follows is so harsh that it may result in his removal from the Register of Members for a substantial number of years. The removal of his name from the Register deprives him of the right to a certificate of practice. As is clear from Section 6(1) of the Act, he cannot practice without such certificate. In the circumstances there is every reason to presume in favour of an opportunity to the member of being heard by the Council before it proceeds to pronounce upon his guilt. As we have seen, the finding by the Council operates with finality in the proceeding, and it constitutes the foundation for the penalty imposed by the Council on him. We consider it significant that the power to find and record whether a member is guilty of misconduct has been specifically entrusted by the Act to the entire Council itself and not to a few of its members who constitute the Disciplinary Committee. It is the character and complexion of the proceeding considered in conjunction with the structure of power constituted by the Act which leads us to the conclusion that the member is entitled to a hearing by the Council before it can find him guilty. Upon the approach which has found favour with us, we find no relevance in James Edward Jeffs v. New Zealand Dairy Production and Marketing Board – (1967) 1 AC 551 cited on behalf of the appellant. The Court made observations there of a general nature and indicated the circumstances when evidence could be recorded and submissions of the parties heard by a person other than the decision-making authority. Those observations can have no play in a power structure such as the one before us.19. Similarly, in Institute of Chartered Accountants of India v. Price Waterhouse and Ors. (1997) 6 SCC 312 it was held by this Court that the Disciplinary Committee is a fact-finding body which is subordinate to the Council as a fact-finding Authority. After analysing Section 21 and Regulation 15, this Court held that the Council is required to independently consider the explanation submitted by the member and the evidence adduced in the inquiry before the Disciplinary Committee and the report of the Committee. It was held thus:14.…A combined reading of relevant provisions in Section 21 and Regulation 16 does indicate that the recording of a finding of guilt or non-guilt by the Council is mandatory to take further action or to dismiss the complaint or for further process. The Council is required to consider independently the explanation submitted by the member and the evidence adduced in the enquiry before the Disciplinary Committee and the report of the Disciplinary Committee. It provides an in-built mechanism under which the Council itself is required to examine the case of professional or other misconduct of a member of the Institute or associate member, taking the aid of the report submitted by the Disciplinary Committee, the evidence adduced before the Committee and the explanation offered by the delinquent member. Entire material constitutes the record of the proceeding before the Council to reach a finding whether or not the delinquent member committed professional or other misconduct. Otherwise, the primacy accorded to the report of the Disciplinary Committee attains finality, denuding the Council of the power of discipline over the members of the Institute; that would render deleterious effect on the maintenance of discipline among the members or associate members of the Institute.21. Needless to say that, the power exercised by the Council under Section 21 is quasi-judicial in nature. Perusal of the recommendations of the Council shows that it did not discuss the report of the Disciplinary Committee, the written statement and the oral submissions of the appellant while coming to the conclusion that he is guilty of misconduct. However, the concluding portion of the recommendations of the Council made an incorrect statement that the Council had considered all the materials on record and the written and oral submissions of the appellant. The observations of the Disciplinary Committee cannot by any stretch of imagination be treated as findings. At best, they may be termed as the material which falls within the domain of consideration by the Council. The Council has failed to give its own independent findings. The recommendations made by the Council are not supported by independent reasons. The recommendations, in our opinion, have been made mechanically by the Council.23. In M/s. Woolcombers of India Ltd. v. Woolcombers Workers Union and Ors. (1974) 3 SCC 318 , while dealing with an award of an Industrial Tribunal, this Court found that the award stated only the conclusions and did not providing the supporting reasons. The matter was remitted back to the Tribunal to record fresh findings and it was observed that providing reasons in support of the conclusion is essential. The reasoning has been enumerated below:5. …The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well-known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasons conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi-judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. In many cases this investment of time and industry will be saved if reasons are given in support of the conclusions. So it is necessary to emphasise that judicial and quasi-judicial authorities should always give reasons in support of their conclusions.25. As noticed above, where the Council has found any member of the Institute to be guilty of misconduct, it is required under the Act to forward the matter to the High Court with its recommendations and the High Court has to pass final order either dismissing the complaint or penalizing the member of the Institute. The order of the Council, imposing penalty upon the member, is also appealable by the members aggrieved before the High Court. In the circumstances, it is all the more necessary that the recommendation/order of the Council should contain reasons for the conclusion.26. We are of the view that the High Court has equally erred in accepting the recommendations of the Council without applying its own logic to this aspect of the matter. We are also of the view that the Council has to reconsider the matter afresh after granting the appellant an opportunity of being heard. Having regard to the above, we do not propose to consider the other contentions of the parties. | 1 | 6,269 | 1,946 | ### 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:
Council made an incorrect statement that the Council had considered all the materials on record and the written and oral submissions of the appellant. The observations of the Disciplinary Committee cannot by any stretch of imagination be treated as findings. At best, they may be termed as the material which falls within the domain of consideration by the Council. The Council has failed to give its own independent findings. The recommendations made by the Council are not supported by independent reasons. The recommendations, in our opinion, have been made mechanically by the Council. 22. Recording of reasons is a principle of natural justice and every judicial/quasi-judicial order must be supported by reasons to be recorded in writing. It ensures transparency and fairness in the decision-making process. The person who is adversely affected wants to know as to why his submissions have not been accepted. Giving of reasons ensures that a hearing is not rendered as a meaningless charade. Unless an adjudicatory body is required to give reasons and make findings of fact indicating the evidence upon which it relied, there is no way of knowing whether the concerned body genuinely applied itself to and evaluated the arguments and the evidence advanced at the hearing. Giving reasons is all the more necessary because it gives satisfaction to the party against whom a decision is taken. It is a well-known principle that justice should not only be done but should also be seen to be done. An unreasoned decision may be just, but it may not appear to be so to the person affected. A reasoned decision, on the other hand, will have the appearance of fairness and justice. 23. In M/s. Woolcombers of India Ltd. v. Woolcombers Workers Union and Ors. (1974) 3 SCC 318 , while dealing with an award of an Industrial Tribunal, this Court found that the award stated only the conclusions and did not providing the supporting reasons. The matter was remitted back to the Tribunal to record fresh findings and it was observed that providing reasons in support of the conclusion is essential. The reasoning has been enumerated below: 5. …The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well-known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasons conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi-judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. In many cases this investment of time and industry will be saved if reasons are given in support of the conclusions. So it is necessary to emphasise that judicial and quasi-judicial authorities should always give reasons in support of their conclusions. 24. Further, this Court in State of West Bengal v. Atul Krishna Shaw and Anr. (1991) Supp (1) SCC 414 has held that failure to give reasons does not instill public confidence in the correctness of the decisions rendered by the adjudicatory bodies. It was held thus: 7. ……it is indisputably true that it is a quasi-judicial proceeding. If the appellate authority had appreciated the evidence on record and recorded the findings of fact, those findings are binding on this Court or the High Court. By process of judicial review, we cannot appreciate the evidence and record our own findings of fact. If the findings are based on no evidence or based on conjectures or surmises and no reasonable man would, on given facts and circumstances, come to the conclusion reached by the appellate authority on the basis of the evidence on record, certainly this Court would oversee whether the findings recorded by the appellate authority is based on no evidence or beset with surmises or conjectures. Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the Tribunal itself. Therefore, statement of reasons is one of the essentials of justice. 25. As noticed above, where the Council has found any member of the Institute to be guilty of misconduct, it is required under the Act to forward the matter to the High Court with its recommendations and the High Court has to pass final order either dismissing the complaint or penalizing the member of the Institute. The order of the Council, imposing penalty upon the member, is also appealable by the members aggrieved before the High Court. In the circumstances, it is all the more necessary that the recommendation/order of the Council should contain reasons for the conclusion. 26. We are of the view that the High Court has equally erred in accepting the recommendations of the Council without applying its own logic to this aspect of the matter. We are also of the view that the Council has to reconsider the matter afresh after granting the appellant an opportunity of being heard. Having regard to the above, we do not propose to consider the other contentions of the parties.
### Response:
1
### Explanation:
Dairy Production and Marketing Board – (1967) 1 AC 551 cited on behalf of the appellant. The Court made observations there of a general nature and indicated the circumstances when evidence could be recorded and submissions of the parties heard by a person other than the decision-making authority. Those observations can have no play in a power structure such as the one before us.19. Similarly, in Institute of Chartered Accountants of India v. Price Waterhouse and Ors. (1997) 6 SCC 312 it was held by this Court that the Disciplinary Committee is a fact-finding body which is subordinate to the Council as a fact-finding Authority. After analysing Section 21 and Regulation 15, this Court held that the Council is required to independently consider the explanation submitted by the member and the evidence adduced in the inquiry before the Disciplinary Committee and the report of the Committee. It was held thus:14.…A combined reading of relevant provisions in Section 21 and Regulation 16 does indicate that the recording of a finding of guilt or non-guilt by the Council is mandatory to take further action or to dismiss the complaint or for further process. The Council is required to consider independently the explanation submitted by the member and the evidence adduced in the enquiry before the Disciplinary Committee and the report of the Disciplinary Committee. It provides an in-built mechanism under which the Council itself is required to examine the case of professional or other misconduct of a member of the Institute or associate member, taking the aid of the report submitted by the Disciplinary Committee, the evidence adduced before the Committee and the explanation offered by the delinquent member. Entire material constitutes the record of the proceeding before the Council to reach a finding whether or not the delinquent member committed professional or other misconduct. Otherwise, the primacy accorded to the report of the Disciplinary Committee attains finality, denuding the Council of the power of discipline over the members of the Institute; that would render deleterious effect on the maintenance of discipline among the members or associate members of the Institute.21. Needless to say that, the power exercised by the Council under Section 21 is quasi-judicial in nature. Perusal of the recommendations of the Council shows that it did not discuss the report of the Disciplinary Committee, the written statement and the oral submissions of the appellant while coming to the conclusion that he is guilty of misconduct. However, the concluding portion of the recommendations of the Council made an incorrect statement that the Council had considered all the materials on record and the written and oral submissions of the appellant. The observations of the Disciplinary Committee cannot by any stretch of imagination be treated as findings. At best, they may be termed as the material which falls within the domain of consideration by the Council. The Council has failed to give its own independent findings. The recommendations made by the Council are not supported by independent reasons. The recommendations, in our opinion, have been made mechanically by the Council.23. In M/s. Woolcombers of India Ltd. v. Woolcombers Workers Union and Ors. (1974) 3 SCC 318 , while dealing with an award of an Industrial Tribunal, this Court found that the award stated only the conclusions and did not providing the supporting reasons. The matter was remitted back to the Tribunal to record fresh findings and it was observed that providing reasons in support of the conclusion is essential. The reasoning has been enumerated below:5. …The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well-known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasons conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi-judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. In many cases this investment of time and industry will be saved if reasons are given in support of the conclusions. So it is necessary to emphasise that judicial and quasi-judicial authorities should always give reasons in support of their conclusions.25. As noticed above, where the Council has found any member of the Institute to be guilty of misconduct, it is required under the Act to forward the matter to the High Court with its recommendations and the High Court has to pass final order either dismissing the complaint or penalizing the member of the Institute. The order of the Council, imposing penalty upon the member, is also appealable by the members aggrieved before the High Court. In the circumstances, it is all the more necessary that the recommendation/order of the Council should contain reasons for the conclusion.26. We are of the view that the High Court has equally erred in accepting the recommendations of the Council without applying its own logic to this aspect of the matter. We are also of the view that the Council has to reconsider the matter afresh after granting the appellant an opportunity of being heard. Having regard to the above, we do not propose to consider the other contentions of the parties.
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DSG Vs. AKG | till Saturday morning. 11. Pursuant to the Order dated 28.07.2018, Dr. Uzma Perveen held four counselling sessions with the child on 31.07.2018, 07.08.2018, 14.08.2018 and 05.09.2018, and submitted her Report dated 14.09.2018 before the Family Court. The Counsellor after observing the behavior and conduct of the mother, opined that the mother showed symptoms of Paranoid Schizophrenia, which required immediate assessment and proper treatment, keeping in mind the welfare of the child. If the mothers condition remained untreated, it would make the child vulnerable, and would have a lasting psychological impact on the child. 12. The Petitioner – mother filed a Review Petition before the Family Court, Tis Hazari seeking Review of Order dated 28.07.2018. The Family Court vide Order dated 16.11.2018 dismissed the Review Petition. The Court referred to the reports of the three Counsellors, and held that the child has expressed her unequivocal desire to live only with the father. She denied the allegations of sexual abuse by the father. The Court held that the child seemed to be very happy in the presence of the father, and that there shall be no change in the interim custody of the minor. 13. The Petitioner – mother challenged the Order dated 16.11.2018 passed by the Family Court before the High Court in MAT. APP (F.C.) 312/2018. 14. During the pendency of the Appeal before the High Court, the Petitioner – mother filed an Application u/S. 151 CPC before the Family Court seeking custody of the minor daughter during the vacations for 15 days. 15. The Family Court vide Order dated 27.02.2019 granted custody of the daughter to the Petitioner – mother from 28.02.2019 to 10.03.2019 for vacations. The Petitioner – mother was directed to make a video call to the father every evening during this period. The custody of the child was to be handed over to the Respondent – father on 11.03.2019. 16. On 10.03.2019, the Petitioner – wife sent a text message to the Respondent – husband that she was in Goa with the minor daughter, and would return only on 15.03.2019. 17. On 14.03.2019, the Respondent – father filed an Application u/S. 12 and 14 of the Contempt of Courts Act r.w. S.151 CPC for contempt of the Orders dated 16.11.2018 and 27.02.2019 against the Petitioner – mother before the Family Court, since the mother had refused to return the custody of the child. The Family Court took cognizance of non-compliance of Orders by the Petitioner – mother, and vide Order dated 18.04.2019 directed the SHO, PS Rajouri Garden to locate the whereabouts of the minor daughter, and produce her before the Court. 18. The minor daughter was found at the residence of the Petitioner – mother, and was produced before the Family Court on 23.04.2019, when custody was handed over to the Respondent – father. 19. The Family Court vide Order dated 23.04.2019 suspended the visitation rights granted to the Petitioner – mother till the next date of hearing. 20. By a subsequent Order dated 03.05.2019, the Family Court held that further visitation to the Petitioner – mother can be allowed only in the Childrens Room, Tiz Hazari Complex, Delhi, where the mother could meet the child on every working 1 st , 3 rd and 4 th Saturday from 3 p.m. to 5 p.m., and on 2 nd Friday from 3:30 p.m. to 5 p.m. The father agreed that as per the convenience of the child, he would allow the mother to see the child at the school gate in the morning before school hours. This arrangement of visitation by the mother is continuing ever since. 21. The High Court vide the impugned Order dated 26.03.2019 dismissed the Appeal filed by the Petitioner – mother, and confirmed the Orders dated 28.07.2018 and 16.11.2018 passed by the Family Court. The High Court held that the three Counsellors Reports indicated that the child was comfortable in the company of the father, and wanted to live with him. The Court observed that the video clippings submitted by the Petitioner – mother do not prima facie support her allegation of sexual abuse by the father. The Order dated 26.03.2019 passed by the High Court is impugned by the Petitioner – mother in the present Special Leave Petition. 22. This Court took up the present SLP for hearing on 25.10.2019 when Notice was issued. The Petitioner – mother submitted a DVD containing some video clippings of the child. She placed on record some additional documents in support of her contention that the child was being allegedly molested by the Respondent – father. 23. On 05.12.2019, the Respondent – husband appeared before this Court in person along with his Counsel. We directed the Respondent - father to produce the child before this Court on 10.12.2019. 24. On 10.12.2019, both the parties and the minor daughter appeared before us. We individually interviewed both the parents and the child. Having interacted with the child, we are of the view that the minor girl is certainly capable of forming an intelligent preference regarding her custody. We found the girl who is over 12 years of age, and is studying in Class VII to be articulate, and unequivocal about her definite desire to reside with her father. She stated that she received love and affection from her father, who was taking care of her food, education, and would assist her in her school projects and activities. Reliance is placed on the judgment of this Court in Nil Ratan Kundu & Anr. v. Abhijit Kundu (2008) 9 SCC 413 : 2008 (11) SCALE 437 that while exercising parens patriae jurisdiction, the Court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favorable surroundings. The Court is not bound either by statutes, nor by strict rules of evidence, nor procedure or precedent. In deciding the issue of custody, the paramount consideration should be the welfare and well-being of the child. | 1[ds]24. On 10.12.2019, both the parties and the minor daughter appeared before us. We individually interviewed both the parents and the childHaving interacted with the child, we are of the view that the minor girl is certainly capable of forming an intelligent preference regarding her custodyWe found the girl who is over 12 years of age, and is studying in Class VII to be articulate, and unequivocal about her definite desire to reside with her father. She stated that she received love and affection from her father, who was taking care of her food, education, and would assist her in her school projects and activitiesReliance is placed on the judgment of this Court in Nil Ratan Kundu & Anr. v. Abhijit Kundu (2008) 9 SCC 413 : 2008 (11) SCALE 437 that while exercising parens patriae jurisdiction, the Court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favorable surroundings. The Court is not bound either by statutes, nor by strict rules of evidence, nor procedure or precedent. In deciding the issue of custody, the paramount consideration should be the welfare and well-being of the child. | 1 | 1,704 | 235 | ### 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:
till Saturday morning. 11. Pursuant to the Order dated 28.07.2018, Dr. Uzma Perveen held four counselling sessions with the child on 31.07.2018, 07.08.2018, 14.08.2018 and 05.09.2018, and submitted her Report dated 14.09.2018 before the Family Court. The Counsellor after observing the behavior and conduct of the mother, opined that the mother showed symptoms of Paranoid Schizophrenia, which required immediate assessment and proper treatment, keeping in mind the welfare of the child. If the mothers condition remained untreated, it would make the child vulnerable, and would have a lasting psychological impact on the child. 12. The Petitioner – mother filed a Review Petition before the Family Court, Tis Hazari seeking Review of Order dated 28.07.2018. The Family Court vide Order dated 16.11.2018 dismissed the Review Petition. The Court referred to the reports of the three Counsellors, and held that the child has expressed her unequivocal desire to live only with the father. She denied the allegations of sexual abuse by the father. The Court held that the child seemed to be very happy in the presence of the father, and that there shall be no change in the interim custody of the minor. 13. The Petitioner – mother challenged the Order dated 16.11.2018 passed by the Family Court before the High Court in MAT. APP (F.C.) 312/2018. 14. During the pendency of the Appeal before the High Court, the Petitioner – mother filed an Application u/S. 151 CPC before the Family Court seeking custody of the minor daughter during the vacations for 15 days. 15. The Family Court vide Order dated 27.02.2019 granted custody of the daughter to the Petitioner – mother from 28.02.2019 to 10.03.2019 for vacations. The Petitioner – mother was directed to make a video call to the father every evening during this period. The custody of the child was to be handed over to the Respondent – father on 11.03.2019. 16. On 10.03.2019, the Petitioner – wife sent a text message to the Respondent – husband that she was in Goa with the minor daughter, and would return only on 15.03.2019. 17. On 14.03.2019, the Respondent – father filed an Application u/S. 12 and 14 of the Contempt of Courts Act r.w. S.151 CPC for contempt of the Orders dated 16.11.2018 and 27.02.2019 against the Petitioner – mother before the Family Court, since the mother had refused to return the custody of the child. The Family Court took cognizance of non-compliance of Orders by the Petitioner – mother, and vide Order dated 18.04.2019 directed the SHO, PS Rajouri Garden to locate the whereabouts of the minor daughter, and produce her before the Court. 18. The minor daughter was found at the residence of the Petitioner – mother, and was produced before the Family Court on 23.04.2019, when custody was handed over to the Respondent – father. 19. The Family Court vide Order dated 23.04.2019 suspended the visitation rights granted to the Petitioner – mother till the next date of hearing. 20. By a subsequent Order dated 03.05.2019, the Family Court held that further visitation to the Petitioner – mother can be allowed only in the Childrens Room, Tiz Hazari Complex, Delhi, where the mother could meet the child on every working 1 st , 3 rd and 4 th Saturday from 3 p.m. to 5 p.m., and on 2 nd Friday from 3:30 p.m. to 5 p.m. The father agreed that as per the convenience of the child, he would allow the mother to see the child at the school gate in the morning before school hours. This arrangement of visitation by the mother is continuing ever since. 21. The High Court vide the impugned Order dated 26.03.2019 dismissed the Appeal filed by the Petitioner – mother, and confirmed the Orders dated 28.07.2018 and 16.11.2018 passed by the Family Court. The High Court held that the three Counsellors Reports indicated that the child was comfortable in the company of the father, and wanted to live with him. The Court observed that the video clippings submitted by the Petitioner – mother do not prima facie support her allegation of sexual abuse by the father. The Order dated 26.03.2019 passed by the High Court is impugned by the Petitioner – mother in the present Special Leave Petition. 22. This Court took up the present SLP for hearing on 25.10.2019 when Notice was issued. The Petitioner – mother submitted a DVD containing some video clippings of the child. She placed on record some additional documents in support of her contention that the child was being allegedly molested by the Respondent – father. 23. On 05.12.2019, the Respondent – husband appeared before this Court in person along with his Counsel. We directed the Respondent - father to produce the child before this Court on 10.12.2019. 24. On 10.12.2019, both the parties and the minor daughter appeared before us. We individually interviewed both the parents and the child. Having interacted with the child, we are of the view that the minor girl is certainly capable of forming an intelligent preference regarding her custody. We found the girl who is over 12 years of age, and is studying in Class VII to be articulate, and unequivocal about her definite desire to reside with her father. She stated that she received love and affection from her father, who was taking care of her food, education, and would assist her in her school projects and activities. Reliance is placed on the judgment of this Court in Nil Ratan Kundu & Anr. v. Abhijit Kundu (2008) 9 SCC 413 : 2008 (11) SCALE 437 that while exercising parens patriae jurisdiction, the Court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favorable surroundings. The Court is not bound either by statutes, nor by strict rules of evidence, nor procedure or precedent. In deciding the issue of custody, the paramount consideration should be the welfare and well-being of the child.
### Response:
1
### Explanation:
24. On 10.12.2019, both the parties and the minor daughter appeared before us. We individually interviewed both the parents and the childHaving interacted with the child, we are of the view that the minor girl is certainly capable of forming an intelligent preference regarding her custodyWe found the girl who is over 12 years of age, and is studying in Class VII to be articulate, and unequivocal about her definite desire to reside with her father. She stated that she received love and affection from her father, who was taking care of her food, education, and would assist her in her school projects and activitiesReliance is placed on the judgment of this Court in Nil Ratan Kundu & Anr. v. Abhijit Kundu (2008) 9 SCC 413 : 2008 (11) SCALE 437 that while exercising parens patriae jurisdiction, the Court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favorable surroundings. The Court is not bound either by statutes, nor by strict rules of evidence, nor procedure or precedent. In deciding the issue of custody, the paramount consideration should be the welfare and well-being of the child.
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A.Tajudeen Vs. Union Of India | is any independent corroborative evidence to support the above statements.17. According to the learned counsel representing the appellant, there was an effective opportunity to the officers of the Enforcement Directorate to produce evidence with reference to a number of important facts, disclosed by the appellant while making the aforesaid statements, yet the officers of the Enforcement Directorate chose not to substantiate the same through independent evidence. He cited a few instances where such evidence could have been easily gathered by the officers of the Enforcement Directorate. In the absence of any corroboration whatsoever, it was submitted, that retracted statements made by the appellant – A. Tajudeen and his wife T. Sahira Banu, could not be used to record findings against the appellant.18. We have no doubt, that evidence could be gathered to substantiate that Abdul Hameed, the person who is alleged to have dispatched the money from Singapore, was a resident of Village Pudhumadam in District Ramanathapuram, to which the appellant also belongs. Material could also have been gathered to show, whether he was related to the appellant from his paternal side. Furthermore, the Enforcement Directorate could have easily substantiated whether or not, as asserted by the appellant, the aforesaid Abdul Hameed had contacted him over telephone from Singapore, to inform him about the delivery of the amount recovered from his residence on 25.10.1989. Additionally, the Enforcement Directorate could have led evidence to establish that the aforesaid Abdul Hameed with reference to whom the appellant made statements on 20.4.1989, 25.10.1989 and 26.10.1989, was actually resident of Singapore, and was running businesses there, at the location(s) indicated by the appellant. Still further, the officers of the Enforcement Directorate could have ascertained the truthfulness of the factual position from Shahib, the shop boy of the appellant – A. Tajudeen, whom he allegedly sent to hand over a sum of Rs. 60,000/- to Shahul Hameed (a relative of Abdul Hameed) of Village Pudhumadam. Had the statements of the appellant and his wife been corroborated by independent evidence of the nature indicated hereinabove, there could have been room for accepting the veracity of the statements made by the appellant – A. Tajudeen and his wife T. Sahira Banu to the officers of the Enforcement Directorate. Unfortunately, no effort was made by the Enforcement Directorate to gather any independent evidence to establish the veracity of the allegations levelled against the appellant, through the memorandum dated 12.3.1990. We are of the considered view, that the officers of the Enforcement Directorate were seriously negligent in gathering independent evidence of a corroborative nature. We have therefore no hesitation in concluding that the retracted statements made by the appellant and his wife could not constitute the exclusive basis to determine the culpability of the appellant.19. We shall now deal with the other independent evidence which was sought to be relied upon by the Enforcement Directorate to establish the charges levelled against the appellant. And based thereon, we shall determine whether the same is sufficient on its own, or in conjunction to the retracted statements referred to above, in deciding the present controversy, one way or the other. First and foremost, reliance was placed on “mahazar” executed (at the time of the recovery, from the residence of the appellant) on 25.10.1989. It would be pertinent to mention, that the appellant in his response to the memorandum dated 12.3.1990 had expressly refuted the authenticity of the “mahazar” executed on 25.10.1989. Merely because the “mahazar” was attested by two independent witnesses, namely, R.M. Subramanian and Hayad Basha, would not led credibility to the same. Such credibility would attach to the “mahazar” only if the said two independent witnesses were produced as witnesses, and the appellant was afforded an opportunity to cross-examine them. The aforesaid procedure was unfortunately not adopted in this case. But then, would the preparation of the “mahazar” and the factum of recovery of a sum of Rs. 8,24,900/- establish the guilt of the appellant, insofar as the violation of Section 9(1)(b) of the 1973 Act is concerned? In our considered view, even if the “mahazar” is accepted as valid and genuine, the same is wholly insufficient to establish, that the amount recovered from the residence of the appellant was dispatched by Abdul Hameed, a resident of Singapore, through a person who is not an authorised dealer in foreign exchange. Even, in response to the memorandum dated 12.3.1990, the appellant had acknowledged the recovery of Rs. 8,24,900/- from his residence, but that acknowledgment would not establish the violation of Section 9(1)(b) of the 1973 Act. In the above view of the matter, we are of the opinion that the execution of the “mahazar” on 25.10.1989, is inconsequential for the determination of the guilt of the appellant in this case.20. The only other independent evidence relied upon by the Enforcement Directorate is of pages from the Hindu and the Jansatha newspapers, in which the bundles of money were wrapped, when the recovery was effected on 25.10.1989. In view of the position expressed in the foregoing paragraph, we are satisfied that the charge against the appellant under Section 9(1)(b) of the 1973 Act, cannot be established on the basis of newspaper sheets, in which the money was wrapped. The newspaper sheets relied upon, would not establish that the amount recovered from the residence of the appellant – A. Tajudeen was dispatched by Abdul Hameed from Singapore, through a person who was not an authorized dealer.21. Based on the above determination, and the various conclusions recorded hereinabove, we are satisfied, that the impugned judgment passed by the High Court deserves to be set aside. The same is accordingly hereby set aside. Resultantly, the entire action taken by the Enforcement Directorate against the appellant in furtherance of the memorandum dated 12.3.1990, is also set aside. As a consequence of the above, the Enforcement Directorate is directed to forthwith refund the confiscated sum of Rs.8,24,900/-, to the appellant, as also, to return the amount of Rs.1,00,000/-, which was deposited by the appellant as penalty. 22. | 1[ds]we are of the view that the statements dated 25.10.1989 and 26.10.1989 can under no circumstances constitute the sole basis for recording the finding of guilt against the appellant. If findings could be returned by exclusively relying on such oral statements, such statements could easily be thrust upon the persons who were being proceeded against on account of their actions in conflict with the provisions of the 1973 Act. Such statements ought not to be readily believable, unless there is independent corroboration of certain material aspects of the said statements, through independent sources. The nature of the corroboration required, would depend on the facts of each case. In the present case, it is apparent that the appellant – A. Tajudeen and his wife T. Sahira Banu at the first opportunity resiled from the statements which are now sought to be relied upon by the Enforcement Directorate, to substantiate the charges leveled against the appellant. We shall now endeavour to examine whether there is any independent corroborative evidence to support the above statements.17. According to the learned counsel representing the appellant, there was an effective opportunity to the officers of the Enforcement Directorate to produce evidence with reference to a number of important facts, disclosed by the appellant while making the aforesaid statements, yet the officers of the Enforcement Directorate chose not to substantiate the same through independent evidence. He cited a few instances where such evidence could have been easily gathered by the officers of the Enforcement Directorate. In the absence of any corroboration whatsoever, it was submitted, that retracted statements made by the appellant – A. Tajudeen and his wife T. Sahira Banu, could not be used to record findings against the appellant.18. We have no doubt, that evidence could be gathered to substantiate that Abdul Hameed, the person who is alleged to have dispatched the money from Singapore, was a resident of Village Pudhumadam in District Ramanathapuram, to which the appellant also belongs. Material could also have been gathered to show, whether he was related to the appellant from his paternal side. Furthermore, the Enforcement Directorate could have easily substantiated whether or not, as asserted by the appellant, the aforesaid Abdul Hameed had contacted him over telephone from Singapore, to inform him about the delivery of the amount recovered from his residence on 25.10.1989. Additionally, the Enforcement Directorate could have led evidence to establish that the aforesaid Abdul Hameed with reference to whom the appellant made statements on 20.4.1989, 25.10.1989 and 26.10.1989, was actually resident of Singapore, and was running businesses there, at the location(s) indicated by the appellant. Still further, the officers of the Enforcement Directorate could have ascertained the truthfulness of the factual position from Shahib, the shop boy of the appellant – A. Tajudeen, whom he allegedly sent to hand over a sum of Rs. 60,000/- to Shahul Hameed (a relative of Abdul Hameed) of Village Pudhumadam. Had the statements of the appellant and his wife been corroborated by independent evidence of the nature indicated hereinabove, there could have been room for accepting the veracity of the statements made by the appellant – A. Tajudeen and his wife T. Sahira Banu to the officers of the Enforcement Directorate. Unfortunately, no effort was made by the Enforcement Directorate to gather any independent evidence to establish the veracity of the allegations levelled against the appellant, through the memorandum dated 12.3.1990. We are of the considered view, that the officers of the Enforcement Directorate were seriously negligent in gathering independent evidence of a corroborative nature. We have therefore no hesitation in concluding that the retracted statements made by the appellant and his wife could not constitute the exclusive basis to determine the culpability of the appellant.19. We shall now deal with the other independent evidence which was sought to be relied upon by the Enforcement Directorate to establish the charges levelled against the appellant. And based thereon, we shall determine whether the same is sufficient on its own, or in conjunction to the retracted statements referred to above, in deciding the present controversy, one way or the other. First and foremost, reliance was placed onexecuted (at the time of the recovery, from the residence of the appellant) on 25.10.1989. It would be pertinent to mention, that the appellant in his response to the memorandum dated 12.3.1990 had expressly refuted the authenticity of theexecuted on 25.10.1989. Merely because thewas attested by two independent witnesses, namely, R.M. Subramanian and Hayad Basha, would not led credibility to the same. Such credibility would attach to theonly if the said two independent witnesses were produced as witnesses, and the appellant was afforded an opportunity to cross-examine them. The aforesaid procedure was unfortunately not adopted in this case. But then, would the preparation of theand the factum of recovery of a sum of Rs. 8,24,900/- establish the guilt of the appellant, insofar as the violation of Section 9(1)(b) of the 1973 Act is concerned? In our considered view, even if theis accepted as valid and genuine, the same is wholly insufficient to establish, that the amount recovered from the residence of the appellant was dispatched by Abdul Hameed, a resident of Singapore, through a person who is not an authorised dealer in foreign exchange. Even, in response to the memorandum dated 12.3.1990, the appellant had acknowledged the recovery of Rs. 8,24,900/- from his residence, but that acknowledgment would not establish the violation of Section 9(1)(b) of the 1973 Act. In the above view of the matter, we are of the opinion that the execution of theon 25.10.1989, is inconsequential for the determination of the guilt of the appellant in this case.20. The only other independent evidence relied upon by the Enforcement Directorate is of pages from the Hindu and the Jansatha newspapers, in which the bundles of money were wrapped, when the recovery was effected on 25.10.1989. In view of the position expressed in the foregoing paragraph, we are satisfied that the charge against the appellant under Section 9(1)(b) of the 1973 Act, cannot be established on the basis of newspaper sheets, in which the money was wrapped. The newspaper sheets relied upon, would not establish that the amount recovered from the residence of the appellant – A. Tajudeen was dispatched by Abdul Hameed from Singapore, through a person who was not an authorized dealer.21. Based on the above determination, and the various conclusions recorded hereinabove, we are satisfied, that the impugned judgment passed by the High Court deserves to be set aside. The same is accordingly hereby set aside. Resultantly, the entire action taken by the Enforcement Directorate against the appellant in furtherance of the memorandum dated 12.3.1990, is also set aside. As a consequence of the above, the Enforcement Directorate is directed to forthwith refund the confiscated sum of Rs.8,24,900/-, to the appellant, as also, to return the amount of Rs.1,00,000/-, which was deposited by the appellant as penalty. | 1 | 8,375 | 1,290 | ### 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:
is any independent corroborative evidence to support the above statements.17. According to the learned counsel representing the appellant, there was an effective opportunity to the officers of the Enforcement Directorate to produce evidence with reference to a number of important facts, disclosed by the appellant while making the aforesaid statements, yet the officers of the Enforcement Directorate chose not to substantiate the same through independent evidence. He cited a few instances where such evidence could have been easily gathered by the officers of the Enforcement Directorate. In the absence of any corroboration whatsoever, it was submitted, that retracted statements made by the appellant – A. Tajudeen and his wife T. Sahira Banu, could not be used to record findings against the appellant.18. We have no doubt, that evidence could be gathered to substantiate that Abdul Hameed, the person who is alleged to have dispatched the money from Singapore, was a resident of Village Pudhumadam in District Ramanathapuram, to which the appellant also belongs. Material could also have been gathered to show, whether he was related to the appellant from his paternal side. Furthermore, the Enforcement Directorate could have easily substantiated whether or not, as asserted by the appellant, the aforesaid Abdul Hameed had contacted him over telephone from Singapore, to inform him about the delivery of the amount recovered from his residence on 25.10.1989. Additionally, the Enforcement Directorate could have led evidence to establish that the aforesaid Abdul Hameed with reference to whom the appellant made statements on 20.4.1989, 25.10.1989 and 26.10.1989, was actually resident of Singapore, and was running businesses there, at the location(s) indicated by the appellant. Still further, the officers of the Enforcement Directorate could have ascertained the truthfulness of the factual position from Shahib, the shop boy of the appellant – A. Tajudeen, whom he allegedly sent to hand over a sum of Rs. 60,000/- to Shahul Hameed (a relative of Abdul Hameed) of Village Pudhumadam. Had the statements of the appellant and his wife been corroborated by independent evidence of the nature indicated hereinabove, there could have been room for accepting the veracity of the statements made by the appellant – A. Tajudeen and his wife T. Sahira Banu to the officers of the Enforcement Directorate. Unfortunately, no effort was made by the Enforcement Directorate to gather any independent evidence to establish the veracity of the allegations levelled against the appellant, through the memorandum dated 12.3.1990. We are of the considered view, that the officers of the Enforcement Directorate were seriously negligent in gathering independent evidence of a corroborative nature. We have therefore no hesitation in concluding that the retracted statements made by the appellant and his wife could not constitute the exclusive basis to determine the culpability of the appellant.19. We shall now deal with the other independent evidence which was sought to be relied upon by the Enforcement Directorate to establish the charges levelled against the appellant. And based thereon, we shall determine whether the same is sufficient on its own, or in conjunction to the retracted statements referred to above, in deciding the present controversy, one way or the other. First and foremost, reliance was placed on “mahazar” executed (at the time of the recovery, from the residence of the appellant) on 25.10.1989. It would be pertinent to mention, that the appellant in his response to the memorandum dated 12.3.1990 had expressly refuted the authenticity of the “mahazar” executed on 25.10.1989. Merely because the “mahazar” was attested by two independent witnesses, namely, R.M. Subramanian and Hayad Basha, would not led credibility to the same. Such credibility would attach to the “mahazar” only if the said two independent witnesses were produced as witnesses, and the appellant was afforded an opportunity to cross-examine them. The aforesaid procedure was unfortunately not adopted in this case. But then, would the preparation of the “mahazar” and the factum of recovery of a sum of Rs. 8,24,900/- establish the guilt of the appellant, insofar as the violation of Section 9(1)(b) of the 1973 Act is concerned? In our considered view, even if the “mahazar” is accepted as valid and genuine, the same is wholly insufficient to establish, that the amount recovered from the residence of the appellant was dispatched by Abdul Hameed, a resident of Singapore, through a person who is not an authorised dealer in foreign exchange. Even, in response to the memorandum dated 12.3.1990, the appellant had acknowledged the recovery of Rs. 8,24,900/- from his residence, but that acknowledgment would not establish the violation of Section 9(1)(b) of the 1973 Act. In the above view of the matter, we are of the opinion that the execution of the “mahazar” on 25.10.1989, is inconsequential for the determination of the guilt of the appellant in this case.20. The only other independent evidence relied upon by the Enforcement Directorate is of pages from the Hindu and the Jansatha newspapers, in which the bundles of money were wrapped, when the recovery was effected on 25.10.1989. In view of the position expressed in the foregoing paragraph, we are satisfied that the charge against the appellant under Section 9(1)(b) of the 1973 Act, cannot be established on the basis of newspaper sheets, in which the money was wrapped. The newspaper sheets relied upon, would not establish that the amount recovered from the residence of the appellant – A. Tajudeen was dispatched by Abdul Hameed from Singapore, through a person who was not an authorized dealer.21. Based on the above determination, and the various conclusions recorded hereinabove, we are satisfied, that the impugned judgment passed by the High Court deserves to be set aside. The same is accordingly hereby set aside. Resultantly, the entire action taken by the Enforcement Directorate against the appellant in furtherance of the memorandum dated 12.3.1990, is also set aside. As a consequence of the above, the Enforcement Directorate is directed to forthwith refund the confiscated sum of Rs.8,24,900/-, to the appellant, as also, to return the amount of Rs.1,00,000/-, which was deposited by the appellant as penalty. 22.
### Response:
1
### Explanation:
substantiate the charges leveled against the appellant. We shall now endeavour to examine whether there is any independent corroborative evidence to support the above statements.17. According to the learned counsel representing the appellant, there was an effective opportunity to the officers of the Enforcement Directorate to produce evidence with reference to a number of important facts, disclosed by the appellant while making the aforesaid statements, yet the officers of the Enforcement Directorate chose not to substantiate the same through independent evidence. He cited a few instances where such evidence could have been easily gathered by the officers of the Enforcement Directorate. In the absence of any corroboration whatsoever, it was submitted, that retracted statements made by the appellant – A. Tajudeen and his wife T. Sahira Banu, could not be used to record findings against the appellant.18. We have no doubt, that evidence could be gathered to substantiate that Abdul Hameed, the person who is alleged to have dispatched the money from Singapore, was a resident of Village Pudhumadam in District Ramanathapuram, to which the appellant also belongs. Material could also have been gathered to show, whether he was related to the appellant from his paternal side. Furthermore, the Enforcement Directorate could have easily substantiated whether or not, as asserted by the appellant, the aforesaid Abdul Hameed had contacted him over telephone from Singapore, to inform him about the delivery of the amount recovered from his residence on 25.10.1989. Additionally, the Enforcement Directorate could have led evidence to establish that the aforesaid Abdul Hameed with reference to whom the appellant made statements on 20.4.1989, 25.10.1989 and 26.10.1989, was actually resident of Singapore, and was running businesses there, at the location(s) indicated by the appellant. Still further, the officers of the Enforcement Directorate could have ascertained the truthfulness of the factual position from Shahib, the shop boy of the appellant – A. Tajudeen, whom he allegedly sent to hand over a sum of Rs. 60,000/- to Shahul Hameed (a relative of Abdul Hameed) of Village Pudhumadam. Had the statements of the appellant and his wife been corroborated by independent evidence of the nature indicated hereinabove, there could have been room for accepting the veracity of the statements made by the appellant – A. Tajudeen and his wife T. Sahira Banu to the officers of the Enforcement Directorate. Unfortunately, no effort was made by the Enforcement Directorate to gather any independent evidence to establish the veracity of the allegations levelled against the appellant, through the memorandum dated 12.3.1990. We are of the considered view, that the officers of the Enforcement Directorate were seriously negligent in gathering independent evidence of a corroborative nature. We have therefore no hesitation in concluding that the retracted statements made by the appellant and his wife could not constitute the exclusive basis to determine the culpability of the appellant.19. We shall now deal with the other independent evidence which was sought to be relied upon by the Enforcement Directorate to establish the charges levelled against the appellant. And based thereon, we shall determine whether the same is sufficient on its own, or in conjunction to the retracted statements referred to above, in deciding the present controversy, one way or the other. First and foremost, reliance was placed onexecuted (at the time of the recovery, from the residence of the appellant) on 25.10.1989. It would be pertinent to mention, that the appellant in his response to the memorandum dated 12.3.1990 had expressly refuted the authenticity of theexecuted on 25.10.1989. Merely because thewas attested by two independent witnesses, namely, R.M. Subramanian and Hayad Basha, would not led credibility to the same. Such credibility would attach to theonly if the said two independent witnesses were produced as witnesses, and the appellant was afforded an opportunity to cross-examine them. The aforesaid procedure was unfortunately not adopted in this case. But then, would the preparation of theand the factum of recovery of a sum of Rs. 8,24,900/- establish the guilt of the appellant, insofar as the violation of Section 9(1)(b) of the 1973 Act is concerned? In our considered view, even if theis accepted as valid and genuine, the same is wholly insufficient to establish, that the amount recovered from the residence of the appellant was dispatched by Abdul Hameed, a resident of Singapore, through a person who is not an authorised dealer in foreign exchange. Even, in response to the memorandum dated 12.3.1990, the appellant had acknowledged the recovery of Rs. 8,24,900/- from his residence, but that acknowledgment would not establish the violation of Section 9(1)(b) of the 1973 Act. In the above view of the matter, we are of the opinion that the execution of theon 25.10.1989, is inconsequential for the determination of the guilt of the appellant in this case.20. The only other independent evidence relied upon by the Enforcement Directorate is of pages from the Hindu and the Jansatha newspapers, in which the bundles of money were wrapped, when the recovery was effected on 25.10.1989. In view of the position expressed in the foregoing paragraph, we are satisfied that the charge against the appellant under Section 9(1)(b) of the 1973 Act, cannot be established on the basis of newspaper sheets, in which the money was wrapped. The newspaper sheets relied upon, would not establish that the amount recovered from the residence of the appellant – A. Tajudeen was dispatched by Abdul Hameed from Singapore, through a person who was not an authorized dealer.21. Based on the above determination, and the various conclusions recorded hereinabove, we are satisfied, that the impugned judgment passed by the High Court deserves to be set aside. The same is accordingly hereby set aside. Resultantly, the entire action taken by the Enforcement Directorate against the appellant in furtherance of the memorandum dated 12.3.1990, is also set aside. As a consequence of the above, the Enforcement Directorate is directed to forthwith refund the confiscated sum of Rs.8,24,900/-, to the appellant, as also, to return the amount of Rs.1,00,000/-, which was deposited by the appellant as penalty.
|
Bai Dosabai Vs. Mathurdas Govinddas and Others | mortgage, gift, lease or otherwise until he has furnished a statement as prescribed by the Act and a notification has been published after the prescribed procedure has been gone through. The Act came into force subsequent to the passing of the decree by the High Court. The question for our consideration is what is the effect of the Urban Land (Ceiling &Regulation) Act, 1976 on the decree passed by the High Court. While it is true that events and changes in the law occurring during the pendency of an appeal require to be taken into consideration in order to do complete justice between parties and so that a futile decree may not be passed. It is also right and necessary that the decree should be so moulded as to accord with the changed statutory situation. The right obtained by a party under a decree cannot be allowed to be defeated by delay in the disposal of the appeal against the decree, if it is possible to save the decree by moulding it to conform to the statutes subsequently coming into force. These propositions emerge from the decisions of the Court in Pasupulti Venkateswarlu v. The Motor &General Traders, and Rameshwar &Ors. v. Jot Ram &Ors. The question, therefore, is how the decree passed by the High Court can be saved and given effect. S.21 of the Urban Land (Ceiling &Regulation) Act, 1976, provides that where a person holds any vacant land in excess of the ceiling limit and such person declares within the prescribed time and in the prescribed manner before the competent authority that the land is to be utilised for the construction of dwelling units, for the accommodation of the weaker section of the society in accordance with any scheme approved by the specified authority, then the competent authority may after due enquiry declare such land not to be excess land and permit such person to continue to hold the land for the said purpose subject to the prescribed terms and conditions. The Government of Gujarat by various orders has prescribed the terms and conditions subject to which exemption will be granted under s. 21. The last circular dated October 25, 1979 of the Government also specifies that the value of the land for the purpose of s. 21 and the scheme should not exceed Rs. 50 per square meter. The last date for submitting a scheme under the rules made by the Government of Gujarat was January 31, 1980. Realising that all would be lost and none would be the gainer if no scheme was submitted before January 31, 1980, the respondent filed Civil Miscellaneous Petition No. 18 3 of 1980 for the appointment of a Receiver of the suit land "with power to apply for seeking exemption from the operation of the said Act under section 20 and/or 21 of the Act, by taking help of an organiser and/or builder to build residential premises for weaker sections of the Society, and/or by joining with the Co-operative Society in applying for an exemption under the said Act, and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a cooperative Society and in the process realize price of suit land at a price not lesser then Rs. 50/- per meter and to invest the same when realized at prevailing Bank rate, in Fixed Deposit, in a Nationalised Bank". By our order dated January 18, 1980, we appointed Shri R.L. Dave, Additional Registrar of the Gujarat High Court as Receiver and charged him with the duty of submitting a building scheme and other necessary documents to the Competent authority under s. 21 of the Urban Land (Ceiling and Regulation) Act, before January 31, 1980. He was directed to do so in consultation with the parties or their counsel. The order was made without prejudice to the application said to have been made by the appellant under s. 20 of the Act. As directed by us the Receiver submitted a scheme to the Competent authority. He also entered into an agreement with a builder as the scheme would not be otherwise received by the Competent authority. Various objections have been filed before us by the defendant and some other parties. We do not desire to adjudicate upon the objections raised by the plaintiff and other parties. We, however, affirm the action taken by the Receiver in submitting a scheme to the Competent authority. All further directions in this matter may be obtained from the Trial Court to whom all the relevant records will be forwarded. We think that the decree of the High Court should be modified in the following manner in order to bring it in conformity with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. In the place of the direction to the lessor to sell the land by public auction or by private treaty and to reimburse himself from the sale price the sum of Rs. 96833-10-0 with interest at 9 per cent from January 23, 1953 and the balance to be equally divided between the lessor and the lessee, a direction will issue for the appointment of a Receiver to take all necessary steps to seek exemption from the operation of the Act, under s. 20 and/or s. 21 of the Act by taking the help of an organiser and/or builder to build residential premises for weaker section of the Society, and/or by joining with the co-operative Society in applying for an exemption under the said Act and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a Cooperative Society and in the process realize price of suit land at a price not lesser than Rs. 50 per meter and to invest the same when realised at prevailing Bank rate, in fixed Deposit, in a Nationalised Bank. | 0[ds]We do not wish to go in any detail into the question whether the English Equitable doctrine of conversion of reality into personality is applicable in India. However, we do wish to say that the Enghish doctrine of conversion of reality into personality cannot be bodily lifted from its native English soil and transplanted in statute-bound Indian law. But, we have to notice that many of the principles of English Equity have taken statutory form in India and have been incorporated in occasional provisions of various Indian statutes such as the Indian Trusts Act, the Specific Relief Act, Transfer of Property Act etc. and where a question of interpretation of such Equity based statutory provisions arises we will be well justified in seeking aid from the Equity source. The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey immovable property, as understood in England is alien to Indian Law which recognises one owner i.e. the legal owner: vide, Ramboran Prasad v. Ram Mohit Hazra &Ors. and Narandas Karsondas v. S. A. Kamtam &Anr. The ultimate paragraph of s. 54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. But the ultimate and penultimate paragraphs of s. 40 of the Transfer of Property Act make it clear that such a contract creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice or the contract or a gratuitous transferee of the property. Thus the Equitable ownership in property recognised by Equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be enforced against a transferee with notice or a gratuitousf we now turn to the Indian Trusts Act, we find "trust" defined as "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner",and "beneficial interest" defined as the interest of the beneficiary against the trustee as owner of the trust- property. Chapter IX of the Trusts Act enumerates in section after section cases where obligations in the nature of trust are createdIt is obvious from the very nature and the terms of the contract and the facts and circumstances of the case that compensation or damages is not determinable. In fact the defendant, apart from not raising an appropriate plea, did not offer any evidence to prove what would be suitable compensationAs already observed by us the defendant had the option to purchase the property if he so desired but he was under no obligation to do so. The contract itself provided for the eventuality of the defendant ultimately not desiring to purchase the property himself. It cannot, therefore, be said that the defendant committed any default in not paying the balance of the purchase price and taking a deed of sale in his own favour. Regarding resistance to delivery of possession, it is true that he claimed the benefits given to a tenant under the Bombay Tenancy and Agricultural Land Act and resisted giving possession to the plaintiff. If under a bonafide mistaken belief that the statute had stepped in to give him higher rights than under the contract the defendant refused to deliver possession to the plaintiff until it was found by the Court that he had no such higher rights, the defendant cannot later be denied even the rights under the contract on the ground that he had claimed higher statutory rights. We do not subscribe to the proposition that a person claiming the benefits of a beneficient social legislation should be denied his contractual rights if he is found not to be entitled to the legislativet was said that the contract became void so soon as the Bombay Tenancy and Agricultural Lands Act, became applicable to the suit lands and that it could not be revived after the act ceased to apply to the suit lands .We do not see any force in this submission either. The plaintiff-respondent became entitled to demand that the property should be sold by public auction only when the defendant-appellant obtained possession and since on the date when the defendant obtained possession of the property the Act was not applicable to the lands in question, we see no impediment in the plaintiff seeking to enforce the contract. Similarly the Gujarat Vacant Lands in Urban Areas (Prohibition of Alienations) Act, 197 2, was in force for a limited period of one year only. While it prohibited alienation of land during that Period it did not render the contract which was earlier in point of time void so as to render it incapable of being performed after the Ac t itself expiredWhile it is true that events and changes in the law occurring during the pendency of an appeal require to be taken into consideration in order to do complete justice between parties and so that a futile decree may not be passed. It is also right and necessary that the decree should be so moulded as to accord with the changed statutory situation. The right obtained by a party under a decree cannot be allowed to be defeated by delay in the disposal of the appeal against the decree, if it is possible to save the decree by moulding it to conform to the statutes subsequently coming into forceS.21 of the Urban Land (Ceiling &Regulation) Act, 1976, provides that where a person holds any vacant land in excess of the ceiling limit and such person declares within the prescribed time and in the prescribed manner before the competent authority that the land is to be utilised for the construction of dwelling units, for the accommodation of the weaker section of the society in accordance with any scheme approved by the specified authority, then the competent authority may after due enquiry declare such land not to be excess land and permit such person to continue to hold the land for the said purpose subject to the prescribed terms and conditions. The Government of Gujarat by various orders has prescribed the terms and conditions subject to which exemption will be granted under s. 21. The last circular dated October 25, 1979 of the Government also specifies that the value of the land for the purpose of s. 21 and the scheme should not exceed Rs. 50 per square meter. The last date for submitting a scheme under the rules made by the Government of Gujarat was January 31, 1980. Realising that all would be lost and none would be the gainer if no scheme was submitted before January 31, 1980, the respondent filed Civil Miscellaneous Petition No. 18 3 of 1980 for the appointment of a Receiver of the suit land "with power to apply for seeking exemption from the operation of the said Act under section 20 and/or 21 of the Act, by taking help of an organiser and/or builder to build residential premises for weaker sections of the Society, and/or by joining with the Co-operative Society in applying for an exemption under the said Act, and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a cooperative Society and in the process realize price of suit land at a price not lesser then Rs. 50/- per meter and to invest the same when realized at prevailing Bank rate, in Fixed Deposit, in a Nationalised Bank". By our order dated January 18, 1980, we appointed Shri R.L. Dave, Additional Registrar of the Gujarat High Court as Receiver and charged him with the duty of submitting a building scheme and other necessary documents to the Competent authority under s. 21 of the Urban Land (Ceiling and Regulation) Act, before January 31, 1980. He was directed to do so in consultation with the parties or their counsel. The order was made without prejudice to the application said to have been made by the appellant under s. 20 of the Act. As directed by us the Receiver submitted a scheme to the Competent authority. He also entered into an agreement with a builder as the scheme would not be otherwise received by the Competent authority. Various objections have been filed before us by the defendant and some other parties. We do not desire to adjudicate upon the objections raised by the plaintiff and other parties. We, however, affirm the action taken by the Receiver in submitting a scheme to the Competent authority. All further directions in this matter may be obtained from the Trial Court to whom all the relevant records will be forwarded. We think that the decree of the High Court should be modified in the following manner in order to bring it in conformity with the provisions ofthe Urban Land (Ceiling and Regulation) Act, 1976. In the place of the direction to the lessor to sell the land by public auction or by private treaty and to reimburse himself from the sale price the sum of Rs. 96833-10-0 with interest at 9 per cent from January 23, 1953 and the balance to be equally divided between the lessor and the lessee, a direction will issue for the appointment of a Receiver to take all necessary steps to seek exemption from the operation of the Act, under s. 20 and/or s. 21 of the Act by taking the help of an organiser and/or builder to build residential premises for weaker section of the Society, and/or by joining with the co-operative Society in applying for an exemption under the said Act and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a Cooperative Society and in the process realize price of suit land at a price not lesser than Rs. 50 per meter and to invest the same when realised at prevailing Bank rate, in fixed Deposit, in a Nationalised Bank. The Receiver appointed by us in C.M.P. No. 183 of 1980 will continue to act as Receiver under the decree. Out of the sum realised after deducting the expenses involved, a sum of Rs. 96833-10-0 together with interest at 9 percent per annum from January 23, 1953 upto the date of payment, will be paid in the first instance to the defendant and the balance will be divided equally between the plaintiff and the defendant.It is obvious from the very nature and the terms of the contract and the facts and circumstances of the case that compensation or damages is not determinable. In fact the defendant, apart from not raising an appropriate plea, did not offer any evidence to prove what would be suitable compensationWe find no force in these submissions.We do not see any force in this submission either. Thet became entitled to demand that the property should be sold by public auction only when thet obtained possession and since on the date when the defendant obtained possession of the property the Act was not applicable to the lands in question, we see no impediment in the plaintiff seeking to enforce the contract. Similarly the Gujarat Vacant Lands in Urban Areas (Prohibition of Alienations) Act, 197 2, was in force for a limited period of one year only. While it prohibited alienation of land during that Period it did not render the contract which was earlier in point of time void so as to render it incapable of being performed after the Ac t itself expiredIt is true that s. 5(3) of the Act prohibits every person holding vacant land in excess of the ceiling limit before the commencement of the Act from transferring such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement as prescribed by the Act and a notification has been published after the prescribed procedure has been gone through. The Act came into force subsequent to the passing of the decree by the High CourtWhile it is true that events and changes in the law occurring during the pendency of an appeal require to be taken into consideration in order to do complete justice between parties and so that a futile decree may not be passed. It is also right and necessary that the decree should be so moulded as to accord with the changed statutory situation. The right obtained by a party under a decree cannot be allowed to be defeated by delay in the disposal of the appeal against the decree, if it is possible to save the decree by moulding it to conform to the statutes subsequently coming into. These propositions emerge from the decisions of the Court in Pasupulti Venkateswarlu v. The Motor &General Traders, and Rameshwar &Ors. v. Jot Ram &Ors.The question, therefore, is how the decree passed by the High Court can be saved and given1 of the Urban Land (Ceiling &Regulation) Act, 1976, provides that where a person holds any vacant land in excess of the ceiling limit and such person declares within the prescribed time and in the prescribed manner before the competent authority that the land is to be utilised for the construction of dwelling units, for the accommodation of the weaker section of the society in accordance with any scheme approved by the specified authority, then the competent authority may after due enquiry declare such land not to be excess land and permit such person to continue to hold the land for the said purpose subject to the prescribed terms and conditions. The Government of Gujarat by various orders has prescribed the terms and conditions subject to which exemption will be granted under s. 21. The last circular dated October 25, 1979 of the Government also specifies that the value of the land for the purpose of s. 21 and the scheme should not exceed Rs. 50 per square meter. The last date for submitting a scheme under the rules made by the Government of Gujarat was January 31, 1980. Realising that all would be lost and none would be the gainer if no scheme was submitted before January 31, 1980, the respondent filed Civil Miscellaneous Petition No. 18 3 of 1980 for the appointment of a Receiver of the suit land "with power to apply for seeking exemption from the operation of the said Act under section 20 and/or 21 of the Act, by taking help of an organiser and/or builder to build residential premises for weaker sections of the Society, and/or by joining with theCooperative Societyin applying for an exemption under the said Act, and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a cooperative Society and in the process realize price of suit land at a price not lesser then Rs. 50/per meter and to invest the same when realized at prevailing Bank rate, in Fixed Deposit, in a Nationalised Bank". By our order dated January 18, 1980, we appointed Shri R.L. Dave, Additional Registrar of the Gujarat High Court as Receiver and charged him with the duty of submitting a building scheme and other necessary documents to the Competent authority under s. 21 of the Urban Land (Ceiling and Regulation) Act, before January 31, 1980. He was directed to do so in consultation with the parties or their counsel. The order was made without prejudice to the application said to have been made by the appellant under s. 20 of the Act. As directed by us the Receiver submitted a scheme to the Competent authority. He also entered into an agreement with a builder as the scheme would not be otherwise received by the Competent authority. Various objections have been filed before us by the defendant and some other parties. We do not desire to adjudicate upon the objections raised by the plaintiff and other parties. We, however, affirm the action taken by the Receiver in submitting a scheme to the Competent authority. All further directions in this matter may be obtained from the Trial Court to whom all the relevant records will be forwarded. We think that the decree of the High Court should be modified in the following manner in order to bring it in conformity with the provisions ofthe Urban Land (Ceiling and Regulation) Act, 1976. In the place of the direction to the lessor to sell the land by public auction or by private treaty and to reimburse himself from the sale price the sum of Rs.0 with interest at 9 per cent from January 23, 1953 and the balance to be equally divided between the lessor and the lessee, a direction will issue for the appointment of a Receiver to take all necessary steps to seek exemption from the operation of the Act, under s. 20 and/or s. 21 of the Act by taking the help of an organiser and/or builder to build residential premises for weaker section of the Society, and/or by joining with thecooperative Societyin applying for an exemption under the said Act and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to aCooperative Societyand in the process realize price of suit land at a price not lesser than Rs. 50 per meter and to invest the same when realised at prevailing Bank rate, in fixed Deposit, in a Nationalised Bank. | 0 | 5,469 | 3,218 | ### 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:
mortgage, gift, lease or otherwise until he has furnished a statement as prescribed by the Act and a notification has been published after the prescribed procedure has been gone through. The Act came into force subsequent to the passing of the decree by the High Court. The question for our consideration is what is the effect of the Urban Land (Ceiling &Regulation) Act, 1976 on the decree passed by the High Court. While it is true that events and changes in the law occurring during the pendency of an appeal require to be taken into consideration in order to do complete justice between parties and so that a futile decree may not be passed. It is also right and necessary that the decree should be so moulded as to accord with the changed statutory situation. The right obtained by a party under a decree cannot be allowed to be defeated by delay in the disposal of the appeal against the decree, if it is possible to save the decree by moulding it to conform to the statutes subsequently coming into force. These propositions emerge from the decisions of the Court in Pasupulti Venkateswarlu v. The Motor &General Traders, and Rameshwar &Ors. v. Jot Ram &Ors. The question, therefore, is how the decree passed by the High Court can be saved and given effect. S.21 of the Urban Land (Ceiling &Regulation) Act, 1976, provides that where a person holds any vacant land in excess of the ceiling limit and such person declares within the prescribed time and in the prescribed manner before the competent authority that the land is to be utilised for the construction of dwelling units, for the accommodation of the weaker section of the society in accordance with any scheme approved by the specified authority, then the competent authority may after due enquiry declare such land not to be excess land and permit such person to continue to hold the land for the said purpose subject to the prescribed terms and conditions. The Government of Gujarat by various orders has prescribed the terms and conditions subject to which exemption will be granted under s. 21. The last circular dated October 25, 1979 of the Government also specifies that the value of the land for the purpose of s. 21 and the scheme should not exceed Rs. 50 per square meter. The last date for submitting a scheme under the rules made by the Government of Gujarat was January 31, 1980. Realising that all would be lost and none would be the gainer if no scheme was submitted before January 31, 1980, the respondent filed Civil Miscellaneous Petition No. 18 3 of 1980 for the appointment of a Receiver of the suit land "with power to apply for seeking exemption from the operation of the said Act under section 20 and/or 21 of the Act, by taking help of an organiser and/or builder to build residential premises for weaker sections of the Society, and/or by joining with the Co-operative Society in applying for an exemption under the said Act, and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a cooperative Society and in the process realize price of suit land at a price not lesser then Rs. 50/- per meter and to invest the same when realized at prevailing Bank rate, in Fixed Deposit, in a Nationalised Bank". By our order dated January 18, 1980, we appointed Shri R.L. Dave, Additional Registrar of the Gujarat High Court as Receiver and charged him with the duty of submitting a building scheme and other necessary documents to the Competent authority under s. 21 of the Urban Land (Ceiling and Regulation) Act, before January 31, 1980. He was directed to do so in consultation with the parties or their counsel. The order was made without prejudice to the application said to have been made by the appellant under s. 20 of the Act. As directed by us the Receiver submitted a scheme to the Competent authority. He also entered into an agreement with a builder as the scheme would not be otherwise received by the Competent authority. Various objections have been filed before us by the defendant and some other parties. We do not desire to adjudicate upon the objections raised by the plaintiff and other parties. We, however, affirm the action taken by the Receiver in submitting a scheme to the Competent authority. All further directions in this matter may be obtained from the Trial Court to whom all the relevant records will be forwarded. We think that the decree of the High Court should be modified in the following manner in order to bring it in conformity with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. In the place of the direction to the lessor to sell the land by public auction or by private treaty and to reimburse himself from the sale price the sum of Rs. 96833-10-0 with interest at 9 per cent from January 23, 1953 and the balance to be equally divided between the lessor and the lessee, a direction will issue for the appointment of a Receiver to take all necessary steps to seek exemption from the operation of the Act, under s. 20 and/or s. 21 of the Act by taking the help of an organiser and/or builder to build residential premises for weaker section of the Society, and/or by joining with the co-operative Society in applying for an exemption under the said Act and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a Cooperative Society and in the process realize price of suit land at a price not lesser than Rs. 50 per meter and to invest the same when realised at prevailing Bank rate, in fixed Deposit, in a Nationalised Bank.
### Response:
0
### Explanation:
t itself expiredIt is true that s. 5(3) of the Act prohibits every person holding vacant land in excess of the ceiling limit before the commencement of the Act from transferring such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement as prescribed by the Act and a notification has been published after the prescribed procedure has been gone through. The Act came into force subsequent to the passing of the decree by the High CourtWhile it is true that events and changes in the law occurring during the pendency of an appeal require to be taken into consideration in order to do complete justice between parties and so that a futile decree may not be passed. It is also right and necessary that the decree should be so moulded as to accord with the changed statutory situation. The right obtained by a party under a decree cannot be allowed to be defeated by delay in the disposal of the appeal against the decree, if it is possible to save the decree by moulding it to conform to the statutes subsequently coming into. These propositions emerge from the decisions of the Court in Pasupulti Venkateswarlu v. The Motor &General Traders, and Rameshwar &Ors. v. Jot Ram &Ors.The question, therefore, is how the decree passed by the High Court can be saved and given1 of the Urban Land (Ceiling &Regulation) Act, 1976, provides that where a person holds any vacant land in excess of the ceiling limit and such person declares within the prescribed time and in the prescribed manner before the competent authority that the land is to be utilised for the construction of dwelling units, for the accommodation of the weaker section of the society in accordance with any scheme approved by the specified authority, then the competent authority may after due enquiry declare such land not to be excess land and permit such person to continue to hold the land for the said purpose subject to the prescribed terms and conditions. The Government of Gujarat by various orders has prescribed the terms and conditions subject to which exemption will be granted under s. 21. The last circular dated October 25, 1979 of the Government also specifies that the value of the land for the purpose of s. 21 and the scheme should not exceed Rs. 50 per square meter. The last date for submitting a scheme under the rules made by the Government of Gujarat was January 31, 1980. Realising that all would be lost and none would be the gainer if no scheme was submitted before January 31, 1980, the respondent filed Civil Miscellaneous Petition No. 18 3 of 1980 for the appointment of a Receiver of the suit land "with power to apply for seeking exemption from the operation of the said Act under section 20 and/or 21 of the Act, by taking help of an organiser and/or builder to build residential premises for weaker sections of the Society, and/or by joining with theCooperative Societyin applying for an exemption under the said Act, and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a cooperative Society and in the process realize price of suit land at a price not lesser then Rs. 50/per meter and to invest the same when realized at prevailing Bank rate, in Fixed Deposit, in a Nationalised Bank". By our order dated January 18, 1980, we appointed Shri R.L. Dave, Additional Registrar of the Gujarat High Court as Receiver and charged him with the duty of submitting a building scheme and other necessary documents to the Competent authority under s. 21 of the Urban Land (Ceiling and Regulation) Act, before January 31, 1980. He was directed to do so in consultation with the parties or their counsel. The order was made without prejudice to the application said to have been made by the appellant under s. 20 of the Act. As directed by us the Receiver submitted a scheme to the Competent authority. He also entered into an agreement with a builder as the scheme would not be otherwise received by the Competent authority. Various objections have been filed before us by the defendant and some other parties. We do not desire to adjudicate upon the objections raised by the plaintiff and other parties. We, however, affirm the action taken by the Receiver in submitting a scheme to the Competent authority. All further directions in this matter may be obtained from the Trial Court to whom all the relevant records will be forwarded. We think that the decree of the High Court should be modified in the following manner in order to bring it in conformity with the provisions ofthe Urban Land (Ceiling and Regulation) Act, 1976. In the place of the direction to the lessor to sell the land by public auction or by private treaty and to reimburse himself from the sale price the sum of Rs.0 with interest at 9 per cent from January 23, 1953 and the balance to be equally divided between the lessor and the lessee, a direction will issue for the appointment of a Receiver to take all necessary steps to seek exemption from the operation of the Act, under s. 20 and/or s. 21 of the Act by taking the help of an organiser and/or builder to build residential premises for weaker section of the Society, and/or by joining with thecooperative Societyin applying for an exemption under the said Act and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to aCooperative Societyand in the process realize price of suit land at a price not lesser than Rs. 50 per meter and to invest the same when realised at prevailing Bank rate, in fixed Deposit, in a Nationalised Bank.
|
S.V.L.Murthy Vs. State Rep.By Cbi,Hyderabad | was on leave at the instance of Accused No.1. He must have developed grievance against the Accused No.4 as regards the stoppage of the said facility. If immediately thereafter the said facility had been restored by the Accused No. 4, a stand taken by him that it was done under the oral instructions of the higher authorities appears to be plausible.22. The prosecution apart from the fact that it had utterly failed to bring on record any evidence of conspiracy must also be held to have failed to bring on record any evidence of wrongful gain so as to attract the provisions of the Prevention of Corruption Act, 1988 or otherwise.23. The entire argument of Mr. B. Datta, learned Additional Solicitor General as also the findings arrived at by the learned Special Judge as also the High Court proved the ingredients of offence under Section 409 of the IPC. The accused persons, however, have not been charged for commission of the said offence. Conspiracy by and between the Bank officials and the Accused Nos. 1 to 3 has been stated to be for commission of the offence of cheating for the purpose of arriving at a finding that there has been a conspiracy so as to cheat the Bank. It was necessary for the prosecution to establish that there had been a meeting of mind at the time when the facility had been granted. Such meeting of mind on the part of the accused persons has not been proved. Furthermore, the prosecution case even if given face value and taken to be correct in its entirety does not lead to a finding that even Accused Nos. 1 to 3 had any wrongful intention at the time when the contract was initiated.24. We do not mean to suggest that in the matter of operating the account, no offence might have been committed by them. The offence, if any, it will be bear repetition to state, was committed under Section 409 of the IPC.25. The learned Special Judge as also the High court unfortunately proceeded on the basis that the cheque discounting facility could under no circumstances be made available to them.26. We do not think that, that was a correct approach. The RBI guidelines categorically show that it was not a wrong practice. It is one thing to say that there has been an abuse of a prevalent banking practice for the purpose of causing wrongful loss to the Bank and causing wrongful gain to others but it is another thing to say that by reason thereof, the ingredients of cheating are attracted.27. We have noticed hereinbefore that learned Additional Solicitor General merely took us through the judgment of the learned Special Judge as also the High court. His entire contention revolved around the commission of criminal breach of trust. Unfortunately, they have not been charged therewith. It would bear repetition to state that accused persons have not been charged under Section 409 of the IPC; even the Accused Nos. 1 to 3 have not been charged for entering into a conspiracy with Accused Nos. 4, 5 and 6 in respect of commission of offences under the Prevention of Corruption Act.28. It is in the aforementioned situation, we are of the opinion that the judgment of conviction and sentence cannot be upheld. So far as the submission of learned Additional Solicitor General that this Court, having regard to the concurrent findings of fact as regards the commission of offence arrived at by the learned Special Judge as also the High Court, should not exercise its discretionary jurisdiction under Article 136 of the Constitution of India is concerned, we do not find any substance therein. Appellants have been charged under wrong provisions. Proper charges have not been framed against them.29. In Lala Ram & Ors. vs. State of U.P. (1990) 2 SCC 113 , whereupon strong reliance has been placed by the learned Additional Solicitor General, this Court noticing various decisions opined that when there are various infirmities, the Supreme Court can interfere.It is, therefore, a case which comes within the purview of the dicta laid down therein. It is significant to notice that in that case itself this Court keeping in view the findings arrived at therein allowed the appeal preferred by the accused persons and set aside the judgment of conviction.It is one thing to say that ordinarily a concurrent finding of fact shall not be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India but it is another thing to say that despite opining that accused are entitled to acquittal, a judgment of conviction passed against them should be upheld. In fact, the jurisdiction of this Court must be exercised wherever it is required to do so for securing the ends of justice and to avoid injustice.30. The upshot of our discussions is:- (a) The prosecution did not lay down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants, nor any such finding has been arrived at by the trial court or the High Court.(b) The circumstances which were considered sufficient to bring home the charges against the appellant were: the cheques of accused Nos. 1, 2 and 3 were discounted after purchasing cheques; cheques were deposited after a gap of 1 to 4 days; only later the amounts were deposited in the account which circumstances, in our opinion, are not sufficient to hold the appellants guilty for commission of offence under Section 420 of the IPC as all the actions on the part of the bank officers were in consonance with the long standing banking practice.(c) Accused No. 4 had taken care of having adequate security to ensure that the bank does not suffer any loss, the gain if any was caused to the Bank.(d) Appellants acted on instructions by the higher authority.(e) The prosecution evidence does not establish any conspiracy on their part vis-à-vis Accused Nos. 1, 2 and 3. | 1[ds]21. It may be that there had been certain procedural irregularities in the transaction.However, sufficient evidence is available on record to show that the Officers had done so for the purpose of promoting the business of the Bank. In relation whereto or in respect whereof, initiatives had been taken by P.Ws. 19 and 20. It is furthermore not denied or disputed that after the cheque discounting facility was stopped in April, 1989 by Accused No. 4, there has been a meeting at the residence of P.W. 20. In his deposition, the said witness categorically admitted that the said meeting was arranged at the instance of Accsued No. 1. It is incomprehensible that a meeting has been arranged at his residence on the day he was on leave at the instance of Accused No.1. He must have developed grievance against the Accused No.4 as regards the stoppage of the said facility. If immediately thereafter the said facility had been restored by the Accused No. 4, a stand taken by him that it was done under the oral instructions of the higher authorities appears to be plausible.22. The prosecution apart from the fact that it had utterly failed to bring on record any evidence of conspiracy must also be held to have failed to bring on record any evidence of wrongful gain so as to attract the provisions of the Prevention of Corruption Act, 1988 or otherwise.23. The entire argument of Mr. B. Datta, learned Additional Solicitor General as also the findings arrived at by the learned Special Judge as also the High Court proved the ingredients of offence under Section 409 of the IPC. The accused persons, however, have not been charged for commission of the said offence. Conspiracy by and between the Bank officials and the Accused Nos. 1 to 3 has been stated to be for commission of the offence of cheating for the purpose of arriving at a finding that there has been a conspiracy so as to cheat the Bank. It was necessary for the prosecution to establish that there had been a meeting of mind at the time when the facility had been granted. Such meeting of mind on the part of the accused persons has not been proved. Furthermore, the prosecution case even if given face value and taken to be correct in its entirety does not lead to a finding that even Accused Nos. 1 to 3 had any wrongful intention at the time when the contract was initiated.24. We do not mean to suggest that in the matter of operating the account, no offence might have been committed by them. The offence, if any, it will be bear repetition to state, was committed under Section 409 of the IPC.25. The learned Special Judge as also the High court unfortunately proceeded on the basis that the cheque discounting facility could under no circumstances be made available to them.26. We do not think that, that was a correct approach. The RBI guidelines categorically show that it was not a wrong practice. It is one thing to say that there has been an abuse of a prevalent banking practice for the purpose of causing wrongful loss to the Bank and causing wrongful gain to others but it is another thing to say that by reason thereof, the ingredients of cheating are attracted.27. We have noticed hereinbefore that learned Additional Solicitor General merely took us through the judgment of the learned Special Judge as also the High court. His entire contention revolved around the commission of criminal breach of trust. Unfortunately, they have not been charged therewith. It would bear repetition to state that accused persons have not been charged under Section 409 of the IPC; even the Accused Nos. 1 to 3 have not been charged for entering into a conspiracy with Accused Nos. 4, 5 and 6 in respect of commission of offences under the Prevention of Corruption Act.28. It is in the aforementioned situation, we are of the opinion that the judgment of conviction and sentence cannot be upheld. So far as the submission of learned Additional Solicitor General that this Court, having regard to the concurrent findings of fact as regards the commission of offence arrived at by the learned Special Judge as also the High Court, should not exercise its discretionary jurisdiction under Article 136 of the Constitution of India is concerned, we do not find any substance therein. Appellants have been charged under wrong provisions. Proper charges have not been framed against them.29. In Lala Ram & Ors. vs. State of U.P. (1990) 2 SCC 113 , whereupon strong reliance has been placed by the learned Additional Solicitor General, this Court noticing various decisions opined that when there are various infirmities, the Supreme Court can interfere.It is, therefore, a case which comes within the purview of the dicta laid down therein. It is significant to notice that in that case itself this Court keeping in view the findings arrived at therein allowed the appeal preferred by the accused persons and set aside the judgment of conviction.It is one thing to say that ordinarily a concurrent finding of fact shall not be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India but it is another thing to say that despite opining that accused are entitled to acquittal, a judgment of conviction passed against them should be upheld. In fact, the jurisdiction of this Court must be exercised wherever it is required to do so for securing the ends of justice and to avoid injustice.30. The upshot of our discussionsThe prosecution did not lay down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants, nor any such finding has been arrived at by the trial court or the High Court.(b) The circumstances which were considered sufficient to bring home the charges against the appellant were: the cheques of accused Nos. 1, 2 and 3 were discounted after purchasing cheques; cheques were deposited after a gap of 1 to 4 days; only later the amounts were deposited in the account which circumstances, in our opinion, are not sufficient to hold the appellants guilty for commission of offence under Section 420 of the IPC as all the actions on the part of the bank officers were in consonance with the long standing banking practice.(c) Accused No. 4 had taken care of having adequate security to ensure that the bank does not suffer any loss, the gain if any was caused to the Bank.(d) Appellants acted on instructions by the higher authority.(e) The prosecution evidence does not establish any conspiracy on their partAccused Nos. 1, 2 and 3. | 1 | 9,598 | 1,228 | ### 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:
was on leave at the instance of Accused No.1. He must have developed grievance against the Accused No.4 as regards the stoppage of the said facility. If immediately thereafter the said facility had been restored by the Accused No. 4, a stand taken by him that it was done under the oral instructions of the higher authorities appears to be plausible.22. The prosecution apart from the fact that it had utterly failed to bring on record any evidence of conspiracy must also be held to have failed to bring on record any evidence of wrongful gain so as to attract the provisions of the Prevention of Corruption Act, 1988 or otherwise.23. The entire argument of Mr. B. Datta, learned Additional Solicitor General as also the findings arrived at by the learned Special Judge as also the High Court proved the ingredients of offence under Section 409 of the IPC. The accused persons, however, have not been charged for commission of the said offence. Conspiracy by and between the Bank officials and the Accused Nos. 1 to 3 has been stated to be for commission of the offence of cheating for the purpose of arriving at a finding that there has been a conspiracy so as to cheat the Bank. It was necessary for the prosecution to establish that there had been a meeting of mind at the time when the facility had been granted. Such meeting of mind on the part of the accused persons has not been proved. Furthermore, the prosecution case even if given face value and taken to be correct in its entirety does not lead to a finding that even Accused Nos. 1 to 3 had any wrongful intention at the time when the contract was initiated.24. We do not mean to suggest that in the matter of operating the account, no offence might have been committed by them. The offence, if any, it will be bear repetition to state, was committed under Section 409 of the IPC.25. The learned Special Judge as also the High court unfortunately proceeded on the basis that the cheque discounting facility could under no circumstances be made available to them.26. We do not think that, that was a correct approach. The RBI guidelines categorically show that it was not a wrong practice. It is one thing to say that there has been an abuse of a prevalent banking practice for the purpose of causing wrongful loss to the Bank and causing wrongful gain to others but it is another thing to say that by reason thereof, the ingredients of cheating are attracted.27. We have noticed hereinbefore that learned Additional Solicitor General merely took us through the judgment of the learned Special Judge as also the High court. His entire contention revolved around the commission of criminal breach of trust. Unfortunately, they have not been charged therewith. It would bear repetition to state that accused persons have not been charged under Section 409 of the IPC; even the Accused Nos. 1 to 3 have not been charged for entering into a conspiracy with Accused Nos. 4, 5 and 6 in respect of commission of offences under the Prevention of Corruption Act.28. It is in the aforementioned situation, we are of the opinion that the judgment of conviction and sentence cannot be upheld. So far as the submission of learned Additional Solicitor General that this Court, having regard to the concurrent findings of fact as regards the commission of offence arrived at by the learned Special Judge as also the High Court, should not exercise its discretionary jurisdiction under Article 136 of the Constitution of India is concerned, we do not find any substance therein. Appellants have been charged under wrong provisions. Proper charges have not been framed against them.29. In Lala Ram & Ors. vs. State of U.P. (1990) 2 SCC 113 , whereupon strong reliance has been placed by the learned Additional Solicitor General, this Court noticing various decisions opined that when there are various infirmities, the Supreme Court can interfere.It is, therefore, a case which comes within the purview of the dicta laid down therein. It is significant to notice that in that case itself this Court keeping in view the findings arrived at therein allowed the appeal preferred by the accused persons and set aside the judgment of conviction.It is one thing to say that ordinarily a concurrent finding of fact shall not be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India but it is another thing to say that despite opining that accused are entitled to acquittal, a judgment of conviction passed against them should be upheld. In fact, the jurisdiction of this Court must be exercised wherever it is required to do so for securing the ends of justice and to avoid injustice.30. The upshot of our discussions is:- (a) The prosecution did not lay down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants, nor any such finding has been arrived at by the trial court or the High Court.(b) The circumstances which were considered sufficient to bring home the charges against the appellant were: the cheques of accused Nos. 1, 2 and 3 were discounted after purchasing cheques; cheques were deposited after a gap of 1 to 4 days; only later the amounts were deposited in the account which circumstances, in our opinion, are not sufficient to hold the appellants guilty for commission of offence under Section 420 of the IPC as all the actions on the part of the bank officers were in consonance with the long standing banking practice.(c) Accused No. 4 had taken care of having adequate security to ensure that the bank does not suffer any loss, the gain if any was caused to the Bank.(d) Appellants acted on instructions by the higher authority.(e) The prosecution evidence does not establish any conspiracy on their part vis-à-vis Accused Nos. 1, 2 and 3.
### Response:
1
### Explanation:
residence on the day he was on leave at the instance of Accused No.1. He must have developed grievance against the Accused No.4 as regards the stoppage of the said facility. If immediately thereafter the said facility had been restored by the Accused No. 4, a stand taken by him that it was done under the oral instructions of the higher authorities appears to be plausible.22. The prosecution apart from the fact that it had utterly failed to bring on record any evidence of conspiracy must also be held to have failed to bring on record any evidence of wrongful gain so as to attract the provisions of the Prevention of Corruption Act, 1988 or otherwise.23. The entire argument of Mr. B. Datta, learned Additional Solicitor General as also the findings arrived at by the learned Special Judge as also the High Court proved the ingredients of offence under Section 409 of the IPC. The accused persons, however, have not been charged for commission of the said offence. Conspiracy by and between the Bank officials and the Accused Nos. 1 to 3 has been stated to be for commission of the offence of cheating for the purpose of arriving at a finding that there has been a conspiracy so as to cheat the Bank. It was necessary for the prosecution to establish that there had been a meeting of mind at the time when the facility had been granted. Such meeting of mind on the part of the accused persons has not been proved. Furthermore, the prosecution case even if given face value and taken to be correct in its entirety does not lead to a finding that even Accused Nos. 1 to 3 had any wrongful intention at the time when the contract was initiated.24. We do not mean to suggest that in the matter of operating the account, no offence might have been committed by them. The offence, if any, it will be bear repetition to state, was committed under Section 409 of the IPC.25. The learned Special Judge as also the High court unfortunately proceeded on the basis that the cheque discounting facility could under no circumstances be made available to them.26. We do not think that, that was a correct approach. The RBI guidelines categorically show that it was not a wrong practice. It is one thing to say that there has been an abuse of a prevalent banking practice for the purpose of causing wrongful loss to the Bank and causing wrongful gain to others but it is another thing to say that by reason thereof, the ingredients of cheating are attracted.27. We have noticed hereinbefore that learned Additional Solicitor General merely took us through the judgment of the learned Special Judge as also the High court. His entire contention revolved around the commission of criminal breach of trust. Unfortunately, they have not been charged therewith. It would bear repetition to state that accused persons have not been charged under Section 409 of the IPC; even the Accused Nos. 1 to 3 have not been charged for entering into a conspiracy with Accused Nos. 4, 5 and 6 in respect of commission of offences under the Prevention of Corruption Act.28. It is in the aforementioned situation, we are of the opinion that the judgment of conviction and sentence cannot be upheld. So far as the submission of learned Additional Solicitor General that this Court, having regard to the concurrent findings of fact as regards the commission of offence arrived at by the learned Special Judge as also the High Court, should not exercise its discretionary jurisdiction under Article 136 of the Constitution of India is concerned, we do not find any substance therein. Appellants have been charged under wrong provisions. Proper charges have not been framed against them.29. In Lala Ram & Ors. vs. State of U.P. (1990) 2 SCC 113 , whereupon strong reliance has been placed by the learned Additional Solicitor General, this Court noticing various decisions opined that when there are various infirmities, the Supreme Court can interfere.It is, therefore, a case which comes within the purview of the dicta laid down therein. It is significant to notice that in that case itself this Court keeping in view the findings arrived at therein allowed the appeal preferred by the accused persons and set aside the judgment of conviction.It is one thing to say that ordinarily a concurrent finding of fact shall not be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India but it is another thing to say that despite opining that accused are entitled to acquittal, a judgment of conviction passed against them should be upheld. In fact, the jurisdiction of this Court must be exercised wherever it is required to do so for securing the ends of justice and to avoid injustice.30. The upshot of our discussionsThe prosecution did not lay down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants, nor any such finding has been arrived at by the trial court or the High Court.(b) The circumstances which were considered sufficient to bring home the charges against the appellant were: the cheques of accused Nos. 1, 2 and 3 were discounted after purchasing cheques; cheques were deposited after a gap of 1 to 4 days; only later the amounts were deposited in the account which circumstances, in our opinion, are not sufficient to hold the appellants guilty for commission of offence under Section 420 of the IPC as all the actions on the part of the bank officers were in consonance with the long standing banking practice.(c) Accused No. 4 had taken care of having adequate security to ensure that the bank does not suffer any loss, the gain if any was caused to the Bank.(d) Appellants acted on instructions by the higher authority.(e) The prosecution evidence does not establish any conspiracy on their partAccused Nos. 1, 2 and 3.
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Maharashtra Shikshan Sanstha and Ors Vs. Dilip Ganpatrao Lanjewar and Ors | Kurian Joseph, J.1. Respondent No. 1 was appointed initially for a period of 10 months i.e. from 01.07.1990 to 30.04.1991. After a period of two months (apparently summer vacation), the Respondent was again appointed as teacher for a period of 10 months. Thereafter, he was discontinued from service.2. The Respondent challenged the same before the School Tribunal. The Tribunal held that the discontinuance was illegal. Therefore, an order was passed to reinstate the Respondent with all consequential benefits.3. The same was challenged by the Appellant-Management before the High Court. The writ petition was dismissed. The Appellant still pursued the matter before the Division Bench in an intra-court appeal. The appeal was also dismissed.Hence, this appeal.4. Mr. A.V. Mohta, learned senior Counsel appearing for the Appellants, placing heavy reliance on the decision of this Court in Hindustan Education Society and Anr. v. S.K. Kaleem S.K. Gulam Nabi and Ors. (Civil Appeal No. 1971 of 1997) dated 10.03.1997, submits that the Respondent having accepted an appointment for a fixed period, cannot claim continuance in the school. However, on the facts, we find that it was an appointment against a permanent vacancy, which is not disputed either before the Tribunal or before the High Court.5. In that view of the matter, we are also of the view that the High Court has rightly distinguished the case of Hindustan Education Society (supra) with the present case.6. The Respondent has been out of service since 1992. We are informed that he would be otherwise due to superannuate in the year 2019. | 1[ds]However, on the facts, we find that it was an appointment against a permanent vacancy, which is not disputed either before the Tribunal or before the High Court5. In that view of the matter, we are also of the view that the High Court has rightly distinguished the case of Hindustan Education Society (supra) with the present case6. The Respondent has been out of service since 1992. We are informed that he would be otherwise due to superannuate in the year 2019. | 1 | 300 | 96 | ### 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:
Kurian Joseph, J.1. Respondent No. 1 was appointed initially for a period of 10 months i.e. from 01.07.1990 to 30.04.1991. After a period of two months (apparently summer vacation), the Respondent was again appointed as teacher for a period of 10 months. Thereafter, he was discontinued from service.2. The Respondent challenged the same before the School Tribunal. The Tribunal held that the discontinuance was illegal. Therefore, an order was passed to reinstate the Respondent with all consequential benefits.3. The same was challenged by the Appellant-Management before the High Court. The writ petition was dismissed. The Appellant still pursued the matter before the Division Bench in an intra-court appeal. The appeal was also dismissed.Hence, this appeal.4. Mr. A.V. Mohta, learned senior Counsel appearing for the Appellants, placing heavy reliance on the decision of this Court in Hindustan Education Society and Anr. v. S.K. Kaleem S.K. Gulam Nabi and Ors. (Civil Appeal No. 1971 of 1997) dated 10.03.1997, submits that the Respondent having accepted an appointment for a fixed period, cannot claim continuance in the school. However, on the facts, we find that it was an appointment against a permanent vacancy, which is not disputed either before the Tribunal or before the High Court.5. In that view of the matter, we are also of the view that the High Court has rightly distinguished the case of Hindustan Education Society (supra) with the present case.6. The Respondent has been out of service since 1992. We are informed that he would be otherwise due to superannuate in the year 2019.
### Response:
1
### Explanation:
However, on the facts, we find that it was an appointment against a permanent vacancy, which is not disputed either before the Tribunal or before the High Court5. In that view of the matter, we are also of the view that the High Court has rightly distinguished the case of Hindustan Education Society (supra) with the present case6. The Respondent has been out of service since 1992. We are informed that he would be otherwise due to superannuate in the year 2019.
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Mahila Vikas Mandal Colaba Vs. State Of Maharashtra | notified that since there was violation of the terms and conditions of the land grant, action was to be taken and in addition the defaulted amount i.e. Rs. 19,03,103/- was to be recovered. It was also indicate that coercive action shall be taken if payment is not made within three days of the receipt of the notice. Reply was submitted by the appellants on 20.2.2003 stating that there was no violation as alleged, and further the demand as raised was without any basis. After receipt of the reply notice of recovery as land revenue as per Section 267 of the Maharashtra Land Revenue Code, 1966 (in short the Code) was issued granting 20 days time for making payment. Writ Petition as filed before the Bombay High Court questioning legality of the demand. After notice the respondents filed counter affidavit justifying the action and demand raised. Essentially, two stands were taken by the writ petitioner before the High Court. Firstly, it was contended that due and proper opportunity was not given to the writ petitioners to present their case. Secondly, it was submitted that the quantum as demanded has no basis of computation. The High Court by the impugned judgment held after taking note of the counter affidavit that the demand was in order. High Court noted that an amount of Rs. 73,82,055/- was received in respect of 690 programmes as rental. Aforesaid amount of Rs. 73,82,055/- included a sum of Rs. 35,75,850/- as security deposit and the balance of Rs. 38,06,205/- was earned as income, and 50% thereof came to Rs. 19,03,103/- which was demanded. It was held that adequate opportunity was granted to the appellant to have their say. The writ petition was accordingly dismissed. 4. In support of the appeal, learned counsel for the appellants submitted that the authorities and the High Court have fallen into grave errors by holding that 50% of the receipts were to be paid. What was required to be paid was 50% of the "net profit". Materials on record show that there was no profit.5. In response, learned counsel for the respondents submitted that undisputedly the appellants had carried on remunerative activities and received Rs. 38,06,205/- which was earned as income. Therefore, the demand of 50% thereof is in order. 6. In order to appreciate rival submissions the condition in the Grant dated 18.5.1984 needs to be noted. The disputed revolves round Condition No. (iii) which reads as follows:- "The lessees shall utilize the land for construction of two buildings, one for the womens hostel providing necessary facilities like recreation, library cum reading room, indoor games etc. and another building with a built up area of 6000 square feet out of which a portion of 3000 square feet should be allowed to be let out to a bank or showrooms as permissible under the Development Control Rules for the area and 1500 square feet to be used for diagnostic centre and another 1500 square feet to be used for Mandals other activities.Provided further that the permission to utilize 4500 square feet built up area for commercial purpose is granted subject to the conditions that the lessees undertake to pay to Government 50% of the net income derived by them from the source.Provided further that if the Mandal utilizes any other area specifically set apart for its non remunerative activities for any remunerative purpose, it shall take prior approval of the Collector of Bombay, which if granted, will be subject to payment of 50% of the net profit." 7. A bare perusal of the condition shows that requirement was to pay 50% of "net profit". What would constitute net profit has not been spelt out in the Grant. Obviously therefore, the expression "net profit" as commercially understood had to be adopted. 8. The fundamental meaning of the expression "profit" is the amount of gain made during a particular period. (See: Spanish Prospecting Company Ltd., in Re 1911 (1) Ch. 92 (CA). 9. This Court in Commissioner of Income Tax vs. Delhi Flour Mills Company Ltd., (1959 (85) ITR 15 SC) held that when question arises regarding the meaning to be assigned to the expression "net profit", the question is to be determined on the construction of the relevant agreement, which is to be construed according to the words contained in it and the circumstances in which it was made. 10. "Income"; and "profits" are not synonymous in all cases. In certain statutes "income" and "profits" are treated differently. While considering a case under the Income-tax Act, 1961 (in short the I.T. Act) this Court held that in the ordinary economic sense the expression "income" includes not merely what is received or what comes in by exploiting the use of the property but also what one saves by using it oneself. That which can be converted into income can be reasonably regarded as giving rise to income (See Bhagwan Dass Jain vs. Union of India and others, (1981 (2) SCC 135 ). 11. In the popular sense the two words "receipts" and "profit" are very different expressions. Profits are pointed out as the surplus by which the receipts exceed the expenditure (See: Russel vs. Town and Country Bank (1889) 13 A.C. 418). 12. As observed by the Privy Council in The King vs. B.C. Fir and Cedar Lumber Company (AIR 1932 PC 121 ), monies which are not really profits of a business may yet be income. The Privy Council in Secretary of State vs. Saroj Kumar (AIR 1935 PC 49 ), held that profit means the difference between the amount realized and the expenses incurred in realizing it. As noted by this Court in E.D. Dassoon and Company Ltd. vs. Commissioner of Income Tax. Bombay City (1955(1) SCR 313) the word "profit" has well defined legal meaning, which coincides with the fundamental conception of profits in the general parlance, although in mercantile phraseology the word may at times bear meanings indicated by the special context, which deviate in some respects from the fundamental significance. | 1[ds]7. A bare perusal of the condition shows that requirement was to pay 50% of "net profit". What would constitute net profit has not been spelt out in the Grant. Obviously therefore, the expression "net profit" as commercially understood had to be adopted."Income"; and "profits" are not synonymous in all cases. In certain statutes "income" and "profits" are treated differently. While considering a case under the Income-tax Act, 1961 (in short the I.T. Act) this Court held that in the ordinary economic sense the expression "income" includes not merely what is received or what comes in by exploiting the use of the property but also what one saves by using it oneself. That which can be converted into income can be reasonably regarded as giving rise toA bare perusal of the condition shows that requirement was to pay 50% of "net profit". What would constitute net profit has not been spelt out in the Grant. Obviously therefore, the expression "net profit" as commercially understood had to be adopted.The fundamental meaning of the expression "profit" is the amount of gain made during a particular period. (See: Spanish Prospecting Company Ltd., in Re 1911 (1) Ch. 92 (CA).This Court in Commissioner of Income Tax vs. Delhi Flour Mills Company Ltd., (1959 (85) ITR 15 SC) held that when question arises regarding the meaning to be assigned to the expression "net profit", the question is to be determined on the construction of the relevant agreement, which is to be construed according to the words contained in it and the circumstances in which it was made.; and "profits" are not synonymous in all cases. In certain statutes "income" and "profits" are treated differently. While considering a case under theAct, 1961 (in short the I.T. Act) this Court held that in the ordinary economic sense the expression "income" includes not merely what is received or what comes in by exploiting the use of the property but also what one saves by using it oneself. That which can be converted into income can be reasonably regarded as giving rise toincome (See Bhagwan Dass Jain vs. Union of India and others, (1981 (2) SCC 135 ).In the popular sense the two words "receipts" and "profit" are very different expressions. Profits are pointed out as the surplus by which the receipts exceed the expenditure (See:Russel vs. Town and Country Bank (1889) 13 A.C. 418).As observed by the Privy Council in The King vs. B.C. Fir and Cedar Lumber Company (AIR 1932 PC 121 ), monies which are not really profits of a business may yet be income. The Privy Council in Secretary of State vs. Saroj Kumar (AIR 1935 PC 49 ), held that profit means the difference between the amount realized and the expenses incurred in realizing it. As noted by this Court in E.D. Dassoon and Company Ltd. vs. Commissioner of Income Tax. Bombay City (1955(1) SCR 313) the word "profit" has well defined legal meaning, which coincides with the fundamental conception of profits in the general parlance, although in mercantile phraseology the word may at times bear meanings indicated by the special context, which deviate in some respects from the fundamental significance. | 1 | 1,440 | 644 | ### 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:
notified that since there was violation of the terms and conditions of the land grant, action was to be taken and in addition the defaulted amount i.e. Rs. 19,03,103/- was to be recovered. It was also indicate that coercive action shall be taken if payment is not made within three days of the receipt of the notice. Reply was submitted by the appellants on 20.2.2003 stating that there was no violation as alleged, and further the demand as raised was without any basis. After receipt of the reply notice of recovery as land revenue as per Section 267 of the Maharashtra Land Revenue Code, 1966 (in short the Code) was issued granting 20 days time for making payment. Writ Petition as filed before the Bombay High Court questioning legality of the demand. After notice the respondents filed counter affidavit justifying the action and demand raised. Essentially, two stands were taken by the writ petitioner before the High Court. Firstly, it was contended that due and proper opportunity was not given to the writ petitioners to present their case. Secondly, it was submitted that the quantum as demanded has no basis of computation. The High Court by the impugned judgment held after taking note of the counter affidavit that the demand was in order. High Court noted that an amount of Rs. 73,82,055/- was received in respect of 690 programmes as rental. Aforesaid amount of Rs. 73,82,055/- included a sum of Rs. 35,75,850/- as security deposit and the balance of Rs. 38,06,205/- was earned as income, and 50% thereof came to Rs. 19,03,103/- which was demanded. It was held that adequate opportunity was granted to the appellant to have their say. The writ petition was accordingly dismissed. 4. In support of the appeal, learned counsel for the appellants submitted that the authorities and the High Court have fallen into grave errors by holding that 50% of the receipts were to be paid. What was required to be paid was 50% of the "net profit". Materials on record show that there was no profit.5. In response, learned counsel for the respondents submitted that undisputedly the appellants had carried on remunerative activities and received Rs. 38,06,205/- which was earned as income. Therefore, the demand of 50% thereof is in order. 6. In order to appreciate rival submissions the condition in the Grant dated 18.5.1984 needs to be noted. The disputed revolves round Condition No. (iii) which reads as follows:- "The lessees shall utilize the land for construction of two buildings, one for the womens hostel providing necessary facilities like recreation, library cum reading room, indoor games etc. and another building with a built up area of 6000 square feet out of which a portion of 3000 square feet should be allowed to be let out to a bank or showrooms as permissible under the Development Control Rules for the area and 1500 square feet to be used for diagnostic centre and another 1500 square feet to be used for Mandals other activities.Provided further that the permission to utilize 4500 square feet built up area for commercial purpose is granted subject to the conditions that the lessees undertake to pay to Government 50% of the net income derived by them from the source.Provided further that if the Mandal utilizes any other area specifically set apart for its non remunerative activities for any remunerative purpose, it shall take prior approval of the Collector of Bombay, which if granted, will be subject to payment of 50% of the net profit." 7. A bare perusal of the condition shows that requirement was to pay 50% of "net profit". What would constitute net profit has not been spelt out in the Grant. Obviously therefore, the expression "net profit" as commercially understood had to be adopted. 8. The fundamental meaning of the expression "profit" is the amount of gain made during a particular period. (See: Spanish Prospecting Company Ltd., in Re 1911 (1) Ch. 92 (CA). 9. This Court in Commissioner of Income Tax vs. Delhi Flour Mills Company Ltd., (1959 (85) ITR 15 SC) held that when question arises regarding the meaning to be assigned to the expression "net profit", the question is to be determined on the construction of the relevant agreement, which is to be construed according to the words contained in it and the circumstances in which it was made. 10. "Income"; and "profits" are not synonymous in all cases. In certain statutes "income" and "profits" are treated differently. While considering a case under the Income-tax Act, 1961 (in short the I.T. Act) this Court held that in the ordinary economic sense the expression "income" includes not merely what is received or what comes in by exploiting the use of the property but also what one saves by using it oneself. That which can be converted into income can be reasonably regarded as giving rise to income (See Bhagwan Dass Jain vs. Union of India and others, (1981 (2) SCC 135 ). 11. In the popular sense the two words "receipts" and "profit" are very different expressions. Profits are pointed out as the surplus by which the receipts exceed the expenditure (See: Russel vs. Town and Country Bank (1889) 13 A.C. 418). 12. As observed by the Privy Council in The King vs. B.C. Fir and Cedar Lumber Company (AIR 1932 PC 121 ), monies which are not really profits of a business may yet be income. The Privy Council in Secretary of State vs. Saroj Kumar (AIR 1935 PC 49 ), held that profit means the difference between the amount realized and the expenses incurred in realizing it. As noted by this Court in E.D. Dassoon and Company Ltd. vs. Commissioner of Income Tax. Bombay City (1955(1) SCR 313) the word "profit" has well defined legal meaning, which coincides with the fundamental conception of profits in the general parlance, although in mercantile phraseology the word may at times bear meanings indicated by the special context, which deviate in some respects from the fundamental significance.
### Response:
1
### Explanation:
7. A bare perusal of the condition shows that requirement was to pay 50% of "net profit". What would constitute net profit has not been spelt out in the Grant. Obviously therefore, the expression "net profit" as commercially understood had to be adopted."Income"; and "profits" are not synonymous in all cases. In certain statutes "income" and "profits" are treated differently. While considering a case under the Income-tax Act, 1961 (in short the I.T. Act) this Court held that in the ordinary economic sense the expression "income" includes not merely what is received or what comes in by exploiting the use of the property but also what one saves by using it oneself. That which can be converted into income can be reasonably regarded as giving rise toA bare perusal of the condition shows that requirement was to pay 50% of "net profit". What would constitute net profit has not been spelt out in the Grant. Obviously therefore, the expression "net profit" as commercially understood had to be adopted.The fundamental meaning of the expression "profit" is the amount of gain made during a particular period. (See: Spanish Prospecting Company Ltd., in Re 1911 (1) Ch. 92 (CA).This Court in Commissioner of Income Tax vs. Delhi Flour Mills Company Ltd., (1959 (85) ITR 15 SC) held that when question arises regarding the meaning to be assigned to the expression "net profit", the question is to be determined on the construction of the relevant agreement, which is to be construed according to the words contained in it and the circumstances in which it was made.; and "profits" are not synonymous in all cases. In certain statutes "income" and "profits" are treated differently. While considering a case under theAct, 1961 (in short the I.T. Act) this Court held that in the ordinary economic sense the expression "income" includes not merely what is received or what comes in by exploiting the use of the property but also what one saves by using it oneself. That which can be converted into income can be reasonably regarded as giving rise toincome (See Bhagwan Dass Jain vs. Union of India and others, (1981 (2) SCC 135 ).In the popular sense the two words "receipts" and "profit" are very different expressions. Profits are pointed out as the surplus by which the receipts exceed the expenditure (See:Russel vs. Town and Country Bank (1889) 13 A.C. 418).As observed by the Privy Council in The King vs. B.C. Fir and Cedar Lumber Company (AIR 1932 PC 121 ), monies which are not really profits of a business may yet be income. The Privy Council in Secretary of State vs. Saroj Kumar (AIR 1935 PC 49 ), held that profit means the difference between the amount realized and the expenses incurred in realizing it. As noted by this Court in E.D. Dassoon and Company Ltd. vs. Commissioner of Income Tax. Bombay City (1955(1) SCR 313) the word "profit" has well defined legal meaning, which coincides with the fundamental conception of profits in the general parlance, although in mercantile phraseology the word may at times bear meanings indicated by the special context, which deviate in some respects from the fundamental significance.
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Manager, Corporate Educational Agency Vs. James Mathew & Others | assessment of the persons outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited, to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions.29. Section 57(3) of the Act provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate, or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority run educational institutions even if they are aided."(Emphasis supplied)The emerging position is that, once the Management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute.6. As far as the validity of the declaration of minority status is concerned, this Court in N. Ammad v. Manager, Emjay High School and Others, [(1998) 6 SCC 674] , has held that the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence. Paras 12 and 13 of the Judgment are quoted hereunder :-12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus:"30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice."13. When the Government declared the school as a minority school it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school on 2-8-1994."7. We also have to refer to another faulty stand taken by the High Court in the impugned Judgment regarding the jurisdiction of the National Commission for Minority Educational Institutions. The Commission was established under the National Commission for Minority Educational Institutions Act, 2004 for the purpose of constituting the National Commission for Minority Educational Institutions and to provide assistance for matters connected therewith or incidental thereto.8. Chapter III deals with rights of minority educational institutions. Under Section 10, whosoever desires to establish a minority educational institution, has to apply to the competent authority for a no objection certificate. The competent authority is defined under Section 2(ca) of the Act to mean, the authority appointed by the appropriate government to grant no objection certificate for the establishment of any educational institution of their choice by the minorities.9. Chapter IV deals with functions and powers of the Commission. Under Section 11(f), the Commission has been vested with the power rather the mandate to decide all questions relating to the status of any institution as a minority educational institution and declare its status as such. Section 11 of the Act is quoted hereunder :-"11. Functions of Commission - Notwithstanding anything contained in any other law for the time being in force, the Commission shall - (a) advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it;(b) enquire, suo motu or on a petition presented to it by any by any minority educational institution or any person on its behalf into complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating to affiliation to a University and report its finding to the appropriate Government for its implementation;(c) intervene in any proceeding involving any deprivation or violation of the educational rights of the minorities before a court with the leave of such court;(d) review the safeguards provided by or under the Constitution, or any law for the time being in force, for the protection of educational rights of the minorities and recommend measures for their effective implementation;(e) specify measures to promote and preserve the minority status and character of institutions of their choice established by minorities;(f) decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such;(g) make recommendations to the appropriate Government for the effective implementation of programmes and schemes relating to the Minority Educational Institutions; and(h) do such other acts and things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Commission."(Emphasis supplied)10. Therefore, after the establishment of the National Commission for Minority Educational Institutions Act, 2004, it is also within the jurisdiction and mandate of the National Commission to issue the certificate regarding the status of a minority educational institution. Once, the Commission thus issues a certificate, it is a declaration of an existing status. | 1[ds]4. We are afraid, the stand taken by the High Court cannot be appreciated. On all the three points, the position is well settled by the Judgments of thisemerging position is that, once the Management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute.6. As far as the validity of the declaration of minority status is concerned, this Court in N. Ammad v. Manager, Emjay High School and Others, [(1998) 6 SCC 674] , has held that the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence.We also have to refer to another faulty stand taken by the High Court in the impugned Judgment regarding the jurisdiction of the National Commission for Minority Educational Institutions. The Commission was established under the National Commission for Minority Educational Institutions Act, 2004 for the purpose of constituting the National Commission for Minority Educational Institutions and to provide assistance for matters connected therewith or incidental thereto.Therefore, after the establishment of the National Commission for Minority Educational Institutions Act, 2004, it is also within the jurisdiction and mandate of the National Commission to issue the certificate regarding the status of a minority educational institution. Once, the Commission thus issues a certificate, it is a declaration of an existing status. | 1 | 1,983 | 323 | ### 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:
assessment of the persons outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited, to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions.29. Section 57(3) of the Act provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate, or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority run educational institutions even if they are aided."(Emphasis supplied)The emerging position is that, once the Management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute.6. As far as the validity of the declaration of minority status is concerned, this Court in N. Ammad v. Manager, Emjay High School and Others, [(1998) 6 SCC 674] , has held that the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence. Paras 12 and 13 of the Judgment are quoted hereunder :-12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus:"30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice."13. When the Government declared the school as a minority school it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school on 2-8-1994."7. We also have to refer to another faulty stand taken by the High Court in the impugned Judgment regarding the jurisdiction of the National Commission for Minority Educational Institutions. The Commission was established under the National Commission for Minority Educational Institutions Act, 2004 for the purpose of constituting the National Commission for Minority Educational Institutions and to provide assistance for matters connected therewith or incidental thereto.8. Chapter III deals with rights of minority educational institutions. Under Section 10, whosoever desires to establish a minority educational institution, has to apply to the competent authority for a no objection certificate. The competent authority is defined under Section 2(ca) of the Act to mean, the authority appointed by the appropriate government to grant no objection certificate for the establishment of any educational institution of their choice by the minorities.9. Chapter IV deals with functions and powers of the Commission. Under Section 11(f), the Commission has been vested with the power rather the mandate to decide all questions relating to the status of any institution as a minority educational institution and declare its status as such. Section 11 of the Act is quoted hereunder :-"11. Functions of Commission - Notwithstanding anything contained in any other law for the time being in force, the Commission shall - (a) advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it;(b) enquire, suo motu or on a petition presented to it by any by any minority educational institution or any person on its behalf into complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating to affiliation to a University and report its finding to the appropriate Government for its implementation;(c) intervene in any proceeding involving any deprivation or violation of the educational rights of the minorities before a court with the leave of such court;(d) review the safeguards provided by or under the Constitution, or any law for the time being in force, for the protection of educational rights of the minorities and recommend measures for their effective implementation;(e) specify measures to promote and preserve the minority status and character of institutions of their choice established by minorities;(f) decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such;(g) make recommendations to the appropriate Government for the effective implementation of programmes and schemes relating to the Minority Educational Institutions; and(h) do such other acts and things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Commission."(Emphasis supplied)10. Therefore, after the establishment of the National Commission for Minority Educational Institutions Act, 2004, it is also within the jurisdiction and mandate of the National Commission to issue the certificate regarding the status of a minority educational institution. Once, the Commission thus issues a certificate, it is a declaration of an existing status.
### Response:
1
### Explanation:
4. We are afraid, the stand taken by the High Court cannot be appreciated. On all the three points, the position is well settled by the Judgments of thisemerging position is that, once the Management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute.6. As far as the validity of the declaration of minority status is concerned, this Court in N. Ammad v. Manager, Emjay High School and Others, [(1998) 6 SCC 674] , has held that the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence.We also have to refer to another faulty stand taken by the High Court in the impugned Judgment regarding the jurisdiction of the National Commission for Minority Educational Institutions. The Commission was established under the National Commission for Minority Educational Institutions Act, 2004 for the purpose of constituting the National Commission for Minority Educational Institutions and to provide assistance for matters connected therewith or incidental thereto.Therefore, after the establishment of the National Commission for Minority Educational Institutions Act, 2004, it is also within the jurisdiction and mandate of the National Commission to issue the certificate regarding the status of a minority educational institution. Once, the Commission thus issues a certificate, it is a declaration of an existing status.
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R. BALAKRISHNA BHAT Vs. BANK OF BARODA | Uday Umesh Lalit, J. 1. These appeals by special leave arise out of Judgment and Order dated 09.10.2013 passed by the High Court of Judicature at Madras allowing Writ Appeal Nos.1127 to 1129 of 2013 and dismissing Writ Petition Nos.6632 of 2007, 9952 of 2007 and 14983 of 2007.2. The aforesaid Writ Petitions preferred by the present appellants were allowed by Single Judge of High Court vide common Judgment and Order dated 14.12.2012. While setting aside the decision of the Single Judge, the Division Bench relied upon its Judgment rendered in Writ Appeal No.355 of 2013 and allied matters (Indian Overseas Bank and Another v. C.R. Chandrasekaran etc.) 3. Said Judgment rendered in Indian Overseas Bank and Another v. C.R. Chandrasekaran etc. by the Division Bench was affirmed by this Court in Civil Appeal Nos.8420-8421 of 2013 vide order dated 01.02.2017. 4. The controversy in the present appeals is similar to that arising in Union Bank of India vs. United Bank of India Retirees Welfare Associations and others which have been disposed of by us vide Judgment of even date. | 0[ds]4. The controversy in the present appeals is similar to that arising in Union Bank of India vs. United Bank of India Retirees Welfare Associations and others which have been disposed of by us vide Judgment of even date. | 0 | 197 | 45 | ### 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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Uday Umesh Lalit, J. 1. These appeals by special leave arise out of Judgment and Order dated 09.10.2013 passed by the High Court of Judicature at Madras allowing Writ Appeal Nos.1127 to 1129 of 2013 and dismissing Writ Petition Nos.6632 of 2007, 9952 of 2007 and 14983 of 2007.2. The aforesaid Writ Petitions preferred by the present appellants were allowed by Single Judge of High Court vide common Judgment and Order dated 14.12.2012. While setting aside the decision of the Single Judge, the Division Bench relied upon its Judgment rendered in Writ Appeal No.355 of 2013 and allied matters (Indian Overseas Bank and Another v. C.R. Chandrasekaran etc.) 3. Said Judgment rendered in Indian Overseas Bank and Another v. C.R. Chandrasekaran etc. by the Division Bench was affirmed by this Court in Civil Appeal Nos.8420-8421 of 2013 vide order dated 01.02.2017. 4. The controversy in the present appeals is similar to that arising in Union Bank of India vs. United Bank of India Retirees Welfare Associations and others which have been disposed of by us vide Judgment of even date.
### Response:
0
### Explanation:
4. The controversy in the present appeals is similar to that arising in Union Bank of India vs. United Bank of India Retirees Welfare Associations and others which have been disposed of by us vide Judgment of even date.
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Rushikesh Bharat Garud Vs. The State of Maharashtra and others | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.06.2021 passed by the High Court of Judicature at Bombay in Writ Petition No. 11536 of 2021, by which the High Court has dismissed the said writ petition preferred by the appellant herein in which the appellant herein challenged the order passed by Scheduled Tribe Certificate Scrutiny Committee, Nashik (for short, Scrutiny Committee), invalidating the caste certificate issued to the appellant, the original writ petitioner has preferred the present appeal. 2. We have heard Mr. Uday B. Dube, learned Advocate appearing for the appellant and Mr. Sachin Patil, learned Advocate appearing for the State of Maharashtra and the Scrutiny Committee. 3. From the impugned judgment and order passed by the High Court, it appears that before the High Court the appellant heavily relied upon the validity certificates issued to his father Bharat Nagu Garud dated 14.01.2005 as well as to his cousins – Nilima Rohidas Garud dated 9.9.2005; Pravin Rohidas Garud dated 9.9.2005; Priyanka Rohidas Garud dated 20.09.2005; Rohidas Nago Garud dated 25.05.2011; and Ramdas Nagu Garud dated 07.12.2012. The aforesaid was also the case of the appellant herein before the Scrutiny Committee. However, the Scrutiny Committee while not accepting the above submission observed that when the appellants fathers caste claim was considered, 35 contradictory entries were not placed before the Scrutiny Committee. Neither were the original validity certificates relied upon by the appellant produced nor the genealogy. The Scrutiny Committee made identical observations regarding other validity certificates to the effect that the adverse entries were not placed on record. However, the fact remains that at the relevant time those caste certificates were not cancelled by the Scrutiny Committee. 4. Be that as it may. Now, it is the case on behalf of the appellant that the cases of the father of the appellant and his cousins have been re-opened and show cause notices have been issued to show cause why their caste certificates be not cancelled. Therefore, the validity of the caste certificates in favour of the father of the appellant and in favour of his cousins is at large before the Security Committee. Therefore, it will be appropriate if the cases of all, namely, father of the appellant, cousins of the appellant and the appellant herein be considered together, to avoid any conflicting orders. | 1[ds]Now, it is the case on behalf of the appellant that the cases of the father of the appellant and his cousins have been re-opened and show cause notices have been issued to show cause why their caste certificates be not cancelled. Therefore, the validity of the caste certificates in favour of the father of the appellant and in favour of his cousins is at large before the Security Committee. Therefore, it will be appropriate if the cases of all, namely, father of the appellant, cousins of the appellant and the appellant herein be considered together, to avoid any conflicting orders. | 1 | 435 | 115 | ### 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:
M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.06.2021 passed by the High Court of Judicature at Bombay in Writ Petition No. 11536 of 2021, by which the High Court has dismissed the said writ petition preferred by the appellant herein in which the appellant herein challenged the order passed by Scheduled Tribe Certificate Scrutiny Committee, Nashik (for short, Scrutiny Committee), invalidating the caste certificate issued to the appellant, the original writ petitioner has preferred the present appeal. 2. We have heard Mr. Uday B. Dube, learned Advocate appearing for the appellant and Mr. Sachin Patil, learned Advocate appearing for the State of Maharashtra and the Scrutiny Committee. 3. From the impugned judgment and order passed by the High Court, it appears that before the High Court the appellant heavily relied upon the validity certificates issued to his father Bharat Nagu Garud dated 14.01.2005 as well as to his cousins – Nilima Rohidas Garud dated 9.9.2005; Pravin Rohidas Garud dated 9.9.2005; Priyanka Rohidas Garud dated 20.09.2005; Rohidas Nago Garud dated 25.05.2011; and Ramdas Nagu Garud dated 07.12.2012. The aforesaid was also the case of the appellant herein before the Scrutiny Committee. However, the Scrutiny Committee while not accepting the above submission observed that when the appellants fathers caste claim was considered, 35 contradictory entries were not placed before the Scrutiny Committee. Neither were the original validity certificates relied upon by the appellant produced nor the genealogy. The Scrutiny Committee made identical observations regarding other validity certificates to the effect that the adverse entries were not placed on record. However, the fact remains that at the relevant time those caste certificates were not cancelled by the Scrutiny Committee. 4. Be that as it may. Now, it is the case on behalf of the appellant that the cases of the father of the appellant and his cousins have been re-opened and show cause notices have been issued to show cause why their caste certificates be not cancelled. Therefore, the validity of the caste certificates in favour of the father of the appellant and in favour of his cousins is at large before the Security Committee. Therefore, it will be appropriate if the cases of all, namely, father of the appellant, cousins of the appellant and the appellant herein be considered together, to avoid any conflicting orders.
### Response:
1
### Explanation:
Now, it is the case on behalf of the appellant that the cases of the father of the appellant and his cousins have been re-opened and show cause notices have been issued to show cause why their caste certificates be not cancelled. Therefore, the validity of the caste certificates in favour of the father of the appellant and in favour of his cousins is at large before the Security Committee. Therefore, it will be appropriate if the cases of all, namely, father of the appellant, cousins of the appellant and the appellant herein be considered together, to avoid any conflicting orders.
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PERKINS EASTMAN ARCHITECTS DPC Vs. HSCC (INDIA) LIMITED | from today. 20. In the light of the aforestated principles, the report of the Law Commission and the decision in Voestapline Schienen Gmbh , the imperatives of creating healthy arbitration environment demand that the instant application deserves acceptance. 21. The further question that arises is whether the power can be exercised by this Court under Section 11 of the Act when the appointment of an arbitrator has already been made by the respondent and whether the appellant should be left to raise challenge at an appropriate stage in terms of remedies available in law. Similar controversy was gone into by a Designated Judge of this Court in Walter Bau AG (2015) 3 SCC 800 and the discussion on the point was as under:- 9. While it is correct that in Antrix (2014) 11 SCC 560 and Pricol Ltd. (2015) 4 SCC 177 , it was opined by this Court that after appointment of an arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix (2014) 11 SCC 560 , appointment of the arbitrator, as per the ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Ltd. (2015) 4 SCC 177 . , the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the arbitrator. In the present case, the situation is otherwise. 10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by the second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. 18 may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of arbitrators by ICADR, which the parties had agreed to abide by in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non est in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd (2000) 8 SCC 151 . , is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by ICADR. The said appointment, therefore, is clearly invalid in law. 22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:- 32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG (2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case (2015) 3 SCC 800 , SCC p. 806, para 10) 10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …33. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore. 23. In TRF Limited (2017) 8 SCC 377 , the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal therefrom on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for fresh consideration as is discernible from para 55 of the Judgment. In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants. 24. It is also clear from the Clause in the instant case that no special qualifications such as expertise in any technical field are required of an arbitrator. This was fairly accepted by the learned Senior Counsel for the respondent. 25. In the aforesaid circumstances, in our view a case is made out to entertain the instant application preferred by the Applicants. | 1[ds]8. It is not disputed by the respondent that it was a requisite condition to declare a lead member of the Consortium and that by aforesaid declaration the applicant No.1 was shown to be the lead member of theConsortium. The reliance is however placed by the respondent on Clause 9 of the Consortium Agreement by virtue of which both the Applicants would be jointly and severely responsible for the execution of the project. It is clear that the declaration shows that the Applicant No.1 was accepted to be the lead member of the Consortium. Even if the liability of both the Applicants was stated in Clause 9 to be joint and several, that by itself would not change the status of the Applicant No.1 to be the lead member. We shall, therefore, proceed on the premise that Applicant No.1 is the lead member of the Consortium9. In Larsen and Toubro Limited SCOMI Engineering BHD 5 more or less similar fact situation came up for consideration. The only distinction was that the lead member in the consortium was an entity registered in India10. It was thus held that Association and Body of individuals referred to in Section 2(1)(f) of the Act would be separate categories. However, the lead member of the Association in that case being an Indian entity, the Central Management and Control of the Association was held to be in a country other than India. Relying on said decision we conclude that the lead member of the Consortium company i.e. Applicant No.1 being an Architectural Firm having its registered office in New York, requirements of Section 2(1)(f) of the Act are satisfied and the arbitration in the present case would be an International Commercial ArbitrationWe thus have two categories of cases. The first, similar to the one dealt with in TRF Limited (2017) 8 SCC 377 where the Managing Director himself is named as an arbitrator with an additional power to appoint any other person as an arbitrator. In the second category, the Managing Director is not to act as an arbitrator himself but is empowered or authorised to appoint any other person of his choice or discretion as an arbitrator. If, in the first category of cases, the Managing Director was found incompetent, it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test, similar invalidity would always arise and spring even in the second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective of whether the matter stands under the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Limited (2017) 8 SCC 377 , all cases having clauses similar to that with which we are presently concerned, a party to the agreement would be disentitled to make any appointment of an Arbitrator on its own and it would always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an Arbitrator16. But, in our view that has to be the logical deduction from TRF Limited (2017) 8 SCC 377 . Paragraph 50 of the decision shows that this Court was concerned with the issue, whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an Arbitrator The ineligibility referred to therein, was as a result of operation of law, in that a person having an interest in the dispute or in the outcome or decision thereof, must not only be ineligible to act as an arbitrator but must also not be eligible to appoint anyone else as an arbitrator and that such person cannot and should not have any role in charting out any course to the dispute resolution by having the power to appoint an arbitrator. The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party. But, in a case where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally, the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016) and recognised by the decision of this Court in TRF Limited (2017) 8 SCC 377 19. In Voestalpine 3 , this Court dealt with independence and impartiality of the arbitrator as under:20. Independence and impartiality of the arbitrator are the hallmarks of any arbitration proceedings. Rule against bias is one of the fundamental principles of natural justice which applied to all judicial and quasi- judicial proceedings. It is for this reason that notwithstanding the fact that relationship between the parties to the arbitration and the arbitrators themselves are contractual in nature and the source of an arbitrators appointment is deduced from the agreement entered into between the parties, notwithstanding the same non-independence and non- impartiality of such arbitrator (though contractually agreed upon) would render him ineligible to conduct the arbitration. The genesis behind this rational is that even when an arbitrator is appointed in terms of contract and by the parties to the contract, he is independent of the parties. Functions and duties require him to rise above the partisan interest of the parties and not to act in, or so as to further, the particular interest of either parties. After all, the arbitrator has adjudicatory role to perform and, therefore, he must be independent of parties as well as impartial. The United Kingdom Supreme Court has beautifully highlighted this aspect in Hashwani v. Jivraj (2011) 1 WLR 1872; 2011 UKSC 40 in the following words: (WLR p. 1889, para 45)45. … the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties21. Similarly, Cour de Cassation, France, in a judgment delivered in 1972 in Consorts Ury, underlined that:an independent mind is indispensable in the exercise of judicial power, whatever the source of that power may be, and it is one of the essential qualities of an arbitrator22. Independence and impartiality are two different concepts. An arbitrator may be independent and yet, lack impartiality, or vice versa. Impartiality, as is well accepted, is a more subjective concept as compared to independence. Independence, which is more an objective concept, may, thus, be more straightforwardly ascertained by the parties at the outset of the arbitration proceedings in light of the circumstances disclosed by the arbitrator, while partiality will more likely surface during the arbitration proceedings30. Time has come to send positive signals to the international business community, in order to create healthy arbitration environment and conducive arbitration culture in this country. Further, as highlighted by the Law Commission also in its report, duty becomes more onerous in government contracts, where one of the parties to the dispute is the Government or public sector undertaking itself and the authority to appoint the arbitrator rests with it. In the instant case also, though choice is given by DMRC to the opposite party but it is limited to choose an arbitrator from the panel prepared by DMRC. It, therefore, becomes imperative to have a much broadbased panel, so that there is no misapprehension that principle of impartiality and independence would be discarded at any stage of the proceedings, specially at the stage of constitution of the Arbitral Tribunal. We, therefore, direct that DMRC shall prepare a broadbased panel on the aforesaid lines, within a period of two months from today20. In the light of the aforestated principles, the report of the Law Commission and the decision in Voestapline Schienen Gmbhthe imperatives of creating healthy arbitration environment demand that the instant application deserves acceptance23. In TRF Limited (2017) 8 SCC 377 , the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal therefrom on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for fresh consideration as is discernible from para 55 of the Judgment. In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants24. It is also clear from the Clause in the instant case that no special qualifications such as expertise in any technical field are required of an arbitrator. This was fairly accepted by the learned Senior Counsel for the respondent25. In the aforesaid circumstances, in our view a case is made out to entertain the instant application preferred by the Applicants22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:-32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG(2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case(2015) 3 SCC 800 , SCC p. 806, para 10)10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:-32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG(2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case(2015) 3 SCC 800 , SCC p. 806, para 10)10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …33. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore. | 1 | 10,049 | 2,279 | ### 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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from today. 20. In the light of the aforestated principles, the report of the Law Commission and the decision in Voestapline Schienen Gmbh , the imperatives of creating healthy arbitration environment demand that the instant application deserves acceptance. 21. The further question that arises is whether the power can be exercised by this Court under Section 11 of the Act when the appointment of an arbitrator has already been made by the respondent and whether the appellant should be left to raise challenge at an appropriate stage in terms of remedies available in law. Similar controversy was gone into by a Designated Judge of this Court in Walter Bau AG (2015) 3 SCC 800 and the discussion on the point was as under:- 9. While it is correct that in Antrix (2014) 11 SCC 560 and Pricol Ltd. (2015) 4 SCC 177 , it was opined by this Court that after appointment of an arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix (2014) 11 SCC 560 , appointment of the arbitrator, as per the ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Ltd. (2015) 4 SCC 177 . , the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the arbitrator. In the present case, the situation is otherwise. 10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by the second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. 18 may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of arbitrators by ICADR, which the parties had agreed to abide by in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non est in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd (2000) 8 SCC 151 . , is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by ICADR. The said appointment, therefore, is clearly invalid in law. 22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:- 32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG (2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case (2015) 3 SCC 800 , SCC p. 806, para 10) 10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …33. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore. 23. In TRF Limited (2017) 8 SCC 377 , the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal therefrom on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for fresh consideration as is discernible from para 55 of the Judgment. In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants. 24. It is also clear from the Clause in the instant case that no special qualifications such as expertise in any technical field are required of an arbitrator. This was fairly accepted by the learned Senior Counsel for the respondent. 25. In the aforesaid circumstances, in our view a case is made out to entertain the instant application preferred by the Applicants.
### Response:
1
### Explanation:
this aspect in Hashwani v. Jivraj (2011) 1 WLR 1872; 2011 UKSC 40 in the following words: (WLR p. 1889, para 45)45. … the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties21. Similarly, Cour de Cassation, France, in a judgment delivered in 1972 in Consorts Ury, underlined that:an independent mind is indispensable in the exercise of judicial power, whatever the source of that power may be, and it is one of the essential qualities of an arbitrator22. Independence and impartiality are two different concepts. An arbitrator may be independent and yet, lack impartiality, or vice versa. Impartiality, as is well accepted, is a more subjective concept as compared to independence. Independence, which is more an objective concept, may, thus, be more straightforwardly ascertained by the parties at the outset of the arbitration proceedings in light of the circumstances disclosed by the arbitrator, while partiality will more likely surface during the arbitration proceedings30. Time has come to send positive signals to the international business community, in order to create healthy arbitration environment and conducive arbitration culture in this country. Further, as highlighted by the Law Commission also in its report, duty becomes more onerous in government contracts, where one of the parties to the dispute is the Government or public sector undertaking itself and the authority to appoint the arbitrator rests with it. In the instant case also, though choice is given by DMRC to the opposite party but it is limited to choose an arbitrator from the panel prepared by DMRC. It, therefore, becomes imperative to have a much broadbased panel, so that there is no misapprehension that principle of impartiality and independence would be discarded at any stage of the proceedings, specially at the stage of constitution of the Arbitral Tribunal. We, therefore, direct that DMRC shall prepare a broadbased panel on the aforesaid lines, within a period of two months from today20. In the light of the aforestated principles, the report of the Law Commission and the decision in Voestapline Schienen Gmbhthe imperatives of creating healthy arbitration environment demand that the instant application deserves acceptance23. In TRF Limited (2017) 8 SCC 377 , the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal therefrom on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for fresh consideration as is discernible from para 55 of the Judgment. In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants24. It is also clear from the Clause in the instant case that no special qualifications such as expertise in any technical field are required of an arbitrator. This was fairly accepted by the learned Senior Counsel for the respondent25. In the aforesaid circumstances, in our view a case is made out to entertain the instant application preferred by the Applicants22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:-32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG(2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case(2015) 3 SCC 800 , SCC p. 806, para 10)10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:-32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG(2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case(2015) 3 SCC 800 , SCC p. 806, para 10)10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …33. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore.
|
M/s. Vaamika Island (Green Lagoon Resort) Vs. Union of India & Others | Authority is also entrusted with the power to identify ecologically sensitive areas in the CRZ and to formulate area-specific management plans for such identified areas. The Authority is also empowered to identify coastal areas highly vulnerable to erosion or degradation and formulate area-specific management plans for such identified areas. The authority is further obliged to submit the plans prepared by it to the National Coastal Zone Management Authority for examination and its approval. Various other powers have also been entrusted to KCZMA by the above mentioned notification.17. CZMP, 1995 of the State shows the entire Vettila Thuruthu as FP (Fig.1:Map No. 32A of CZMP). CZMP described FP as : another fish spawning/breeding ground and these are shallow water bodies adjoining the backwater system where certain species of fish are grown in large numbers. The 50m belt adjoining it is also demarcated as CRZ-I, since this area is low lying, it is likely to be inundated due to Sea Level Rise (SLR). Hence, the entire Vettila Thuruthu is described as CRZ-I as per Notification 1991 and, as per Notification 2011, it is described as either CRZ-I, CRZ-III or CRZ-IV. New constructions are not permitted in CRZ-I, the No Development Zone of CRZ-III and in CRZ-IV. Repairs of existing structures can be permitted in No Development Zone of CRZ-III subject to conditions for permissible activities as per the notification. Tourism activity is also not permitted in the No Development Zone of CRZ-III or CRZ-I. 18. CRZ for Kerala in CRZ 2011 also prohibits new construction within 50 mtr. from High Tide Line and only dwelling units of local communities could be repaired or re-constructed. 19. KCZMP was prepared, as already indicated, based on the guidelines of MoEF, taking care of the Maps prepared by the Survey of India (Government of India) and cadastral maps prepared by the Survey Department of Kerala Government were used as base map for preparation of CZMP of the State. The area between Low Tide Line and High Tide Line is also CRZ-I. The FPs, as already indicated, are shallow water bodies which are spawning/breeding area of fishes and hence, as per notification, they are CRZ-I. 20. CRZ 2011 has been made applicable with effect from 06.01.2011. CZMP is being prepared on CRZ 2011, at that time the plan prepared on the basis of 1991 Notification would be in force. Coastal Plan prepared on the basis of 1991 Notification, clearly shows Vettila Thuruthu as FP. We do concur with the view of the High Court that islands could be coastal stretches of river or backwater or backwater islands in Kerala are clearly covered by CRZ-I. It cannot fall under either on CRZ-III or CRZ-IV. We also fully endorse the view of the High Court that even before the Salinity Test was incorporated in the year 2002, reliance was placed on that test, on the basis of 5 ppt, which was made as per standard measurements technique in Pails per thousand. Satellite imagery is also, in our view, is one of the best scientific indicators to know, when was the construction effected in violation of CRZ which, in our view, has been correctly applied in this case.21. We, therefore, find no illegality in the Map prepared by CZMP as well as the techniques employed to ascertain works/constructions have been made in violation of CRZ 1991 as well as 2011.22. The Petitioner had effected the construction in violation of the provisions of Notifications 1991 and 2011 as well as Map 32A, so found by the High Court. Factual details of the same and where actually the portion of some of the properties of the petitioner in the Vettila Thuruthu will fall, has been elaborately dealt with by the High Court in its judgment in paragraphs 109 to 119. We notice that the High Court has dealt with the issue pointing out that so far as buildings which have been constructed by the petitioner during the currency of the notification issued in 1991 are concerned, they are clearly in violation of this notification, hence, action has to be taken for the removal of the same. The Director of Panchayat also vide letters dated 7.3.1995, 17.7.1996 directed all the Panchayats to strictly follow the provisions of CRZ Notification which it was found, not followed by granting permission. The High Court has also found on facts that reconstruction work appeared to have been done during the currency of Notification 2011 and two buildings (193/D and 193/E) were also constructed illegally. The High Court has also noticed another new construction underway. These all are factual findings which call for no interference by this Court. The High Court has clearly noticed that reconstruction work has been done contrary to the 1991 as well as 2011 Notification and the report of the Expert Committee constituted by the Kerala State Committee on Sciences Technology and Environment (KSCSTE) was accepted.23. We are of the considered view that the above direction was issued by the High Court taking into consideration the larger public interest and to save the Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. The Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognizing the socio-economic importance of this water body, it has recently been scheduled under "vulnerable wetlands to be protected" and declared as CVCA. We are of the view that the directions given by the High Court are perfectly in order in the above mentioned perspective.24. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of CRZ Notifications 1991 and 2011 are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa and Others (2004) 3 SCC 445 , wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned. | 0[ds]16. The Central Government, following the directions given by this Court as well as in exercise of its powers conferred by(1) and (3) of Section 3 of the Act, constituted KCZMA vide its notification dated 21.7.2008 which was published in the Gazette of India :Extraordinary Part II. The Authority has been entrusted with the power to examine the proposals for changes or modification in classification of CRZ areas and in CRZMP received from the State Government and to make specific recommendations to the National Coastal Zone Management Authority. It has also the power to deal with environmental issues relating to CRZ which may be referred to it by the State Government, the National Coastal Zone Management Authority or the Central Government. The Authority is also entrusted with the power to identify ecologically sensitive areas in the CRZ and to formulatemanagement plans for such identified areas. The Authority is also empowered to identify coastal areas highly vulnerable to erosion or degradation and formulatemanagement plans for such identified areas. The authority is further obliged to submit the plans prepared by it to the National Coastal Zone Management Authority for examination and its approval. Various other powers have also been entrusted to KCZMA by the above mentioned notification.17. CZMP, 1995 of the State shows the entire Vettila Thuruthu as FP (Fig.1:Map No. 32A of CZMP). CZMP described FP as : another fish spawning/breeding ground and these are shallow water bodies adjoining the backwater system where certain species of fish are grown in large numbers. The 50m belt adjoining it is also demarcated assince this area is low lying, it is likely to be inundated due to Sea Level Rise (SLR). Hence, the entire Vettila Thuruthu is described asas per Notification 1991 and, as per Notification 2011, it is described as eitherV. New constructions are not permitted inthe No Development Zone ofIV. Repairs of existing structures can be permitted in No Development Zone ofsubject to conditions for permissible activities as per the notification. Tourism activity is also not permitted inthe No Development Zone ofKCZMP was prepared, as already indicated, based on the guidelines of MoEF, taking care of the Maps prepared by the Survey of India (Government of India) and cadastral maps prepared by the Survey Department of Kerala Government were used as base map for preparation of CZMP of the State. The area between Low Tide Line and High Tide Line is alsoCRZ 2011 has been made applicable with effect from 06.01.2011. CZMP is being prepared on CRZ 2011, at that time the plan prepared on the basis of 1991 Notification would be in force. Coastal Plan prepared on the basis of 1991 Notification, clearly shows Vettila Thuruthu as FP. We do concur with the view of the High Court that islands could be coastal stretches of river or backwater or backwater islands in Kerala are clearly covered byIt cannot fall under either onV. We also fully endorse the view of the High Court that even before the Salinity Test was incorporated in the year 2002, reliance was placed on that test, on the basis of 5 ppt, which was made as per standard measurements technique in Pails per thousand. Satellite imagery is also, in our view, is one of the best scientific indicators to know, when was the construction effected in violation of CRZ which, in our view, has been correctly applied in this case.21. We, therefore, find no illegality in the Map prepared by CZMP as well as the techniques employed to ascertain works/constructions have been made in violation of CRZ 1991 as well as 2011.22. The Petitioner had effected the construction in violation of the provisions of Notifications 1991 and 2011 as well as Map 32A, so found by the High Court. Factual details of the same and where actually the portion of some of the properties of the petitioner in the Vettila Thuruthu will fall, has been elaborately dealt with by the High Court in its judgment in paragraphs 109 to 119. We notice that the High Court has dealt with the issue pointing out that so far as buildings which have been constructed by the petitioner during the currency of the notification issued in 1991 are concerned, they are clearly in violation of this notification, hence, action has to be taken for the removal of the same. The Director of Panchayat also vide letters dated 7.3.1995, 17.7.1996 directed all the Panchayats to strictly follow the provisions of CRZ Notification which it was found, not followed by granting permission. The High Court has also found on facts that reconstruction work appeared to have been done during the currency of Notification 2011 and two buildings (193/D and 193/E) were also constructed illegally. The High Court has also noticed another new construction underway. These all are factual findings which call for no interference by this Court. The High Court has clearly noticed that reconstruction work has been done contrary to the 1991 as well as 2011 Notification and the report of the Expert Committee constituted by the Kerala State Committee on Sciences Technology and Environment (KSCSTE) was accepted.23. We are of the considered view that the above direction was issued by the High Court taking into consideration the larger public interest and to save the Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. The Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognizing theimportance of this water body, it has recently been scheduled under "vulnerable wetlands to be protected" and declared as CVCA. We are of the view that the directions given by the High Court are perfectly in order in the above mentioned perspective.24. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of CRZ Notifications 1991 and 2011 are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa and Others (2004) 3 SCC 445 , wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned. | 0 | 3,381 | 1,131 | ### 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:
Authority is also entrusted with the power to identify ecologically sensitive areas in the CRZ and to formulate area-specific management plans for such identified areas. The Authority is also empowered to identify coastal areas highly vulnerable to erosion or degradation and formulate area-specific management plans for such identified areas. The authority is further obliged to submit the plans prepared by it to the National Coastal Zone Management Authority for examination and its approval. Various other powers have also been entrusted to KCZMA by the above mentioned notification.17. CZMP, 1995 of the State shows the entire Vettila Thuruthu as FP (Fig.1:Map No. 32A of CZMP). CZMP described FP as : another fish spawning/breeding ground and these are shallow water bodies adjoining the backwater system where certain species of fish are grown in large numbers. The 50m belt adjoining it is also demarcated as CRZ-I, since this area is low lying, it is likely to be inundated due to Sea Level Rise (SLR). Hence, the entire Vettila Thuruthu is described as CRZ-I as per Notification 1991 and, as per Notification 2011, it is described as either CRZ-I, CRZ-III or CRZ-IV. New constructions are not permitted in CRZ-I, the No Development Zone of CRZ-III and in CRZ-IV. Repairs of existing structures can be permitted in No Development Zone of CRZ-III subject to conditions for permissible activities as per the notification. Tourism activity is also not permitted in the No Development Zone of CRZ-III or CRZ-I. 18. CRZ for Kerala in CRZ 2011 also prohibits new construction within 50 mtr. from High Tide Line and only dwelling units of local communities could be repaired or re-constructed. 19. KCZMP was prepared, as already indicated, based on the guidelines of MoEF, taking care of the Maps prepared by the Survey of India (Government of India) and cadastral maps prepared by the Survey Department of Kerala Government were used as base map for preparation of CZMP of the State. The area between Low Tide Line and High Tide Line is also CRZ-I. The FPs, as already indicated, are shallow water bodies which are spawning/breeding area of fishes and hence, as per notification, they are CRZ-I. 20. CRZ 2011 has been made applicable with effect from 06.01.2011. CZMP is being prepared on CRZ 2011, at that time the plan prepared on the basis of 1991 Notification would be in force. Coastal Plan prepared on the basis of 1991 Notification, clearly shows Vettila Thuruthu as FP. We do concur with the view of the High Court that islands could be coastal stretches of river or backwater or backwater islands in Kerala are clearly covered by CRZ-I. It cannot fall under either on CRZ-III or CRZ-IV. We also fully endorse the view of the High Court that even before the Salinity Test was incorporated in the year 2002, reliance was placed on that test, on the basis of 5 ppt, which was made as per standard measurements technique in Pails per thousand. Satellite imagery is also, in our view, is one of the best scientific indicators to know, when was the construction effected in violation of CRZ which, in our view, has been correctly applied in this case.21. We, therefore, find no illegality in the Map prepared by CZMP as well as the techniques employed to ascertain works/constructions have been made in violation of CRZ 1991 as well as 2011.22. The Petitioner had effected the construction in violation of the provisions of Notifications 1991 and 2011 as well as Map 32A, so found by the High Court. Factual details of the same and where actually the portion of some of the properties of the petitioner in the Vettila Thuruthu will fall, has been elaborately dealt with by the High Court in its judgment in paragraphs 109 to 119. We notice that the High Court has dealt with the issue pointing out that so far as buildings which have been constructed by the petitioner during the currency of the notification issued in 1991 are concerned, they are clearly in violation of this notification, hence, action has to be taken for the removal of the same. The Director of Panchayat also vide letters dated 7.3.1995, 17.7.1996 directed all the Panchayats to strictly follow the provisions of CRZ Notification which it was found, not followed by granting permission. The High Court has also found on facts that reconstruction work appeared to have been done during the currency of Notification 2011 and two buildings (193/D and 193/E) were also constructed illegally. The High Court has also noticed another new construction underway. These all are factual findings which call for no interference by this Court. The High Court has clearly noticed that reconstruction work has been done contrary to the 1991 as well as 2011 Notification and the report of the Expert Committee constituted by the Kerala State Committee on Sciences Technology and Environment (KSCSTE) was accepted.23. We are of the considered view that the above direction was issued by the High Court taking into consideration the larger public interest and to save the Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. The Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognizing the socio-economic importance of this water body, it has recently been scheduled under "vulnerable wetlands to be protected" and declared as CVCA. We are of the view that the directions given by the High Court are perfectly in order in the above mentioned perspective.24. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of CRZ Notifications 1991 and 2011 are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa and Others (2004) 3 SCC 445 , wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned.
### Response:
0
### Explanation:
notification dated 21.7.2008 which was published in the Gazette of India :Extraordinary Part II. The Authority has been entrusted with the power to examine the proposals for changes or modification in classification of CRZ areas and in CRZMP received from the State Government and to make specific recommendations to the National Coastal Zone Management Authority. It has also the power to deal with environmental issues relating to CRZ which may be referred to it by the State Government, the National Coastal Zone Management Authority or the Central Government. The Authority is also entrusted with the power to identify ecologically sensitive areas in the CRZ and to formulatemanagement plans for such identified areas. The Authority is also empowered to identify coastal areas highly vulnerable to erosion or degradation and formulatemanagement plans for such identified areas. The authority is further obliged to submit the plans prepared by it to the National Coastal Zone Management Authority for examination and its approval. Various other powers have also been entrusted to KCZMA by the above mentioned notification.17. CZMP, 1995 of the State shows the entire Vettila Thuruthu as FP (Fig.1:Map No. 32A of CZMP). CZMP described FP as : another fish spawning/breeding ground and these are shallow water bodies adjoining the backwater system where certain species of fish are grown in large numbers. The 50m belt adjoining it is also demarcated assince this area is low lying, it is likely to be inundated due to Sea Level Rise (SLR). Hence, the entire Vettila Thuruthu is described asas per Notification 1991 and, as per Notification 2011, it is described as eitherV. New constructions are not permitted inthe No Development Zone ofIV. Repairs of existing structures can be permitted in No Development Zone ofsubject to conditions for permissible activities as per the notification. Tourism activity is also not permitted inthe No Development Zone ofKCZMP was prepared, as already indicated, based on the guidelines of MoEF, taking care of the Maps prepared by the Survey of India (Government of India) and cadastral maps prepared by the Survey Department of Kerala Government were used as base map for preparation of CZMP of the State. The area between Low Tide Line and High Tide Line is alsoCRZ 2011 has been made applicable with effect from 06.01.2011. CZMP is being prepared on CRZ 2011, at that time the plan prepared on the basis of 1991 Notification would be in force. Coastal Plan prepared on the basis of 1991 Notification, clearly shows Vettila Thuruthu as FP. We do concur with the view of the High Court that islands could be coastal stretches of river or backwater or backwater islands in Kerala are clearly covered byIt cannot fall under either onV. We also fully endorse the view of the High Court that even before the Salinity Test was incorporated in the year 2002, reliance was placed on that test, on the basis of 5 ppt, which was made as per standard measurements technique in Pails per thousand. Satellite imagery is also, in our view, is one of the best scientific indicators to know, when was the construction effected in violation of CRZ which, in our view, has been correctly applied in this case.21. We, therefore, find no illegality in the Map prepared by CZMP as well as the techniques employed to ascertain works/constructions have been made in violation of CRZ 1991 as well as 2011.22. The Petitioner had effected the construction in violation of the provisions of Notifications 1991 and 2011 as well as Map 32A, so found by the High Court. Factual details of the same and where actually the portion of some of the properties of the petitioner in the Vettila Thuruthu will fall, has been elaborately dealt with by the High Court in its judgment in paragraphs 109 to 119. We notice that the High Court has dealt with the issue pointing out that so far as buildings which have been constructed by the petitioner during the currency of the notification issued in 1991 are concerned, they are clearly in violation of this notification, hence, action has to be taken for the removal of the same. The Director of Panchayat also vide letters dated 7.3.1995, 17.7.1996 directed all the Panchayats to strictly follow the provisions of CRZ Notification which it was found, not followed by granting permission. The High Court has also found on facts that reconstruction work appeared to have been done during the currency of Notification 2011 and two buildings (193/D and 193/E) were also constructed illegally. The High Court has also noticed another new construction underway. These all are factual findings which call for no interference by this Court. The High Court has clearly noticed that reconstruction work has been done contrary to the 1991 as well as 2011 Notification and the report of the Expert Committee constituted by the Kerala State Committee on Sciences Technology and Environment (KSCSTE) was accepted.23. We are of the considered view that the above direction was issued by the High Court taking into consideration the larger public interest and to save the Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. The Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognizing theimportance of this water body, it has recently been scheduled under "vulnerable wetlands to be protected" and declared as CVCA. We are of the view that the directions given by the High Court are perfectly in order in the above mentioned perspective.24. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of CRZ Notifications 1991 and 2011 are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa and Others (2004) 3 SCC 445 , wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned.
|
Babaji Kondaji Garad Etc Vs. Nasik Merchants | attention to the circular dated 1st February, 1979, issued by the District Deputy Registrar of Co-operative Societies at Nasik in which he pointed out that the committee should co-opt required number of members on the committee from amongst the persons entitled to representation on the reserved seats. The specified societies w ere also requested to amend the bye-laws as early as possible. He also drew our attention to a letter dated June 4, 1979 addressed to the Nasik Merchant Co-operative Society Bank Ltd, by the District Deputy Registrar, Nasik pointing out therein that if the bye-law is not amended the reserved seats should be filled in by co-option and that the compliance should be reported before March 31, 1979. He again requested the Bank to amend the bye-laws to bring them in conformity with the requirements of Sec. 73B. Relying on the unamended bye-law, rule 61 and the aforementioned two documents, it was submitted that the Government itself did not consider election to be the only mode or method of filling in the reserved seats a nd persistently requested the Bank to co-opt necessary number of members to fill in the reserved seats, and therefore, it is not proper to invalidate the whole process of election. We remain unconvinced.Sec. 73B provides a legislative mandate. Rule 61 has a status of subsidiary legislation or delegated legislation. Bye-law of a co-operative society can at best have the status of an Article of Association of a company governed by the Companies Act, 1956 and as held by this Court in Co- operative Central Bank Ltd. and others v. Additional Industrial Tribunal, Andhra Pradesh and Others the bye-laws of a co-operative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law. Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to f irmly state that the statute prevails over subordinate legislation and the bye-law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with. Further the opinion of the Deputy Registrar as expressed in his circular dated February 1, 1979 and his letter dated June 4, 1979 has no relevance because his lake of knowledge or misunderstanding of law as expressed in his opinion has no relevance. The High Court relying upon the aforementioned two documents observed as under:"There is no inconsistency between Section 73B and the bye-laws because even the Government has construed Section 73B in such manner that even though the bye-laws are not amended and reserved seats remain unfilled by election the same can be filled up by co-option."9. With respect, we find it difficult to subscribe to this untenable approach that a view of law or a legal provision expressed by a Government Officer can afford reliable basis or even guidance in the matter of construction of a legislative measure. It is the function of the Court to construe legislative measures and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant. Nor can the Court abdicate in favour of such opinion.The provision contained in Chapter XI-A applies to election to the committees of specified societies categorised in Sec. 73B. Sec. 144-C requires the Collector to draw an election programme and arrange for conducting the election or under his control by the Returning Officer according to the programme. Now the election programme has to be published. The programme therefore, must in order to comply with legal formality show whether any of the seats to be filled in are reserved and specify the class in whose favour reservation has been made, so as to give notice to persons eligible for contesting election to reserved seats. This becomes manifestly clear from the form prescribed for filling in the nomination paper being Form No. 2 appended to the rules. In the case of reserved seats a further declaration has to be made in the nomination form that the candidate belongs to Scheduled Castes or Scheduled Tribes or Vimukta Jati or the weaker section candidate. And this declaration has to be signed by the candidate himself. Now therefore, the Collector, a statutory authority charged with a duty to hold election according to the Act, must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is ma de. This will be notice to the members eligible for contesting election to reserved seats so that they may fill in their nomination. There is not even a whisper in the election programme whether any of the seats were reserved. The omission is glaring and fatal. As pointed out earlier, election has to be held to form the committee. Sec. 73 requires the Collector to hold election in accordance with the Act including Sec. 73B. The failure to hold election in accordance with the Act including Se c. 73B would vitiate the whole election programme from commencement till the end. It would all the more be so because the failure to hold election according to the provisions of the Act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme. One can safely conclude that the election is held in violation of Sec. 73B. Therefore, in our opinion, the High Court was in error in upholding the election, which is ex facie illegal, invalid and contrary to law.Accordingly both these appeals succeed Civil Appeal arising from S.L.P. No. 7732/83 is allowed and the decision of the High Court is quashed and set aside and the one rendered by the Additional Commissioner is restored.10 | 1[ds]Alternatively, one can bring in Hydons test more often noticed by this Court that in order to arrive at true intendment of a statute, the Court should pose to itself the questions; (1) what was the situation prior to the provision under construction, (2) what mischief or defect was noticed before introducing the provision, (3) whether it was remedial and (4) the reason for the remedy.Applying this test, the same result would follow inasmuch as looking to the position and the plight of Scheduled Castes and Scheduled Tribes and the weaker section of the members of a society, though they would be subject to the dictate of the society they had no voice in the managerial councils and that to raise the stature and status of such persons so as to bring them on the footing of equality with other segments of the society, reservation was provided in the absence of which those in whose favour reservation was made could not get elected t o the decision making bodies. While ascertaining the true canon of construction applicable to Sec. 73B, these aspects must stare into our face.Before going in search of any external aids of construction, let us look at the language employed by the Legislature because no canon of construction can be said to be more firmly established than this that the Legislature uses appropriate language to manifest its intention. No controversy was raised with regard to the power of Legislature to prescribe reservation of seats in the committee in which the management of the society vests. The use of the expression shall in Sec. 73B clearly mandates obligation torespect, we find it difficult to subscribe to this untenable approach that a view of law or a legal provision expressed by a Government Officer can afford reliable basis or even guidance in the matter of construction of a legislative measure. It is the function of the Court to construe legislative measures and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant. Nor can the Court abdicate in favour of such opinion.The provision contained in Chapter XI-A applies to election to the committees of specified societies categorised in Sec. 73B. Sec. 144-C requires the Collector to draw an election programme and arrange for conducting the election or under his control by the Returning Officer according to the programme. Now the election programme has to be published. The programme therefore, must in order to comply with legal formality show whether any of the seats to be filled in are reserved and specify the class in whose favour reservation has been made, so as to give notice to persons eligible for contesting election to reserved seats. This becomes manifestly clear from the form prescribed for filling in the nomination paper being Form No. 2 appended to the rules. In the case of reserved seats a further declaration has to be made in the nomination form that the candidate belongs to Scheduled Castes or Scheduled Tribes or Vimukta Jati or the weaker section candidate. And this declaration has to be signed by the candidate himself. Now therefore, the Collector, a statutory authority charged with a duty to hold election according to the Act, must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is ma de. This will be notice to the members eligible for contesting election to reserved seats so that they may fill in their nomination. There is not even a whisper in the election programme whether any of the seats were reserved. The omission is glaring and fatal. As pointed out earlier, election has to be held to form the committee. Sec. 73 requires the Collector to hold election in accordance with the Act including Sec. 73B. The failure to hold election in accordance with the Act including Se c. 73B would vitiate the whole election programme from commencement till the end. It would all the more be so because the failure to hold election according to the provisions of the Act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme. One can safely conclude that the election is held in violation of Sec. 73B. Therefore, in our opinion, the High Court was in error in upholding the election, which is ex facie illegal, invalid and contrary to law.Accordingly both these appeals succeed Civil Appeal arising from S.L.P. No. 7732/83 is allowed and the decision of the High Court is quashed and set aside and the one rendered by the Additional Commissioner is restored. | 1 | 5,546 | 848 | ### 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:
attention to the circular dated 1st February, 1979, issued by the District Deputy Registrar of Co-operative Societies at Nasik in which he pointed out that the committee should co-opt required number of members on the committee from amongst the persons entitled to representation on the reserved seats. The specified societies w ere also requested to amend the bye-laws as early as possible. He also drew our attention to a letter dated June 4, 1979 addressed to the Nasik Merchant Co-operative Society Bank Ltd, by the District Deputy Registrar, Nasik pointing out therein that if the bye-law is not amended the reserved seats should be filled in by co-option and that the compliance should be reported before March 31, 1979. He again requested the Bank to amend the bye-laws to bring them in conformity with the requirements of Sec. 73B. Relying on the unamended bye-law, rule 61 and the aforementioned two documents, it was submitted that the Government itself did not consider election to be the only mode or method of filling in the reserved seats a nd persistently requested the Bank to co-opt necessary number of members to fill in the reserved seats, and therefore, it is not proper to invalidate the whole process of election. We remain unconvinced.Sec. 73B provides a legislative mandate. Rule 61 has a status of subsidiary legislation or delegated legislation. Bye-law of a co-operative society can at best have the status of an Article of Association of a company governed by the Companies Act, 1956 and as held by this Court in Co- operative Central Bank Ltd. and others v. Additional Industrial Tribunal, Andhra Pradesh and Others the bye-laws of a co-operative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law. Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to f irmly state that the statute prevails over subordinate legislation and the bye-law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with. Further the opinion of the Deputy Registrar as expressed in his circular dated February 1, 1979 and his letter dated June 4, 1979 has no relevance because his lake of knowledge or misunderstanding of law as expressed in his opinion has no relevance. The High Court relying upon the aforementioned two documents observed as under:"There is no inconsistency between Section 73B and the bye-laws because even the Government has construed Section 73B in such manner that even though the bye-laws are not amended and reserved seats remain unfilled by election the same can be filled up by co-option."9. With respect, we find it difficult to subscribe to this untenable approach that a view of law or a legal provision expressed by a Government Officer can afford reliable basis or even guidance in the matter of construction of a legislative measure. It is the function of the Court to construe legislative measures and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant. Nor can the Court abdicate in favour of such opinion.The provision contained in Chapter XI-A applies to election to the committees of specified societies categorised in Sec. 73B. Sec. 144-C requires the Collector to draw an election programme and arrange for conducting the election or under his control by the Returning Officer according to the programme. Now the election programme has to be published. The programme therefore, must in order to comply with legal formality show whether any of the seats to be filled in are reserved and specify the class in whose favour reservation has been made, so as to give notice to persons eligible for contesting election to reserved seats. This becomes manifestly clear from the form prescribed for filling in the nomination paper being Form No. 2 appended to the rules. In the case of reserved seats a further declaration has to be made in the nomination form that the candidate belongs to Scheduled Castes or Scheduled Tribes or Vimukta Jati or the weaker section candidate. And this declaration has to be signed by the candidate himself. Now therefore, the Collector, a statutory authority charged with a duty to hold election according to the Act, must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is ma de. This will be notice to the members eligible for contesting election to reserved seats so that they may fill in their nomination. There is not even a whisper in the election programme whether any of the seats were reserved. The omission is glaring and fatal. As pointed out earlier, election has to be held to form the committee. Sec. 73 requires the Collector to hold election in accordance with the Act including Sec. 73B. The failure to hold election in accordance with the Act including Se c. 73B would vitiate the whole election programme from commencement till the end. It would all the more be so because the failure to hold election according to the provisions of the Act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme. One can safely conclude that the election is held in violation of Sec. 73B. Therefore, in our opinion, the High Court was in error in upholding the election, which is ex facie illegal, invalid and contrary to law.Accordingly both these appeals succeed Civil Appeal arising from S.L.P. No. 7732/83 is allowed and the decision of the High Court is quashed and set aside and the one rendered by the Additional Commissioner is restored.10
### Response:
1
### Explanation:
Alternatively, one can bring in Hydons test more often noticed by this Court that in order to arrive at true intendment of a statute, the Court should pose to itself the questions; (1) what was the situation prior to the provision under construction, (2) what mischief or defect was noticed before introducing the provision, (3) whether it was remedial and (4) the reason for the remedy.Applying this test, the same result would follow inasmuch as looking to the position and the plight of Scheduled Castes and Scheduled Tribes and the weaker section of the members of a society, though they would be subject to the dictate of the society they had no voice in the managerial councils and that to raise the stature and status of such persons so as to bring them on the footing of equality with other segments of the society, reservation was provided in the absence of which those in whose favour reservation was made could not get elected t o the decision making bodies. While ascertaining the true canon of construction applicable to Sec. 73B, these aspects must stare into our face.Before going in search of any external aids of construction, let us look at the language employed by the Legislature because no canon of construction can be said to be more firmly established than this that the Legislature uses appropriate language to manifest its intention. No controversy was raised with regard to the power of Legislature to prescribe reservation of seats in the committee in which the management of the society vests. The use of the expression shall in Sec. 73B clearly mandates obligation torespect, we find it difficult to subscribe to this untenable approach that a view of law or a legal provision expressed by a Government Officer can afford reliable basis or even guidance in the matter of construction of a legislative measure. It is the function of the Court to construe legislative measures and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant. Nor can the Court abdicate in favour of such opinion.The provision contained in Chapter XI-A applies to election to the committees of specified societies categorised in Sec. 73B. Sec. 144-C requires the Collector to draw an election programme and arrange for conducting the election or under his control by the Returning Officer according to the programme. Now the election programme has to be published. The programme therefore, must in order to comply with legal formality show whether any of the seats to be filled in are reserved and specify the class in whose favour reservation has been made, so as to give notice to persons eligible for contesting election to reserved seats. This becomes manifestly clear from the form prescribed for filling in the nomination paper being Form No. 2 appended to the rules. In the case of reserved seats a further declaration has to be made in the nomination form that the candidate belongs to Scheduled Castes or Scheduled Tribes or Vimukta Jati or the weaker section candidate. And this declaration has to be signed by the candidate himself. Now therefore, the Collector, a statutory authority charged with a duty to hold election according to the Act, must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is ma de. This will be notice to the members eligible for contesting election to reserved seats so that they may fill in their nomination. There is not even a whisper in the election programme whether any of the seats were reserved. The omission is glaring and fatal. As pointed out earlier, election has to be held to form the committee. Sec. 73 requires the Collector to hold election in accordance with the Act including Sec. 73B. The failure to hold election in accordance with the Act including Se c. 73B would vitiate the whole election programme from commencement till the end. It would all the more be so because the failure to hold election according to the provisions of the Act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme. One can safely conclude that the election is held in violation of Sec. 73B. Therefore, in our opinion, the High Court was in error in upholding the election, which is ex facie illegal, invalid and contrary to law.Accordingly both these appeals succeed Civil Appeal arising from S.L.P. No. 7732/83 is allowed and the decision of the High Court is quashed and set aside and the one rendered by the Additional Commissioner is restored.
|
Adesh Kaur Vs. Eicher Motors Limited and Ors | proceedings, has not appeared either before the Tribunal or before the Appellate Tribunal and has not appeared before us. The Appellant, sometime in 2014, came to know through the Company Secretary of Respondent No. 1 that duplicate share certificates had been given to somebody else who had subsequently transferred them to a third party. As soon as she became aware of the fraud that was perpetrated on her, the Appellant requested the Company to issue revalidated fresh share certificates for the said 903 equity shares on 17.09.2014. Since this was not done, despite repeated reminders for the same, a Company Petition was filed on 31.07.2015 before the Company Law Board, which was then taken up under the Amended Act by the National Company Law Tribunal. In a significant order that was passed by the NCLT on 09.11.2016, the NCLT recorded that it was acknowledged, both by the Company as well as by the SEBI, that procedural aspects and due care were not adhered to in the process of issuance of duplicate shares, as otherwise such fraud would easily have been unearthed. In the order passed by the NCLT, the NCLT adverted to the aforesaid facts and afforded relief to the Appellant in the following terms: The objection of Respondent No. 1 that the case in hand cannot be adjudicated by the Tribunal is a frivolous attempt to escape any liability and or grant relief to the Petitioner. This Bench fails to understand why the Petitioner should resort to a civil court in order to prove her title. Apart from her oral testimony and her original share certificates, there is little else to be adduced in evidence even in a Civil Suit. She has her original certificates in hand. The Respondents are aware of the fraudulent acts perpetuated on her and have even initiated criminal proceedings. There is no reason for the Petitioner to be deprived of her assets for the outcome of the criminal investigation or wait for the criminal to be brought to book. Her documents and her entitlement are not denied to by the Respondents. Under such circumstances, vague denial to escape any liability and to suggest that the Petitioner initiates a Civil Suit is viewed as an attempt not to redress the grievance which has primarily arisen out of the fraud played by the employees of the Respondent Company or their Agents. Apart from guidelines of Respondent No. 3 that unequivocally make the Respondent Company liable for the acts of their Register cum Share Transfer Agents, the law on the point is clear that the Principals are liable for the acts of their agents. 4. The NCLT then went on to state that the original share certificates, which were still in physical form with the Appellant, could get demated after due confirmation from the register which would be carried out pursuant to the aforesaid order. In appeal to the Appellate Tribunal, the Appellate Tribunal referred to the fact that a criminal complaint and SEBI investigation were both pending, as a result of which it would not be correct for the Tribunal to exercise its powers to rectify the register Under Section 59 of the Companies Act. The aforesaid judgment of the NCLT was, therefore, set-aside and the Appellant was relegated to a suit. 5. Shri K.V. Vishwanathan, learned senior appearing for the Appellant, has commended for our acceptance the order of NCLT, together with its reasoning. Learned senior Counsel has stated that there is really no contest in the present proceedings inasmuch as Respondent No. 8, who would be affected by the NCLT order, has chosen not to appear in the proceedings throughout. He has also referred to and relied upon a RTI Circular No. 1 : dated 09.05.2001 and the fact that SEBI has, in its application to delete itself from the array of parties stated, on 20.05.2016, that Respondent No. 2 has issued duplicate shares without following the proper procedure and without exercising due care and diligence. 6. Shri Pratap Venugopal, learned Counsel appearing on behalf of SEBI reiterates this position and also agrees with Shri Vishwanathan that the NCLT order should be reinstated. 7. Shri Shyam Divan, learned senior Counsel appearing for the Company, when faced with the fact that there is no real contest in the present case, has further submitted that this Court should be careful in reinstating the Tribunals order inasmuch as it is not at all clear as to whether Respondent No. 8 has, in fact, been entered on the register or not. It is his further submission that since the shares are now demated, it is not his client that should be directed to put the Appellant back on the share register but the concerned depository. 8. We are of the view that the Tribunal was absolutely correct in not relegating the Appellant to any further proceedings inasmuch this is an open and shut case of fraud in which the Appellant has been the victim, and Respondent No. 2 the perpetrator. 9. Equally, it is clear that the due procedure that has been outlined in paragraph 23 of the RTI Circular dated 09.05.2001 has not been followed. When the duplicate shares were issued, stock exchanges were not informed and neither was an advertisement in a widely circulated newspaper issued as the value of the shares were far greater than Rs. 10,000/-. 10. We are, therefore, of the view that the Appellate Tribunal in relegating the Appellant to a further proceeding was not correct. We, therefore, set-aside the Appellate Tribunals order and reinstate that of the Tribunal dated 20.03.2017. It goes without saying that if Respondent No. 8 does not happen to be on the register at all, then there would be no difficulty whatsoever in restoring the Appellant back to its original position. Even if Respondent No. 8 has been entered on the Register, his name will have to be deleted in view of the fact that the transfer to him has been declared to be void in law. | 1[ds]8. We are of the view that the Tribunal was absolutely correct in not relegating the Appellant to any further proceedings inasmuch this is an open and shut case of fraud in which the Appellant has been the victim, and Respondent No. 2 the perpetrator9. Equally, it is clear that the due procedure that has been outlined in paragraph 23 of the RTI Circular dated 09.05.2001 has not been followed. When the duplicate shares were issued, stock exchanges were not informed and neither was an advertisement in a widely circulated newspaper issued as the value of the shares were far greater than Rs. 10,000/-10. We are, therefore, of the view that the Appellate Tribunal in relegating the Appellant to a further proceeding was not correct. We, therefore, set-aside the Appellate Tribunals order and reinstate that of the Tribunal dated 20.03.2017. It goes without saying that if Respondent No. 8 does not happen to be on the register at all, then there would be no difficulty whatsoever in restoring the Appellant back to its original position. Even if Respondent No. 8 has been entered on the Register, his name will have to be deleted in view of the fact that the transfer to him has been declared to be void in law. | 1 | 1,337 | 236 | ### 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:
proceedings, has not appeared either before the Tribunal or before the Appellate Tribunal and has not appeared before us. The Appellant, sometime in 2014, came to know through the Company Secretary of Respondent No. 1 that duplicate share certificates had been given to somebody else who had subsequently transferred them to a third party. As soon as she became aware of the fraud that was perpetrated on her, the Appellant requested the Company to issue revalidated fresh share certificates for the said 903 equity shares on 17.09.2014. Since this was not done, despite repeated reminders for the same, a Company Petition was filed on 31.07.2015 before the Company Law Board, which was then taken up under the Amended Act by the National Company Law Tribunal. In a significant order that was passed by the NCLT on 09.11.2016, the NCLT recorded that it was acknowledged, both by the Company as well as by the SEBI, that procedural aspects and due care were not adhered to in the process of issuance of duplicate shares, as otherwise such fraud would easily have been unearthed. In the order passed by the NCLT, the NCLT adverted to the aforesaid facts and afforded relief to the Appellant in the following terms: The objection of Respondent No. 1 that the case in hand cannot be adjudicated by the Tribunal is a frivolous attempt to escape any liability and or grant relief to the Petitioner. This Bench fails to understand why the Petitioner should resort to a civil court in order to prove her title. Apart from her oral testimony and her original share certificates, there is little else to be adduced in evidence even in a Civil Suit. She has her original certificates in hand. The Respondents are aware of the fraudulent acts perpetuated on her and have even initiated criminal proceedings. There is no reason for the Petitioner to be deprived of her assets for the outcome of the criminal investigation or wait for the criminal to be brought to book. Her documents and her entitlement are not denied to by the Respondents. Under such circumstances, vague denial to escape any liability and to suggest that the Petitioner initiates a Civil Suit is viewed as an attempt not to redress the grievance which has primarily arisen out of the fraud played by the employees of the Respondent Company or their Agents. Apart from guidelines of Respondent No. 3 that unequivocally make the Respondent Company liable for the acts of their Register cum Share Transfer Agents, the law on the point is clear that the Principals are liable for the acts of their agents. 4. The NCLT then went on to state that the original share certificates, which were still in physical form with the Appellant, could get demated after due confirmation from the register which would be carried out pursuant to the aforesaid order. In appeal to the Appellate Tribunal, the Appellate Tribunal referred to the fact that a criminal complaint and SEBI investigation were both pending, as a result of which it would not be correct for the Tribunal to exercise its powers to rectify the register Under Section 59 of the Companies Act. The aforesaid judgment of the NCLT was, therefore, set-aside and the Appellant was relegated to a suit. 5. Shri K.V. Vishwanathan, learned senior appearing for the Appellant, has commended for our acceptance the order of NCLT, together with its reasoning. Learned senior Counsel has stated that there is really no contest in the present proceedings inasmuch as Respondent No. 8, who would be affected by the NCLT order, has chosen not to appear in the proceedings throughout. He has also referred to and relied upon a RTI Circular No. 1 : dated 09.05.2001 and the fact that SEBI has, in its application to delete itself from the array of parties stated, on 20.05.2016, that Respondent No. 2 has issued duplicate shares without following the proper procedure and without exercising due care and diligence. 6. Shri Pratap Venugopal, learned Counsel appearing on behalf of SEBI reiterates this position and also agrees with Shri Vishwanathan that the NCLT order should be reinstated. 7. Shri Shyam Divan, learned senior Counsel appearing for the Company, when faced with the fact that there is no real contest in the present case, has further submitted that this Court should be careful in reinstating the Tribunals order inasmuch as it is not at all clear as to whether Respondent No. 8 has, in fact, been entered on the register or not. It is his further submission that since the shares are now demated, it is not his client that should be directed to put the Appellant back on the share register but the concerned depository. 8. We are of the view that the Tribunal was absolutely correct in not relegating the Appellant to any further proceedings inasmuch this is an open and shut case of fraud in which the Appellant has been the victim, and Respondent No. 2 the perpetrator. 9. Equally, it is clear that the due procedure that has been outlined in paragraph 23 of the RTI Circular dated 09.05.2001 has not been followed. When the duplicate shares were issued, stock exchanges were not informed and neither was an advertisement in a widely circulated newspaper issued as the value of the shares were far greater than Rs. 10,000/-. 10. We are, therefore, of the view that the Appellate Tribunal in relegating the Appellant to a further proceeding was not correct. We, therefore, set-aside the Appellate Tribunals order and reinstate that of the Tribunal dated 20.03.2017. It goes without saying that if Respondent No. 8 does not happen to be on the register at all, then there would be no difficulty whatsoever in restoring the Appellant back to its original position. Even if Respondent No. 8 has been entered on the Register, his name will have to be deleted in view of the fact that the transfer to him has been declared to be void in law.
### Response:
1
### Explanation:
8. We are of the view that the Tribunal was absolutely correct in not relegating the Appellant to any further proceedings inasmuch this is an open and shut case of fraud in which the Appellant has been the victim, and Respondent No. 2 the perpetrator9. Equally, it is clear that the due procedure that has been outlined in paragraph 23 of the RTI Circular dated 09.05.2001 has not been followed. When the duplicate shares were issued, stock exchanges were not informed and neither was an advertisement in a widely circulated newspaper issued as the value of the shares were far greater than Rs. 10,000/-10. We are, therefore, of the view that the Appellate Tribunal in relegating the Appellant to a further proceeding was not correct. We, therefore, set-aside the Appellate Tribunals order and reinstate that of the Tribunal dated 20.03.2017. It goes without saying that if Respondent No. 8 does not happen to be on the register at all, then there would be no difficulty whatsoever in restoring the Appellant back to its original position. Even if Respondent No. 8 has been entered on the Register, his name will have to be deleted in view of the fact that the transfer to him has been declared to be void in law.
|
Lal Singh Vs. State Of Gujarat | of PW128, PW132 and PW133. PW128 Satishchandra Rajnarayanlal, who was S.P., CBI II, Punjab Cell, at New Delhi in 1992 stated that he registered the offence R.C.6-SII/92. He recorded the confessional statements of A1 Lal Singh Ex.620 and A3 Tahir Jamal Ex.618 alongwith other accused. Before recording confessional statements, he ascertained from every accused whether they were voluntarily ready to give confessional statements. Necessary questions were put to them and time was given to them to think over the matter. After being satisfied that they were willing to give voluntary confessional statements, he recorded their confessional statements. PW132 Padamchandra Laxmichandra Sharma, who was SP CBI SIC II at the relevant time stated that when he took over the charge of this case RC.6.(S)/92 from Mr. Satishchandra, this case was on the last phase. Dy.S.P. CBI, D.P. Singh (PW136) had produced A2 Mohd. Sharief and A20 Shoaib Mukhtiar before him on 8.7.1993 and 6.2.1994 for recording their voluntary confessional statement, which are Ex.650 and Ex.654 respectively. Before recording their statements, he warned them of the consequences of making confessional statements and further gave them time to think over the matter. On being satisfied that they wanted to give confessional statements, he recorded their statements. PW133 Sharadhkumar Laxminarayan, DIG Police, CBI, SIC II Branch, New Delhi stated that in the year 1992 he was S.P. in the same branch at New Delhi. On 5th November, 1992 he was directed by DIG M.L. Sharma to proceed to Ahmedabad in order to record statement of A4 Saquib Nachan under Section 15 of TADA Act. On 6th November, 1992 after reaching at Ahmedabad, Saquib Nachan was produced before him. He put necessary questions to A4 Saquib Nachan. Before recording confessional statement, he ascertained from him whether be was voluntarily ready to give confessional statement and warned him that if he made confessional statement, the same can be used against him. He also apprised the accused that he is not bound to make such statement. When the accused replied that he wanted to make clean admission of guilt, he recorded the confessional statement of A4 Saquib Nachan. From the above evidence, it is clear that Rule 15 was fully followed by the witnesses, who recorded the confessional statements of accused. 90. In view of the aforesaid evidence, the prosecution has proved its case beyond reasonable doubt against the appellants who are convicted by the trial Court. (1) For accused No. 1, the evidence as narrated above proves, beyond reasonable doubt, his involvement in criminal conspiracy. He moved from one place to another in India in different fake names; he along with other persons went to Ahmedabad, hired C-33, Paresh Apartments and got transferred building 4A in Usman Harun Society, Juhupura, Ahmedabad. On the basis of his interrogation, the police at Ahmedabad raided the premises and found large quantity of arms, ammunitions and explosive substances. His stay at Ahmedabad in the said premises is established without any shadow of doubt by examining independent witnesses including residents of aforesaid two premises, the washerman and other persons. He was staying in the name of Ashok Kumar Khanna or Iqbal. His stay in different hotels is also established. The purchase of Mahindra Jeep and Maruti Gypsy is also proved. Therefore, it cannot be said that the trial Court erred in convicting him for the offences punishable under Section 3(3) and 5(1) of the TADA Act as well as Section 120B IPC and under Section 25(1)(a) of Arms Act. (2) Against accused No. 2, apart from his confessional statement, it is proved that he is a Pakistani national. He moved from one place to another in India. He stayed at Aligarh with A1 and in Qureshi Guest House at Delhi in different names during different period. Hence, there is no reason to discard his confessional statement that he was I.S.I. agent and that he was involved in terrorist activities and hatched conspiracy with A1. (3) For accused No. 3, apart from proving his confessional statement, prosecution has proved that he was found in the company of A1 and A20 at Bombay. From his premises, the letter written by him (Ex. 602 and 603) was found indicating his secret activities. (4) For accused No. 4, apart from his confessional statement, it is proved that he accompanied A1 at Ahmedabad and Madras and stayed in different hotels in different names. He was present at Aligarh alongwith A1 and A2. He was also absconding. (5) Similarly for A20, in addition to confessional statement, the prosecution has led the evidence to establish his association with A1 and A2 at Aligarh. Thereafter, it is proved that he went to Bombay and introduced A1 and A3 as his friends to his friend PW87. 91. The next question would be with regard to the conviction of A3, A4 and A20 for the offence punishable under Section 3(3) of the TADA Act. In our view, there cannot be any doubt that A3, A4 and A20 have conspired alongwith A1 and A2 in their preparatory terrorist activities. Apart from conspiring, A4 specifically accompanied A1 at Ahmedabad for the purpose of finding hideout. He also accompanied A1 at Madras for surveying the Madras Stock Exchange. If A4 was not at all connected with A1, there was no necessity of travelling together in fake names. For accused Nos. 3 and 20, it is true that apart form their confessional statement, role proved against them in conspiring with A1 is limited. However, A3, Tahir Jamal had kept substantial amount for carrying the expenditure incurred in these activities. The torn letter Ex.602 and 603 establishes that he was involved in secret `karobar. In this view of the matter, it cannot be said that their conviction under Section 3(3) of the TADA Act is in any way illegal or erroneous. However, considering the role played by A-3, A-4 and A-20, we think interest of justice would be served if their sentence is reduced from life imprisonment to R.I. for 10 years. 92. In the result, | 0[ds]39. In our view, there is no substance in the said submission. First seals, which were removed, were affixed again at second premises after arranging and classifying the weapons. Further, there is no reason to disbelieve prosecution witnesses for the recovery of large quantity of arms, ammunitions and explosive substances, which were recovered on the basis of interrogation if A1 Lal Singh. Immediate action was taken for locating the premises and after locating the premises, raids were carried out by S.P. Mr. Surolia. Learned senior Counsel has also submitted that no search warrant was obtained prior to search as required under Rule 14 of the TADA Rules. He submitted that no entry was made in the record despite the decision being taken to raid the premises. It is to be stated that raid was carried out by S.P. Mr. Surolia after obtaining directions from Commissioner of Police Mr. M.M. Mehta. He was present at the time of raiding the premises. He was also present when panchnama was prepared for seizure of the articles. Further, the learned Judge has specifically observed that during the examination of the panch, PW6 Dharmen H. Dudhiya, each parcel was opened and panch had identified the slips which were affixed at the time of sealing of the parcel along with his signatures and of the other panch Mr. Akhilesh S. Bhagat. He has also identified the seized articles which were sealed in his presence and has described the premises which were raided and has fully corroborated Mr. Surolia and Mr. Tarun Barot, with regard to seizure of the articles. Therefore, alleged irregularity in mixing of the articles recovered from Paresh Apartments and bungalow No. 4A, Usman Harun Society would not in any way materially affect the seizure of the said articles. It was the prosecution version that in order to classify the weapons or to arrange them in category, the seals which were affixed at C-33, Paresh Apartments were removed and after classification of the arms and ammunition, they were re-sealed. We would also state that in the first part of the panchnama the recovery from the Paresh Apartments is mentioned separately and there is no reason to disbelieve the said part of the panchnama. In view of the overwhelming evidence it appears that before the learned Judge, the defence has not challenged the prosecution evidence qua recovery of arms and ammunitions from two praises but they contended that none of the accused can be linked with the alleged recovery or with the conscious possession of any of the two premises. Before the trial Court much comment was made with regard to the exhibition of the seized arms to the Press in presence of the then Chief Minister of the State of Gujarat. But in our view, exhibition of the said seized articles would not in any way adversely affect the prosecution version that the said articles were seized on the basis of the information received after interrogating A1 Lal Singh on 23rd July, 1992 and immediate action was taken by the police after its receipt on the same night. Further, PW8 Rupsingh, Ex.165, a Senior Scientific Officer in Central Forensic Science Laboratory at New Delhi has inter alia stated that on 28th August, 1992 his team started examining the seized articles, which were kept in boxes/bags at Police headquarter, Shahibag, Ahmedabad. The inspection was carried out for three days after checking the seals. The seals were found intact, which tallied with the specimen seals of Astodia police station. The report prepared by him is produced at Ex.167. Further, all these arms were firearms as defined in Arms Act, 1959. In this view of the matter, it would be difficult to accept the contentions of the defence counsel that the seized arms and ammunition were not properly sealed or were not kept at proper place. The seized articles were kept at the police headquarter because of its large quantity. Hence, we hold that on the basis of interrogation of A1 prosecution has proved beyond doubt recovery of large quantities of arms, ammunitions and explosive substances86. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the fake of giving benefit of doubt is not the law of the land. In such type of terrorist activities if arms and ammunitions are recovered at the instance of or on disclosure by accused, it can be stated that presumption of innocence would not thereafter exist and it would be for the accused to explain its possession or discovery or recovery and would depend upon facts of each case which are to be appreciated on the scales of common sense of a prudent man possessing capacity to separate the chaff from grain. In such cases, as stated by Lord Denning J., law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If it is established on record that A20 was found in company of A1 and A2 at Aligarh and that at Bombay also he had introduced himself as friend of A1 and A3 to PW87, who is his childhood friend, then it would be reasonable to infer that he was co-conspirator and assisting A1 and A2, as stated in his confessional statement88. The learned Counsel pointed out that before carrying out the raids neither FIR was registered and even after breaking open locks the procedure is not followed. It is true that in this case FIR was registered after carrying out the raids. For this contention, it has been pointed out on behalf of the prosecution that before raids were carried out there was no certainty that arms and ammunition would be recovered. These raids were carried out only on the basis of information received after interrogation of A1 Lal Singh. Secondly, the raid was arrived out in the presence of higher officer, namely Mr. A.K.R. Surolia, Dy. C.P. (PW103). For breaking of locks in the said premises, there is no question of different procedure in such cases. For this purpose panchnama was prepared and it is mentioned that after breaking open the locks, search was carried out. Learned Counsel further submitted that there was no justifiable reason to deposit the arms and ammunitions which were found in the said two premises at the police headquarter. It is the say of the witness that muddamal arms and ammunitions were deposited at the police headquarter because of its large quantity. It is quite possible that there may not be sufficient space at the police station where FIR was registered. In any case, for the purpose of safety if the muddamal articles are deposited at the police headquarter, it cannot be said that the recovery is in any way vitiated89. The next contention that Rule 15 of TADA Rules has not been followed also does not carry any weight. For this purpose, we would refer to the evidence of PW128, PW132 and PW133. PW128 Satishchandra Rajnarayanlal, who was S.P., CBI II, Punjab Cell, at New Delhi in 1992 stated that he registered the offence R.C.6-SII/92. He recorded the confessional statements of A1 Lal Singh Ex.620 and A3 Tahir Jamal Ex.618 alongwith other accused. Before recording confessional statements, he ascertained from every accused whether they were voluntarily ready to give confessional statements. Necessary questions were put to them and time was given to them to think over the matter. After being satisfied that they were willing to give voluntary confessional statements, he recorded their confessional statements. PW132 Padamchandra Laxmichandra Sharma, who was SP CBI SIC II at the relevant time stated that when he took over the charge of this case RC.6.(S)/92 from Mr. Satishchandra, this case was on the last phase. Dy.S.P. CBI, D.P. Singh (PW136) had produced A2 Mohd. Sharief and A20 Shoaib Mukhtiar before him on 8.7.1993 and 6.2.1994 for recording their voluntary confessional statement, which are Ex.650 and Ex.654 respectively. Before recording their statements, he warned them of the consequences of making confessional statements and further gave them time to think over the matter. On being satisfied that they wanted to give confessional statements, he recorded their statements. PW133 Sharadhkumar Laxminarayan, DIG Police, CBI, SIC II Branch, New Delhi stated that in the year 1992 he was S.P. in the same branch at New Delhi. On 5th November, 1992 he was directed by DIG M.L. Sharma to proceed to Ahmedabad in order to record statement of A4 Saquib Nachan under Section 15 of TADA Act. On 6th November, 1992 after reaching at Ahmedabad, Saquib Nachan was produced before him. He put necessary questions to A4 Saquib Nachan. Before recording confessional statement, he ascertained from him whether be was voluntarily ready to give confessional statement and warned him that if he made confessional statement, the same can be used against him. He also apprised the accused that he is not bound to make such statement. When the accused replied that he wanted to make clean admission of guilt, he recorded the confessional statement of A4 Saquib Nachan. From the above evidence, it is clear that Rule 15 was fully followed by the witnesses, who recorded the confessional statements of accused. | 0 | 31,196 | 1,715 | ### Instruction:
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of PW128, PW132 and PW133. PW128 Satishchandra Rajnarayanlal, who was S.P., CBI II, Punjab Cell, at New Delhi in 1992 stated that he registered the offence R.C.6-SII/92. He recorded the confessional statements of A1 Lal Singh Ex.620 and A3 Tahir Jamal Ex.618 alongwith other accused. Before recording confessional statements, he ascertained from every accused whether they were voluntarily ready to give confessional statements. Necessary questions were put to them and time was given to them to think over the matter. After being satisfied that they were willing to give voluntary confessional statements, he recorded their confessional statements. PW132 Padamchandra Laxmichandra Sharma, who was SP CBI SIC II at the relevant time stated that when he took over the charge of this case RC.6.(S)/92 from Mr. Satishchandra, this case was on the last phase. Dy.S.P. CBI, D.P. Singh (PW136) had produced A2 Mohd. Sharief and A20 Shoaib Mukhtiar before him on 8.7.1993 and 6.2.1994 for recording their voluntary confessional statement, which are Ex.650 and Ex.654 respectively. Before recording their statements, he warned them of the consequences of making confessional statements and further gave them time to think over the matter. On being satisfied that they wanted to give confessional statements, he recorded their statements. PW133 Sharadhkumar Laxminarayan, DIG Police, CBI, SIC II Branch, New Delhi stated that in the year 1992 he was S.P. in the same branch at New Delhi. On 5th November, 1992 he was directed by DIG M.L. Sharma to proceed to Ahmedabad in order to record statement of A4 Saquib Nachan under Section 15 of TADA Act. On 6th November, 1992 after reaching at Ahmedabad, Saquib Nachan was produced before him. He put necessary questions to A4 Saquib Nachan. Before recording confessional statement, he ascertained from him whether be was voluntarily ready to give confessional statement and warned him that if he made confessional statement, the same can be used against him. He also apprised the accused that he is not bound to make such statement. When the accused replied that he wanted to make clean admission of guilt, he recorded the confessional statement of A4 Saquib Nachan. From the above evidence, it is clear that Rule 15 was fully followed by the witnesses, who recorded the confessional statements of accused. 90. In view of the aforesaid evidence, the prosecution has proved its case beyond reasonable doubt against the appellants who are convicted by the trial Court. (1) For accused No. 1, the evidence as narrated above proves, beyond reasonable doubt, his involvement in criminal conspiracy. He moved from one place to another in India in different fake names; he along with other persons went to Ahmedabad, hired C-33, Paresh Apartments and got transferred building 4A in Usman Harun Society, Juhupura, Ahmedabad. On the basis of his interrogation, the police at Ahmedabad raided the premises and found large quantity of arms, ammunitions and explosive substances. His stay at Ahmedabad in the said premises is established without any shadow of doubt by examining independent witnesses including residents of aforesaid two premises, the washerman and other persons. He was staying in the name of Ashok Kumar Khanna or Iqbal. His stay in different hotels is also established. The purchase of Mahindra Jeep and Maruti Gypsy is also proved. Therefore, it cannot be said that the trial Court erred in convicting him for the offences punishable under Section 3(3) and 5(1) of the TADA Act as well as Section 120B IPC and under Section 25(1)(a) of Arms Act. (2) Against accused No. 2, apart from his confessional statement, it is proved that he is a Pakistani national. He moved from one place to another in India. He stayed at Aligarh with A1 and in Qureshi Guest House at Delhi in different names during different period. Hence, there is no reason to discard his confessional statement that he was I.S.I. agent and that he was involved in terrorist activities and hatched conspiracy with A1. (3) For accused No. 3, apart from proving his confessional statement, prosecution has proved that he was found in the company of A1 and A20 at Bombay. From his premises, the letter written by him (Ex. 602 and 603) was found indicating his secret activities. (4) For accused No. 4, apart from his confessional statement, it is proved that he accompanied A1 at Ahmedabad and Madras and stayed in different hotels in different names. He was present at Aligarh alongwith A1 and A2. He was also absconding. (5) Similarly for A20, in addition to confessional statement, the prosecution has led the evidence to establish his association with A1 and A2 at Aligarh. Thereafter, it is proved that he went to Bombay and introduced A1 and A3 as his friends to his friend PW87. 91. The next question would be with regard to the conviction of A3, A4 and A20 for the offence punishable under Section 3(3) of the TADA Act. In our view, there cannot be any doubt that A3, A4 and A20 have conspired alongwith A1 and A2 in their preparatory terrorist activities. Apart from conspiring, A4 specifically accompanied A1 at Ahmedabad for the purpose of finding hideout. He also accompanied A1 at Madras for surveying the Madras Stock Exchange. If A4 was not at all connected with A1, there was no necessity of travelling together in fake names. For accused Nos. 3 and 20, it is true that apart form their confessional statement, role proved against them in conspiring with A1 is limited. However, A3, Tahir Jamal had kept substantial amount for carrying the expenditure incurred in these activities. The torn letter Ex.602 and 603 establishes that he was involved in secret `karobar. In this view of the matter, it cannot be said that their conviction under Section 3(3) of the TADA Act is in any way illegal or erroneous. However, considering the role played by A-3, A-4 and A-20, we think interest of justice would be served if their sentence is reduced from life imprisonment to R.I. for 10 years. 92. In the result,
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headquarter, Shahibag, Ahmedabad. The inspection was carried out for three days after checking the seals. The seals were found intact, which tallied with the specimen seals of Astodia police station. The report prepared by him is produced at Ex.167. Further, all these arms were firearms as defined in Arms Act, 1959. In this view of the matter, it would be difficult to accept the contentions of the defence counsel that the seized arms and ammunition were not properly sealed or were not kept at proper place. The seized articles were kept at the police headquarter because of its large quantity. Hence, we hold that on the basis of interrogation of A1 prosecution has proved beyond doubt recovery of large quantities of arms, ammunitions and explosive substances86. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the fake of giving benefit of doubt is not the law of the land. In such type of terrorist activities if arms and ammunitions are recovered at the instance of or on disclosure by accused, it can be stated that presumption of innocence would not thereafter exist and it would be for the accused to explain its possession or discovery or recovery and would depend upon facts of each case which are to be appreciated on the scales of common sense of a prudent man possessing capacity to separate the chaff from grain. In such cases, as stated by Lord Denning J., law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If it is established on record that A20 was found in company of A1 and A2 at Aligarh and that at Bombay also he had introduced himself as friend of A1 and A3 to PW87, who is his childhood friend, then it would be reasonable to infer that he was co-conspirator and assisting A1 and A2, as stated in his confessional statement88. The learned Counsel pointed out that before carrying out the raids neither FIR was registered and even after breaking open locks the procedure is not followed. It is true that in this case FIR was registered after carrying out the raids. For this contention, it has been pointed out on behalf of the prosecution that before raids were carried out there was no certainty that arms and ammunition would be recovered. These raids were carried out only on the basis of information received after interrogation of A1 Lal Singh. Secondly, the raid was arrived out in the presence of higher officer, namely Mr. A.K.R. Surolia, Dy. C.P. (PW103). For breaking of locks in the said premises, there is no question of different procedure in such cases. For this purpose panchnama was prepared and it is mentioned that after breaking open the locks, search was carried out. Learned Counsel further submitted that there was no justifiable reason to deposit the arms and ammunitions which were found in the said two premises at the police headquarter. It is the say of the witness that muddamal arms and ammunitions were deposited at the police headquarter because of its large quantity. It is quite possible that there may not be sufficient space at the police station where FIR was registered. In any case, for the purpose of safety if the muddamal articles are deposited at the police headquarter, it cannot be said that the recovery is in any way vitiated89. The next contention that Rule 15 of TADA Rules has not been followed also does not carry any weight. For this purpose, we would refer to the evidence of PW128, PW132 and PW133. PW128 Satishchandra Rajnarayanlal, who was S.P., CBI II, Punjab Cell, at New Delhi in 1992 stated that he registered the offence R.C.6-SII/92. He recorded the confessional statements of A1 Lal Singh Ex.620 and A3 Tahir Jamal Ex.618 alongwith other accused. Before recording confessional statements, he ascertained from every accused whether they were voluntarily ready to give confessional statements. Necessary questions were put to them and time was given to them to think over the matter. After being satisfied that they were willing to give voluntary confessional statements, he recorded their confessional statements. PW132 Padamchandra Laxmichandra Sharma, who was SP CBI SIC II at the relevant time stated that when he took over the charge of this case RC.6.(S)/92 from Mr. Satishchandra, this case was on the last phase. Dy.S.P. CBI, D.P. Singh (PW136) had produced A2 Mohd. Sharief and A20 Shoaib Mukhtiar before him on 8.7.1993 and 6.2.1994 for recording their voluntary confessional statement, which are Ex.650 and Ex.654 respectively. Before recording their statements, he warned them of the consequences of making confessional statements and further gave them time to think over the matter. On being satisfied that they wanted to give confessional statements, he recorded their statements. PW133 Sharadhkumar Laxminarayan, DIG Police, CBI, SIC II Branch, New Delhi stated that in the year 1992 he was S.P. in the same branch at New Delhi. On 5th November, 1992 he was directed by DIG M.L. Sharma to proceed to Ahmedabad in order to record statement of A4 Saquib Nachan under Section 15 of TADA Act. On 6th November, 1992 after reaching at Ahmedabad, Saquib Nachan was produced before him. He put necessary questions to A4 Saquib Nachan. Before recording confessional statement, he ascertained from him whether be was voluntarily ready to give confessional statement and warned him that if he made confessional statement, the same can be used against him. He also apprised the accused that he is not bound to make such statement. When the accused replied that he wanted to make clean admission of guilt, he recorded the confessional statement of A4 Saquib Nachan. From the above evidence, it is clear that Rule 15 was fully followed by the witnesses, who recorded the confessional statements of accused.
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Anar Devi Vs. Nathuram | landlord, an obligation is imposed on the tenant to obtain leave from the Rent Controller to contest that application. For seeking such leave, the tenant is required to make an application supported by an affidavit specifying the ground on which he wants to contest the application. Again, if he does not file such application supported by an affidavit or if the Court refuses to grant leave to contest it, the statement as regards the ground on which recovery of possession of the accommodation is sought by the landlord in his application shall be deemed to be admitted by the tenant and the Rent Controller in that event, is bound to pass an order of eviction of the tenant from the accommodation. When it comes to sub-section (3) of Section 23-D, it says that `in respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be, of Section 23-A is bona fide. Such presumption requires the Rent Controller to regard the fact of bona fide requirement of the accommodation by the landlord to be taken as proved until the same is disproved by the tenant. Thus, when the said provisions in the Chapter along with other provisions therein, reflect a legislative scheme or policy of enabling landlords of specified classes to recover possession of accommodation from their tenants with utmost expedition before the Rent Controller, a forum specially constituted for the purpose and when under Section 116 of the Evidence Act a tenant is estopped from denying his landlords title to accommodation, whether he was there either from the beginning of the tenancy or had become a tenant subsequently by acknowledging the landlords title, it is difficult to think that the words `if he is the owner thereof used in clause (b) of Section 23-A are intended to require the landlord to plead in his application for recovery of possession made under the clause, his ownership of accommodation, and establish the same by evidence aliunde, to succeed in recovery of possession of such accommodation from the tenant. It would be so, particularly, when he was not so required to plead or establish on an application if had been made by him for recovery of possession of the accommodation on the self same ground under Section 12(1)(f) of the Act. It is also difficult to think that the said words `if he is the owner thereof in the clause, require that the landlord should plead and establish his title to the accommodation for recovery of its possession from the tenant, for that would be as good as asking him to go to Civil Court for establishing his title to the property and recover its possession from the tenant, which if is the correct position, would, instead of advancing the aforesaid object of the provisions in the Chapter, squarely result in its defeat. Therefore, what could be said of the words `if he is the owner thereof used in clause (b) of Section 23-A, is that they are although meant to enable the landlord who is the owner of the accommodation, to submit an application under that clause for recovery of possession of the accommodation from his tenant, they are not intended to require such landlord to plead in his application that he is the owner of such accommodation and adduce evidence aliunde in that behalf for succeeding in that application.17. Our answer to the question, therefore, is that the use of the words `if he is the owner thereof used in clause (b) of Section 23-A of the Act does not require of the landlord who makes an application thereunder for recovery of possession of accommodation from the tenant to plead therein that he is the owner of such accommodation and establish by evidence aliunde that he is such owner, for succeeding in such application even though these words may enable a tenant to contest such application on the ground that the landlord is not the owner of the accommodation if he is not inhibited from doing so under Section 116 of the Evidence Act.18. Coming to the facts of the present appeal, as has been already pointed out by us, the learned Judge of the High Court reversed the order of the Rent Controller, on his view that the landlord-appellant, who had sought to recover possession of the accommodation from his tenant-respondent under clause (b) of Section 23-A of the Act, had failed to establish or prove that she was the owner of the accommodation by adducing sufficient evidence in that behalf and, therefore, her application for eviction of the tenant-respondent from the accommodation was liable to be rejected. The question as to whether a landlord, who files an application under clause (b) of Section 23-A of the Act should plead in such application that he was the owner of the accommodation and establish by evidence aliunde that he was such owner, has since been considered by us earlier and answered to the effect that the landlord making such application need not plead in his application that he was an owner of the accommodation and he need not establish or prove by adducing evidence aliunde, for succeeding in such application, the view taken by the High Court that the landlords application under clause(b) of Section 23-A of the Act should be rejected on the ground that the appellant has failed to prove that she was the owner of the accommodation which she sought to recover from the tenant, cannot be sustained. Besides, the respondent, who had acknowledged the ownership of the accommodation as that of the appellant and had regarded her as the landlord in his counter notice, Ex. P-4, and plaint in the suit, Ex. P-5, was not even entitled to deny the title of the appellant to the accommodation. Hence, the judgment and order of the High Court calls to be interfered with and set aside. | 1[ds]16. The legislature, in our view, by use of the words `if he is the owner thereof in clause (b) of Section 23-A could not have intended to require the landlord for whose benefit that provision was made, to plead in his application and to establish by evidence aliunde, that he was the owner of the accommodation, becomes obvious from the various provisions in Chapter III-A to which we have adverted to. When we look at Section 23-A along with the form of notice in the Second Schedule to be issued on the application made under clause (b) of Section 23-A of the Act by the landlord, an obligation is imposed on the tenant to obtain leave from the Rent Controller to contest that application. For seeking such leave, the tenant is required to make an application supported by an affidavit specifying the ground on which he wants to contest the application. Again, if he does not file such application supported by an affidavit or if the Court refuses to grant leave to contest it, the statement as regards the ground on which recovery of possession of the accommodation is sought by the landlord in his application shall be deemed to be admitted by the tenant and the Rent Controller in that event, is bound to pass an order of eviction of the tenant from the accommodation. When it comes to sub-section (3) of Section 23-D, it says that `in respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be, of Section 23-A is bona fide. Such presumption requires the Rent Controller to regard the fact of bona fide requirement of the accommodation by the landlord to be taken as proved until the same is disproved by the tenant. Thus, when the said provisions in the Chapter along with other provisions therein, reflect a legislative scheme or policy of enabling landlords of specified classes to recover possession of accommodation from their tenants with utmost expedition before the Rent Controller, a forum specially constituted for the purpose and when under Section 116 of the Evidence Act a tenant is estopped from denying his landlords title to accommodation, whether he was there either from the beginning of the tenancy or had become a tenant subsequently by acknowledging the landlords title, it is difficult to think that the words `if he is the owner thereof used in clause (b) of Section 23-A are intended to require the landlord to plead in his application for recovery of possession made under the clause, his ownership of accommodation, and establish the same by evidence aliunde, to succeed in recovery of possession of such accommodation from the tenant. It would be so, particularly, when he was not so required to plead or establish on an application if had been made by him for recovery of possession of the accommodation on the self same ground under Section 12(1)(f) of the Act. It is also difficult to think that the said words `if he is the owner thereof in the clause, require that the landlord should plead and establish his title to the accommodation for recovery of its possession from the tenant, for that would be as good as asking him to go to Civil Court for establishing his title to the property and recover its possession from the tenant, which if is the correct position, would, instead of advancing the aforesaid object of the provisions in the Chapter, squarely result in its defeat. Therefore, what could be said of the words `if he is the owner thereof used in clause (b) of Section 23-A, is that they are although meant to enable the landlord who is the owner of the accommodation, to submit an application under that clause for recovery of possession of the accommodation from his tenant, they are not intended to require such landlord to plead in his application that he is the owner of such accommodation and adduce evidence aliunde in that behalf for succeeding in that application.17. Our answer to the question, therefore, is that the use of the words `if he is the owner thereof used in clause (b) of Section 23-A of the Act does not require of the landlord who makes an application thereunder for recovery of possession of accommodation from the tenant to plead therein that he is the owner of such accommodation and establish by evidence aliunde that he is such owner, for succeeding in such application even though these words may enable a tenant to contest such application on the ground that the landlord is not the owner of the accommodation if he is not inhibited from doing so under Section 116 of the Evidence Act.18. Coming to the facts of the present appeal, as has been already pointed out by us, the learned Judge of the High Court reversed the order of the Rent Controller, on his view that the landlord-appellant, who had sought to recover possession of the accommodation from his tenant-respondent under clause (b) of Section 23-A of the Act, had failed to establish or prove that she was the owner of the accommodation by adducing sufficient evidence in that behalf and, therefore, her application for eviction of the tenant-respondent from the accommodation was liable to be rejected. The question as to whether a landlord, who files an application under clause (b) of Section 23-A of the Act should plead in such application that he was the owner of the accommodation and establish by evidence aliunde that he was such owner, has since been considered by us earlier and answered to the effect that the landlord making such application need not plead in his application that he was an owner of the accommodation and he need not establish or prove by adducing evidence aliunde, for succeeding in such application, the view taken by the High Court that the landlords application under clause(b) of Section 23-A of the Act should be rejected on the ground that the appellant has failed to prove that she was the owner of the accommodation which she sought to recover from the tenant, cannot be sustained. Besides, the respondent, who had acknowledged the ownership of the accommodation as that of the appellant and had regarded her as the landlord in his counter notice, Ex. P-4, and plaint in the suit, Ex. P-5, was not even entitled to deny the title of the appellant to the accommodation. Hence, the judgment and order of the High Court calls to be interfered with and set aside. | 1 | 4,408 | 1,221 | ### Instruction:
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landlord, an obligation is imposed on the tenant to obtain leave from the Rent Controller to contest that application. For seeking such leave, the tenant is required to make an application supported by an affidavit specifying the ground on which he wants to contest the application. Again, if he does not file such application supported by an affidavit or if the Court refuses to grant leave to contest it, the statement as regards the ground on which recovery of possession of the accommodation is sought by the landlord in his application shall be deemed to be admitted by the tenant and the Rent Controller in that event, is bound to pass an order of eviction of the tenant from the accommodation. When it comes to sub-section (3) of Section 23-D, it says that `in respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be, of Section 23-A is bona fide. Such presumption requires the Rent Controller to regard the fact of bona fide requirement of the accommodation by the landlord to be taken as proved until the same is disproved by the tenant. Thus, when the said provisions in the Chapter along with other provisions therein, reflect a legislative scheme or policy of enabling landlords of specified classes to recover possession of accommodation from their tenants with utmost expedition before the Rent Controller, a forum specially constituted for the purpose and when under Section 116 of the Evidence Act a tenant is estopped from denying his landlords title to accommodation, whether he was there either from the beginning of the tenancy or had become a tenant subsequently by acknowledging the landlords title, it is difficult to think that the words `if he is the owner thereof used in clause (b) of Section 23-A are intended to require the landlord to plead in his application for recovery of possession made under the clause, his ownership of accommodation, and establish the same by evidence aliunde, to succeed in recovery of possession of such accommodation from the tenant. It would be so, particularly, when he was not so required to plead or establish on an application if had been made by him for recovery of possession of the accommodation on the self same ground under Section 12(1)(f) of the Act. It is also difficult to think that the said words `if he is the owner thereof in the clause, require that the landlord should plead and establish his title to the accommodation for recovery of its possession from the tenant, for that would be as good as asking him to go to Civil Court for establishing his title to the property and recover its possession from the tenant, which if is the correct position, would, instead of advancing the aforesaid object of the provisions in the Chapter, squarely result in its defeat. Therefore, what could be said of the words `if he is the owner thereof used in clause (b) of Section 23-A, is that they are although meant to enable the landlord who is the owner of the accommodation, to submit an application under that clause for recovery of possession of the accommodation from his tenant, they are not intended to require such landlord to plead in his application that he is the owner of such accommodation and adduce evidence aliunde in that behalf for succeeding in that application.17. Our answer to the question, therefore, is that the use of the words `if he is the owner thereof used in clause (b) of Section 23-A of the Act does not require of the landlord who makes an application thereunder for recovery of possession of accommodation from the tenant to plead therein that he is the owner of such accommodation and establish by evidence aliunde that he is such owner, for succeeding in such application even though these words may enable a tenant to contest such application on the ground that the landlord is not the owner of the accommodation if he is not inhibited from doing so under Section 116 of the Evidence Act.18. Coming to the facts of the present appeal, as has been already pointed out by us, the learned Judge of the High Court reversed the order of the Rent Controller, on his view that the landlord-appellant, who had sought to recover possession of the accommodation from his tenant-respondent under clause (b) of Section 23-A of the Act, had failed to establish or prove that she was the owner of the accommodation by adducing sufficient evidence in that behalf and, therefore, her application for eviction of the tenant-respondent from the accommodation was liable to be rejected. The question as to whether a landlord, who files an application under clause (b) of Section 23-A of the Act should plead in such application that he was the owner of the accommodation and establish by evidence aliunde that he was such owner, has since been considered by us earlier and answered to the effect that the landlord making such application need not plead in his application that he was an owner of the accommodation and he need not establish or prove by adducing evidence aliunde, for succeeding in such application, the view taken by the High Court that the landlords application under clause(b) of Section 23-A of the Act should be rejected on the ground that the appellant has failed to prove that she was the owner of the accommodation which she sought to recover from the tenant, cannot be sustained. Besides, the respondent, who had acknowledged the ownership of the accommodation as that of the appellant and had regarded her as the landlord in his counter notice, Ex. P-4, and plaint in the suit, Ex. P-5, was not even entitled to deny the title of the appellant to the accommodation. Hence, the judgment and order of the High Court calls to be interfered with and set aside.
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landlord, an obligation is imposed on the tenant to obtain leave from the Rent Controller to contest that application. For seeking such leave, the tenant is required to make an application supported by an affidavit specifying the ground on which he wants to contest the application. Again, if he does not file such application supported by an affidavit or if the Court refuses to grant leave to contest it, the statement as regards the ground on which recovery of possession of the accommodation is sought by the landlord in his application shall be deemed to be admitted by the tenant and the Rent Controller in that event, is bound to pass an order of eviction of the tenant from the accommodation. When it comes to sub-section (3) of Section 23-D, it says that `in respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be, of Section 23-A is bona fide. Such presumption requires the Rent Controller to regard the fact of bona fide requirement of the accommodation by the landlord to be taken as proved until the same is disproved by the tenant. Thus, when the said provisions in the Chapter along with other provisions therein, reflect a legislative scheme or policy of enabling landlords of specified classes to recover possession of accommodation from their tenants with utmost expedition before the Rent Controller, a forum specially constituted for the purpose and when under Section 116 of the Evidence Act a tenant is estopped from denying his landlords title to accommodation, whether he was there either from the beginning of the tenancy or had become a tenant subsequently by acknowledging the landlords title, it is difficult to think that the words `if he is the owner thereof used in clause (b) of Section 23-A are intended to require the landlord to plead in his application for recovery of possession made under the clause, his ownership of accommodation, and establish the same by evidence aliunde, to succeed in recovery of possession of such accommodation from the tenant. It would be so, particularly, when he was not so required to plead or establish on an application if had been made by him for recovery of possession of the accommodation on the self same ground under Section 12(1)(f) of the Act. It is also difficult to think that the said words `if he is the owner thereof in the clause, require that the landlord should plead and establish his title to the accommodation for recovery of its possession from the tenant, for that would be as good as asking him to go to Civil Court for establishing his title to the property and recover its possession from the tenant, which if is the correct position, would, instead of advancing the aforesaid object of the provisions in the Chapter, squarely result in its defeat. Therefore, what could be said of the words `if he is the owner thereof used in clause (b) of Section 23-A, is that they are although meant to enable the landlord who is the owner of the accommodation, to submit an application under that clause for recovery of possession of the accommodation from his tenant, they are not intended to require such landlord to plead in his application that he is the owner of such accommodation and adduce evidence aliunde in that behalf for succeeding in that application.17. Our answer to the question, therefore, is that the use of the words `if he is the owner thereof used in clause (b) of Section 23-A of the Act does not require of the landlord who makes an application thereunder for recovery of possession of accommodation from the tenant to plead therein that he is the owner of such accommodation and establish by evidence aliunde that he is such owner, for succeeding in such application even though these words may enable a tenant to contest such application on the ground that the landlord is not the owner of the accommodation if he is not inhibited from doing so under Section 116 of the Evidence Act.18. Coming to the facts of the present appeal, as has been already pointed out by us, the learned Judge of the High Court reversed the order of the Rent Controller, on his view that the landlord-appellant, who had sought to recover possession of the accommodation from his tenant-respondent under clause (b) of Section 23-A of the Act, had failed to establish or prove that she was the owner of the accommodation by adducing sufficient evidence in that behalf and, therefore, her application for eviction of the tenant-respondent from the accommodation was liable to be rejected. The question as to whether a landlord, who files an application under clause (b) of Section 23-A of the Act should plead in such application that he was the owner of the accommodation and establish by evidence aliunde that he was such owner, has since been considered by us earlier and answered to the effect that the landlord making such application need not plead in his application that he was an owner of the accommodation and he need not establish or prove by adducing evidence aliunde, for succeeding in such application, the view taken by the High Court that the landlords application under clause(b) of Section 23-A of the Act should be rejected on the ground that the appellant has failed to prove that she was the owner of the accommodation which she sought to recover from the tenant, cannot be sustained. Besides, the respondent, who had acknowledged the ownership of the accommodation as that of the appellant and had regarded her as the landlord in his counter notice, Ex. P-4, and plaint in the suit, Ex. P-5, was not even entitled to deny the title of the appellant to the accommodation. Hence, the judgment and order of the High Court calls to be interfered with and set aside.
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Meenu Paliwal Vs. Indian Oil Corporation Limited | of the intending applicants were prescribed in the brochure issued by the first respondent. The eligible candidates were required to apply in the prescribed application form. Para 17 of the application form required the applicant to state the approximate investment excluding the value of land for the construction of various items noted therein. Para 18 there of required the applicant to give details of source of funds. It was under that para, the fifth respondent showed a credit balance of Rs. 2,86,100/- in Allahabad Bank (branch at Zevar), in SB A/c No. 11004. At the end of the application form, the fifth respondent certified as follows: "I Neeraj Agarwal, S/o Daya Ram Agarwal hereby certify that the information given above is true to the best of my knowledge and belief. Any wrong information/ suppression of facts will disqualify me from being Considered for the dealership/ distributorship." (5) It may also be noted here that in part-11 of the brochure, para (1) reads as follows. " If any statement made in application or in the documents enclosed therewith or subsequently submitted in pursuance of the application by the candidate at any stage is found to be incorrect or false, his/her application is liable to be rejected without assigning any reason and in case, he/she has been appointed as a dealer/ distributor, his/her dealership/distributorship is liable to be terminated. In such cases, the candidate/ dealer/distributor shall have no claim whatsoever against the oil company," (6) Insofar as the eligibility criteria is concerned, there are two requirements to be fulfilled - (1) the applicant should be a resident in the concerned district as stated in the advertisement, and (2) the applicant should not have gross income of more than two lakhs for the last financial year, as specified in the advertisement. In the light of these two factors, the applications of the applicants for the dealership ought to be considered. It appears, on consideration of the applications by the dealer selection board, the fifth respondent was placed at no. 1 and the appellant was ranked as no. 2 for grant of dealership.(7) Having come to know of the misstatements in the application form of the fifth respondent, the appellant filed a representation before the first respondent requesting that the dealership proposed to be given to the fifth respondent be cancelled and she be given the dealership. While the representation was pending consideration with the chairman of the said board, both the appellant and the fifth respondent filed separate writ petitions before the High Court of Allahabad. The appellant sought a writ of mandamus for consideration of her representation. The fifth respondent sought a writ of mandamus that in view of the decision of the selection board, he should be granted the dealership. By common order dated July 23, 2001, the High Court dismissed the writ petition filed by the appellant as infructuous on the ground that the representation of the. appellant had already been rejected by the selection board. Insofar as the writ petition of the fifth respondent is concerned, the High Court issued a mandamus to award delership to the fifth respondent within one month subject to the completion of formalities which may be required by the respondent - corporation. However, the appellant filed a fresh writ petition, being W.P.28028/ 2001, before the High Court challenging the decision of the chairman of the selection board, which was dismissed by the High Court on July 31,2001. It is against that order that the appellant is before us in this appeal. (8) Mr. R.F Nariman, the learned senior counsel, appearing for the appellant, brought to our notice that a credit balances of Rs. 2,86,100/- was shown by the fifth respondent as on the date of the application, indeed, there was no account in existence as on that date and, as such, there was misstatement in the application form which should have resulted in rejection of application of the fifth respondent instead he was selected. Mr. O.P. Sharma, the learned senior counsel, appearing for the fifth respondent, on the other hand, invited our attention to the order passed by the High Court on July 23, 2001 granting writ of mandamus in favour of the fifth respondent to award dealership and read out the explanation given by the fifth respondent in regard to the credit balance shown in column 18 which had been accepted by the chairman of the selection board and prayed that this appeal be dismissed. Mr. Puri, learned counsel appearing for the first respondent-corporation, submitted that in granting the dealership, the first respondent merely obeyed the mandamus issued to it by the High Court. of the parties and perused the records, we are the view that the specific caveat notified by the first respondent that any misstatement of fact would result in rejection of the application and in view of the declaration given by the fifth respondent himself in the application form, referred to above, the misstatement in column 18, if untrue, would make the fifth respondent ineligible for consideration of dealership was not adverted to by the board. In this connection, we may also refer to the report of the field investigating officer who stated that the said account number was opened in the Allahabad Bank, Zevar branch, district Bulandshahr, on June 24, 1998 and was closed on September 22, 2000. This is yet another aspect which needs to be considered by the board. These facts, which require closer examination, are ignored by the board. The High Court also did not bestow any attention on those aspects.(9) In view of this position, we consider it just and proper to set aside the order of the High Court and that of the chairman of the selection board and remit the case to selection board for consideration of the applications of the appellant as well as the fifth respondent afresh after giving due opportunity to both the parties for making selection of an eligible and suitable candidate for granting dealership, in accordance with law. | 1[ds]we are the view that the specific caveat notified by the first respondent that any misstatement of fact would result in rejection of the application and in view of the declaration given by the fifth respondent himself in the application form, referred to above, the misstatement in column 18, if untrue, would make the fifth respondent ineligible for consideration of dealership was not adverted to by the board. In this connection, we may also refer to the report of the field investigating officer who stated that the said account number was opened in the Allahabad Bank, Zevar branch, district Bulandshahr, on June 24, 1998 and was closed on September 22, 2000. This is yet another aspect which needs to be considered by the board. These facts, which require closer examination, are ignored by the board. The High Court also did not bestow any attention on those aspects.(9) In view of this position, we consider it just and proper to set aside the order of the High Court and that of the chairman of the selection board and remit the case to selection board for consideration of the applications of the appellant as well as the fifth respondent afresh after giving due opportunity to both the parties for making selection of an eligible and suitable candidate for granting dealership, in accordance with law. | 1 | 1,201 | 249 | ### Instruction:
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of the intending applicants were prescribed in the brochure issued by the first respondent. The eligible candidates were required to apply in the prescribed application form. Para 17 of the application form required the applicant to state the approximate investment excluding the value of land for the construction of various items noted therein. Para 18 there of required the applicant to give details of source of funds. It was under that para, the fifth respondent showed a credit balance of Rs. 2,86,100/- in Allahabad Bank (branch at Zevar), in SB A/c No. 11004. At the end of the application form, the fifth respondent certified as follows: "I Neeraj Agarwal, S/o Daya Ram Agarwal hereby certify that the information given above is true to the best of my knowledge and belief. Any wrong information/ suppression of facts will disqualify me from being Considered for the dealership/ distributorship." (5) It may also be noted here that in part-11 of the brochure, para (1) reads as follows. " If any statement made in application or in the documents enclosed therewith or subsequently submitted in pursuance of the application by the candidate at any stage is found to be incorrect or false, his/her application is liable to be rejected without assigning any reason and in case, he/she has been appointed as a dealer/ distributor, his/her dealership/distributorship is liable to be terminated. In such cases, the candidate/ dealer/distributor shall have no claim whatsoever against the oil company," (6) Insofar as the eligibility criteria is concerned, there are two requirements to be fulfilled - (1) the applicant should be a resident in the concerned district as stated in the advertisement, and (2) the applicant should not have gross income of more than two lakhs for the last financial year, as specified in the advertisement. In the light of these two factors, the applications of the applicants for the dealership ought to be considered. It appears, on consideration of the applications by the dealer selection board, the fifth respondent was placed at no. 1 and the appellant was ranked as no. 2 for grant of dealership.(7) Having come to know of the misstatements in the application form of the fifth respondent, the appellant filed a representation before the first respondent requesting that the dealership proposed to be given to the fifth respondent be cancelled and she be given the dealership. While the representation was pending consideration with the chairman of the said board, both the appellant and the fifth respondent filed separate writ petitions before the High Court of Allahabad. The appellant sought a writ of mandamus for consideration of her representation. The fifth respondent sought a writ of mandamus that in view of the decision of the selection board, he should be granted the dealership. By common order dated July 23, 2001, the High Court dismissed the writ petition filed by the appellant as infructuous on the ground that the representation of the. appellant had already been rejected by the selection board. Insofar as the writ petition of the fifth respondent is concerned, the High Court issued a mandamus to award delership to the fifth respondent within one month subject to the completion of formalities which may be required by the respondent - corporation. However, the appellant filed a fresh writ petition, being W.P.28028/ 2001, before the High Court challenging the decision of the chairman of the selection board, which was dismissed by the High Court on July 31,2001. It is against that order that the appellant is before us in this appeal. (8) Mr. R.F Nariman, the learned senior counsel, appearing for the appellant, brought to our notice that a credit balances of Rs. 2,86,100/- was shown by the fifth respondent as on the date of the application, indeed, there was no account in existence as on that date and, as such, there was misstatement in the application form which should have resulted in rejection of application of the fifth respondent instead he was selected. Mr. O.P. Sharma, the learned senior counsel, appearing for the fifth respondent, on the other hand, invited our attention to the order passed by the High Court on July 23, 2001 granting writ of mandamus in favour of the fifth respondent to award dealership and read out the explanation given by the fifth respondent in regard to the credit balance shown in column 18 which had been accepted by the chairman of the selection board and prayed that this appeal be dismissed. Mr. Puri, learned counsel appearing for the first respondent-corporation, submitted that in granting the dealership, the first respondent merely obeyed the mandamus issued to it by the High Court. of the parties and perused the records, we are the view that the specific caveat notified by the first respondent that any misstatement of fact would result in rejection of the application and in view of the declaration given by the fifth respondent himself in the application form, referred to above, the misstatement in column 18, if untrue, would make the fifth respondent ineligible for consideration of dealership was not adverted to by the board. In this connection, we may also refer to the report of the field investigating officer who stated that the said account number was opened in the Allahabad Bank, Zevar branch, district Bulandshahr, on June 24, 1998 and was closed on September 22, 2000. This is yet another aspect which needs to be considered by the board. These facts, which require closer examination, are ignored by the board. The High Court also did not bestow any attention on those aspects.(9) In view of this position, we consider it just and proper to set aside the order of the High Court and that of the chairman of the selection board and remit the case to selection board for consideration of the applications of the appellant as well as the fifth respondent afresh after giving due opportunity to both the parties for making selection of an eligible and suitable candidate for granting dealership, in accordance with law.
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1
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we are the view that the specific caveat notified by the first respondent that any misstatement of fact would result in rejection of the application and in view of the declaration given by the fifth respondent himself in the application form, referred to above, the misstatement in column 18, if untrue, would make the fifth respondent ineligible for consideration of dealership was not adverted to by the board. In this connection, we may also refer to the report of the field investigating officer who stated that the said account number was opened in the Allahabad Bank, Zevar branch, district Bulandshahr, on June 24, 1998 and was closed on September 22, 2000. This is yet another aspect which needs to be considered by the board. These facts, which require closer examination, are ignored by the board. The High Court also did not bestow any attention on those aspects.(9) In view of this position, we consider it just and proper to set aside the order of the High Court and that of the chairman of the selection board and remit the case to selection board for consideration of the applications of the appellant as well as the fifth respondent afresh after giving due opportunity to both the parties for making selection of an eligible and suitable candidate for granting dealership, in accordance with law.
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Raja Mohan Raja Bahadur Vs. The Commissioner Of Income-Tax, U.P | that contention. The Government of the State undertook to pay the amount of the bonds in satisfaction of the liability of the debtor. The liability of the original debtor was extinguished and a fresh obligation was undertaken by the State Government in substitution of the original liability. The Government had the right to recover the amount due under the bonds from the landholder, but on that account the Government did not become the agent of the landholder for payment of his debts Even if the Government was unable to recover the money from the landholder, the liability undertaken by the Government under the bond remained unimpaired. The bond was a security for payment of the debt which completely replaced the original liability of the debtor.6. The decision in Cross (H. M. Inspector of Taxes) v. London and Provincial Trust Ltd., (1937) 21 Tax Cas 705 on which counsel for the appellant relied has, in our judgment, no application to this case. In 1932 the Brazilian Government suspended payment of interest on Government bonds for a period of three years and issued interest bearing funding bonds in exchange for the interest coupons. The London and Provincial Trust Ltd. which held among its investments Brazilian bonds received funding bonds which it sold from time to time. It was held that by issuing the funding bonds the Government of Brazil did not pay interest and the assessee Bank received no interest when it received the funding bonds. Sir Wilfrid Greene, M. R., observed :"It is not open to question that income can be in the form of moneys worth. Nor is it open to question that if the holder of a security, the contractual income from which is money, receives from the person liable to pay that money something of moneys worth (e. g., goods) instead of the money, such goods are income arising from the security * *.On the other hand where there is a mere substitution of a promise to pay at a later date for the obligation to make an interest payment presently due, the owner of security cannot be said to have received income from it. In such a case, * * * the payment has been postponed instead of being made on its due date. Nor do I see how it can make any difference if upon the true reading of the transaction the original obligation is extinguished and the promise to pay at a later date is accepted in his place."7. MacKinnon, J. J., observed at p. 721:"It is quite true that income may arise by the receipt of moneys worth as well as by the receipt of money. And it is equally true that a debtor may pay his debt by giving the promise of a third party to pay :* * * But I am satisfied that there can never be payment of his debt by a debtor by giving his own promise to pay at a future date. And I am equally satisfied that, though income arises to a creditor from a debtors paying his debt income does not arise by the debtors promising that he will pay his debt later on."But the Encumbered Estates bonds were by operation of the statute received by the appellant in satisfaction pro tanto of the liability of the debtor. They were a fresh security. The liability of the original debtor was substituted by an obligation undertaken by the State : the bonds were convertible in terms of money. Income was therefore received by the appellant when the bonds were received.8. It is necessary to state that the income-tax authorities have brought to tax the difference between the face value of the bonds and the principal which remained due in the relevant previous year. But what was taxable was only that income which represented the difference between the amount due as principal and the market value of the bonds (which were payable in twenty instalments) at the date of receipt. It is true that before the Income-tax Appellate Tribunal this question was not expressly pressed. The appellant did however contend that no part of the difference between the face value of the bonds and the principal amount due was taxable and the third question referred by the Tribunal was sufficiently comprehensive to justify consideration of the plea that a part of the difference only was taxable. Having regard to the argument presented before the Tribunal and the amplitude of the question referred, the High Court was in error in refusing to consider whether only a part of the difference between the face value of the bonds and the principal amount due to the appellant was taxable. Counsel appearing on behalf of the Department concedes that what was taxable was only the difference between the principal amount due and the market value of the bonds when received in the year of account, and he has agreed that the necessary adjustments will be made by the Department in that behalf. In that view we do not think it necessary to modify the answer recorded by the High Court on the third question.9. It is also necessary to observe that in the year 1949-50 the appellant had submitted a return disclosing the difference between the amount received by sale of the bonds and the principal amount due as income received in the previous relevant year. Whether that income was brought to tax pursuant to the return cannot be ascertained from the record. Counsel for the Department has stated that it is not the object of the Department to levy tax in respect of the same income twice. He has agreed that if tax has been levied in respect of the difference between the principal and the realized value of the bonds disclosed in the return for the assessment year 1949-50, appropriate adjustments will be made in that behalf. In view of the statements made at the Bar we do not think it necessary to give any directions in that behalf also. | 0[ds]5. We are unable to agree with that contention. The Government of the State undertook to pay the amount of the bonds in satisfaction of the liability of the debtor. The liability of the original debtor was extinguished and a fresh obligation was undertaken by the State Government in substitution of the original liability. The Government had the right to recover the amount due under the bonds from the landholder, but on that account the Government did not become the agent of the landholder for payment of his debts Even if the Government was unable to recover the money from the landholder, the liability undertaken by the Government under the bond remained unimpaired. The bond was a security for payment of the debt which completely replaced the original liability of the debtor.6. The decision in Cross(H. M. Inspector of Taxes) v. London and Provincial Trust Ltd., (1937) 21 Tax Cas705 on which counsel for the appellant relied has, in our judgment, no application to this case.It is necessary to state that the income-tax authorities have brought to tax the difference between the face value of the bonds and the principal which remained due in the relevant previous year. But what was taxable was only that income which represented the difference between the amount due as principal and the market value of the bonds (which were payable in twenty instalments) at the date of receipt. It is true that before the Income-tax Appellate Tribunal this question was not expressly pressed. The appellant did however contend that no part of the difference between the face value of the bonds and the principal amount due was taxable and the third question referred by the Tribunal was sufficiently comprehensive to justify consideration of the plea that a part of the difference only was taxable. Having regard to the argument presented before the Tribunal and the amplitude of the question referred, the High Court was in error in refusing to consider whether only a part of the difference between the face value of the bonds and the principal amount due to the appellant wasthat view we do not think it necessary to modify the answer recorded by the High Court on the third question.9. It is also necessary to observe that in the year 1949-50 the appellant had submitted a return disclosing the difference between the amount received by sale of the bonds and the principal amount due as income received in the previous relevant year. Whether that income was brought to tax pursuant to the return cannot be ascertained from theview of the statements made at the Bar we do not think it necessary to give any directions in that behalf also.Under Section 4 of theAct, 1922, the total income of any previous year of a resident assessee includes all income, profits and gains from whatever sources derived which are received or are deemed to be received in the taxable territories in such year by or on behalf of such person, or accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year, or accrue or arise to him without the taxable territories during such year, or having accrued or arisen to him without the taxable territories before the beginning of such year and after the 1st day of April, 1933, are brought into or received in the taxable territories by him during such year. The Act does not contain much guidance as to cases in which tax is to be levied on income received, and cases in which tax is to be levied on income accrued or arisen. Section 13 however requires that income, profits and gains for the purposes of Sections 10, and 12 shall be computed in accordance with the method of accounting regularly employed by the assessee. If accounts are maintained according to the mercantile system, whenever the right to receive money in the course of a trading transaction accrues or arises, even though income is not realised income embedded in the receipt is deemed to arise or accrue. Where the accounts are maintained on cash basis receipt of money or moneys worth and not the accrual of the right to receive is the determining factor.Therefore, if commercial assets are received by a trade maintaining accounts on cash basis in satisfaction of an obligation, income which is embedded in the value of the assets is deemed to be received the receipt of income is not deferred till the asset is realised in terms of cash or money. It makes no difference whether the receipt of assets is in pursuance of an agreement or that the trader is compelled by law to accept the assets from the debtor. Once title of the trader to an asset received is complete, whether by a consensual arrangement or by operation of law, he receives the income embedded in the value of the asset.In CalifornianCopper Syndicate (Limited and Reduced) v. Harris (Surveyor of Taxes), (1905) 5 Tax Cas159 Lord Trayner in dealing with a case of assessment to income tax of a Company formed for the purpose inter alia, of acquiring and reselling mining property resold the whole of its assets to a second Company and received payment in fully paid shares of the purchasing Companyprofit is realised when the seller gets the price he has bargained for. No doubt here the price took the form of fully paid shares in another company, but, if there can be no realised profit, except when that is paid in cash, the shares were realisable and could have been turned into cash, if the Appellants had been pleased to do so. I cannot think that Income Tax is due or not according to the manner in which the Parson making the profit pleases to deal with it." | 0 | 2,892 | 1,038 | ### 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:
that contention. The Government of the State undertook to pay the amount of the bonds in satisfaction of the liability of the debtor. The liability of the original debtor was extinguished and a fresh obligation was undertaken by the State Government in substitution of the original liability. The Government had the right to recover the amount due under the bonds from the landholder, but on that account the Government did not become the agent of the landholder for payment of his debts Even if the Government was unable to recover the money from the landholder, the liability undertaken by the Government under the bond remained unimpaired. The bond was a security for payment of the debt which completely replaced the original liability of the debtor.6. The decision in Cross (H. M. Inspector of Taxes) v. London and Provincial Trust Ltd., (1937) 21 Tax Cas 705 on which counsel for the appellant relied has, in our judgment, no application to this case. In 1932 the Brazilian Government suspended payment of interest on Government bonds for a period of three years and issued interest bearing funding bonds in exchange for the interest coupons. The London and Provincial Trust Ltd. which held among its investments Brazilian bonds received funding bonds which it sold from time to time. It was held that by issuing the funding bonds the Government of Brazil did not pay interest and the assessee Bank received no interest when it received the funding bonds. Sir Wilfrid Greene, M. R., observed :"It is not open to question that income can be in the form of moneys worth. Nor is it open to question that if the holder of a security, the contractual income from which is money, receives from the person liable to pay that money something of moneys worth (e. g., goods) instead of the money, such goods are income arising from the security * *.On the other hand where there is a mere substitution of a promise to pay at a later date for the obligation to make an interest payment presently due, the owner of security cannot be said to have received income from it. In such a case, * * * the payment has been postponed instead of being made on its due date. Nor do I see how it can make any difference if upon the true reading of the transaction the original obligation is extinguished and the promise to pay at a later date is accepted in his place."7. MacKinnon, J. J., observed at p. 721:"It is quite true that income may arise by the receipt of moneys worth as well as by the receipt of money. And it is equally true that a debtor may pay his debt by giving the promise of a third party to pay :* * * But I am satisfied that there can never be payment of his debt by a debtor by giving his own promise to pay at a future date. And I am equally satisfied that, though income arises to a creditor from a debtors paying his debt income does not arise by the debtors promising that he will pay his debt later on."But the Encumbered Estates bonds were by operation of the statute received by the appellant in satisfaction pro tanto of the liability of the debtor. They were a fresh security. The liability of the original debtor was substituted by an obligation undertaken by the State : the bonds were convertible in terms of money. Income was therefore received by the appellant when the bonds were received.8. It is necessary to state that the income-tax authorities have brought to tax the difference between the face value of the bonds and the principal which remained due in the relevant previous year. But what was taxable was only that income which represented the difference between the amount due as principal and the market value of the bonds (which were payable in twenty instalments) at the date of receipt. It is true that before the Income-tax Appellate Tribunal this question was not expressly pressed. The appellant did however contend that no part of the difference between the face value of the bonds and the principal amount due was taxable and the third question referred by the Tribunal was sufficiently comprehensive to justify consideration of the plea that a part of the difference only was taxable. Having regard to the argument presented before the Tribunal and the amplitude of the question referred, the High Court was in error in refusing to consider whether only a part of the difference between the face value of the bonds and the principal amount due to the appellant was taxable. Counsel appearing on behalf of the Department concedes that what was taxable was only the difference between the principal amount due and the market value of the bonds when received in the year of account, and he has agreed that the necessary adjustments will be made by the Department in that behalf. In that view we do not think it necessary to modify the answer recorded by the High Court on the third question.9. It is also necessary to observe that in the year 1949-50 the appellant had submitted a return disclosing the difference between the amount received by sale of the bonds and the principal amount due as income received in the previous relevant year. Whether that income was brought to tax pursuant to the return cannot be ascertained from the record. Counsel for the Department has stated that it is not the object of the Department to levy tax in respect of the same income twice. He has agreed that if tax has been levied in respect of the difference between the principal and the realized value of the bonds disclosed in the return for the assessment year 1949-50, appropriate adjustments will be made in that behalf. In view of the statements made at the Bar we do not think it necessary to give any directions in that behalf also.
### Response:
0
### Explanation:
5. We are unable to agree with that contention. The Government of the State undertook to pay the amount of the bonds in satisfaction of the liability of the debtor. The liability of the original debtor was extinguished and a fresh obligation was undertaken by the State Government in substitution of the original liability. The Government had the right to recover the amount due under the bonds from the landholder, but on that account the Government did not become the agent of the landholder for payment of his debts Even if the Government was unable to recover the money from the landholder, the liability undertaken by the Government under the bond remained unimpaired. The bond was a security for payment of the debt which completely replaced the original liability of the debtor.6. The decision in Cross(H. M. Inspector of Taxes) v. London and Provincial Trust Ltd., (1937) 21 Tax Cas705 on which counsel for the appellant relied has, in our judgment, no application to this case.It is necessary to state that the income-tax authorities have brought to tax the difference between the face value of the bonds and the principal which remained due in the relevant previous year. But what was taxable was only that income which represented the difference between the amount due as principal and the market value of the bonds (which were payable in twenty instalments) at the date of receipt. It is true that before the Income-tax Appellate Tribunal this question was not expressly pressed. The appellant did however contend that no part of the difference between the face value of the bonds and the principal amount due was taxable and the third question referred by the Tribunal was sufficiently comprehensive to justify consideration of the plea that a part of the difference only was taxable. Having regard to the argument presented before the Tribunal and the amplitude of the question referred, the High Court was in error in refusing to consider whether only a part of the difference between the face value of the bonds and the principal amount due to the appellant wasthat view we do not think it necessary to modify the answer recorded by the High Court on the third question.9. It is also necessary to observe that in the year 1949-50 the appellant had submitted a return disclosing the difference between the amount received by sale of the bonds and the principal amount due as income received in the previous relevant year. Whether that income was brought to tax pursuant to the return cannot be ascertained from theview of the statements made at the Bar we do not think it necessary to give any directions in that behalf also.Under Section 4 of theAct, 1922, the total income of any previous year of a resident assessee includes all income, profits and gains from whatever sources derived which are received or are deemed to be received in the taxable territories in such year by or on behalf of such person, or accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year, or accrue or arise to him without the taxable territories during such year, or having accrued or arisen to him without the taxable territories before the beginning of such year and after the 1st day of April, 1933, are brought into or received in the taxable territories by him during such year. The Act does not contain much guidance as to cases in which tax is to be levied on income received, and cases in which tax is to be levied on income accrued or arisen. Section 13 however requires that income, profits and gains for the purposes of Sections 10, and 12 shall be computed in accordance with the method of accounting regularly employed by the assessee. If accounts are maintained according to the mercantile system, whenever the right to receive money in the course of a trading transaction accrues or arises, even though income is not realised income embedded in the receipt is deemed to arise or accrue. Where the accounts are maintained on cash basis receipt of money or moneys worth and not the accrual of the right to receive is the determining factor.Therefore, if commercial assets are received by a trade maintaining accounts on cash basis in satisfaction of an obligation, income which is embedded in the value of the assets is deemed to be received the receipt of income is not deferred till the asset is realised in terms of cash or money. It makes no difference whether the receipt of assets is in pursuance of an agreement or that the trader is compelled by law to accept the assets from the debtor. Once title of the trader to an asset received is complete, whether by a consensual arrangement or by operation of law, he receives the income embedded in the value of the asset.In CalifornianCopper Syndicate (Limited and Reduced) v. Harris (Surveyor of Taxes), (1905) 5 Tax Cas159 Lord Trayner in dealing with a case of assessment to income tax of a Company formed for the purpose inter alia, of acquiring and reselling mining property resold the whole of its assets to a second Company and received payment in fully paid shares of the purchasing Companyprofit is realised when the seller gets the price he has bargained for. No doubt here the price took the form of fully paid shares in another company, but, if there can be no realised profit, except when that is paid in cash, the shares were realisable and could have been turned into cash, if the Appellants had been pleased to do so. I cannot think that Income Tax is due or not according to the manner in which the Parson making the profit pleases to deal with it."
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BANGALORE DEVELOPMENT AUTHORITY Vs. R.JAYAKUMAR & ORS | date of allotment. 6. Once this legal position and facts as accepted, we do not think that the respondents were entitled to any relief on the plea of parity relying upon the decision in the case of E.R. Manjaiah (supra). The facts in E.R. Manjaiah (supra) were different as the allottees had already been issued allotment letters for the sites under the notification dated 10.03.1988. Subsequently, the Authority could not allot the allotted sites to some of the allottees. Fresh allotment at new sites were made at a higher price. In E.R. Manjaiah (supra) it was held that while there was no vice of illegality or unconstitutionality in the power of the Authority to enhance the prices under Rule 12 of the Rules, the Authority had no right to alter the sital value according to its convenience or whims without furnishing any explanation. As Rule 12 is equally applicable to all persons similarly situated, the allottees given plots at the new sites could not be discriminated against other allottee given old sites on lower price on arbitrary grounds. Despite being similarly positioned with other allottees to the notification dated 10.03.1988, the allottees of the new sites had to pay a higher price. 7. We have already noticed the facts of the present case and find that the respondents had exercised their choice to be governed by the notification dated 15.10.1988, which means that they also agreed to the condition stipulated in Clause 16 under which the Authority had reserved its right to allot sites in any layout other than the one preferred by the applicants. All allottees under the 15.10.1988 Notification have been treated alike and similar price is payable. No allottee has been discriminated. Unlike E.R. Manjaiah (supra), the dispute herein arises concerning the Notification dated 15.10.1988, and not 10.03.1988 Notification, the terms of which were different. The notification dated 15.10.1988, unlike 10.03.1988, made only a provisional allotment to the applicants.4 Further, the scope of Clause 16 under the Notification dated 15.10.1988 is broader than the scope of Clause 145 under the Notification dated 10.03.1988. 8. Out of about 1571 applicants, who had exercised their choice to be governed by the notification dated 15.10.1988, about 168 applicants had objected and preferred the writ petitions before the High Court. The writ petitions were dismissed by a detailed order dated 14.12.1998 passed by the Single Judge in the case of R. Jayakumar & Others v. The Bangalore Development Authority & Others, 6 rightly distinguishing E.R. Manjaiah (supra) in view of the difference in the facts. However, the respondents on appeal had succeeded before the Division Bench, which had in a short order dated 30.08.2001, impugned in these appeals, simply referred to the decision in the case of E.R. Manjaiah (supra) to allow the appeals. The review petition filed by the Authority before the High Court was dismissed vide the second impugned order dated 12.04.2002. 9. On the filing of the Special Leave Petitions, vide order dated 15.07.2002, notice was issued, and it was directed that till further orders, refund of the amounts would be stayed. This was followed by the order dated 10.03.2003, which reads: Delay condoned. Substitution applications are allowed. I.A.No.172 IN SLP(C)No.13422/2002 By order dated 15th July, 2002, it was directed that till further orders the refund of the amount is stayed. This application has been filed seeking clarification of that order to the extent that only the refund of the amount has been stayed and the said order will not come in the way of the respondent-applicant in getting possession of the site on completion of all other formalities including execution of the sale deed. It is evident that the order dated 15th July, 2002 stays every kind of refund by Bangalore Development Authority to the respondent and it is not restricted only to prayer (iv) in the Writ Petition. In short, Bangalore Development Authority will not be required to make any payment to the respondent in terms of the impugned judgment till the decision of the petitions by this Court. Insofar as the delivery of possession and execution of the sale deed is concerned, Secretary of Bangalore Development Authority in his affidavit dated 21st February, 2003 has explained the difficulty in the matter. According to the affidavit, after the amendment of Site Rules in 1998 now an absolute sale deed is executed on allotment of sites and there is no lease-cum-sale deed. He says that in this eventuality of Bangalore Development Authority executing sale deed, it may not be able to recover the balance price payable on the site in the event of success of the authority in these Special Leave Petitions. In view of the above though we direct Bangalore Development Authority to execute the sale deed and deliver possession, but at the same time we also direct, the respondents will not, in any manner, part with possession, transfer or encumber the site till final decision by this Court. Further in case, any payment becomes due to the authority as a result of decision of this Court, the respondents will give an undertaking to the authority before the execution of sale deed that the same will be made within four weeks of the demand and the amount would be a charge on the site. I.A. is disposed of accordingly. 10. During the pendency of the present appeals, 119 out of about 168 of the writ petitioners had made applications or made payment to the Authority and have accordingly been deleted from the array of parties as respondents. 11. Our attention has been drawn to the order dated 09.09.2021 passed on an application moved by one such respondent. The order reads: xx xx xx Having heard learned counsel for the respective parties, IA No.16698/2021 is allowed with a direction to the Bangalore Development Authority to accept the enhanced amount of the sital value as well as the interest payable in terms of Rule 13 of the Bangalore Development Authority (Allotment of Site) Rules, 1984. xx xx xx | 1[ds]1. Having heard the learned counsel for the parties, we are of the opinion that the Division Bench of the High Court of Karnataka has erred by relying upon their earlier decision in the case of E.R. Manjaiah and others v. Bangalore Development Authority and others1 as the factual matrix in the present case is different.2. The respondents in the present case had exercised their option to be governed by the terms of the notification dated 15.10.1988. Therefore, the respondents by choice gave up their right to be governed by the earlier notification dated 10.03.1988. There were good-reasons why the respondents had given up their right to be allotted sites in terms of the notification dated 10.03.1988 as the Bangalore Development Authority2 was not in a position to make allotments to all the applicants registered under the notification dated 10.03.1988. In any case, once the respondents had by consent agreed to the terms and conditions mentioned in the notification dated 15.10.1988, they cannot fall back on the notification dated 10.03.1988.Interpreting the said Rule, the Division Bench in the case of E.R. Manjaiah (supra), referring to several decisions of this Court and Karnataka High Court, held that the Authority was entitled to charge the price prevailing on the date of allotment.6. Once this legal position and facts as accepted, we do not think that the respondents were entitled to any relief on the plea of parity relying upon the decision in the case of E.R. Manjaiah (supra). The facts in E.R. Manjaiah (supra) were different as the allottees had already been issued allotment letters for the sites under the notification dated 10.03.1988. Subsequently, the Authority could not allot the allotted sites to some of the allottees. Fresh allotment at new sites were made at a higher price. In E.R. Manjaiah (supra) it was held that while there was no vice of illegality or unconstitutionality in the power of the Authority to enhance the prices under Rule 12 of the Rules, the Authority had no right to alter the sital value according to its convenience or whims without furnishing any explanation. As Rule 12 is equally applicable to all persons similarly situated, the allottees given plots at the new sites could not be discriminated against other allottee given old sites on lower price on arbitrary grounds. Despite being similarly positioned with other allottees to the notification dated 10.03.1988, the allottees of the new sites had to pay a higher price.7. We have already noticed the facts of the present case and find that the respondents had exercised their choice to be governed by the notification dated 15.10.1988, which means that they also agreed to the condition stipulated in Clause 16 under which the Authority had reserved its right to allot sites in any layout other than the one preferred by the applicants. All allottees under the 15.10.1988 Notification have been treated alike and similar price is payable. No allottee has been discriminated. Unlike E.R. Manjaiah (supra), the dispute herein arises concerning the Notification dated 15.10.1988, and not 10.03.1988 Notification, the terms of which were different. The notification dated 15.10.1988, unlike 10.03.1988, made only a provisional allotment to the applicants.4 Further, the scope of Clause 16 under the Notification dated 15.10.1988 is broader than the scope of Clause 145 under the Notification dated 10.03.1988.8. Out of about 1571 applicants, who had exercised their choice to be governed by the notification dated 15.10.1988, about 168 applicants had objected and preferred the writ petitions before the High Court. The writ petitions were dismissed by a detailed order dated 14.12.1998 passed by the Single Judge in the case of R. Jayakumar & Others v. The Bangalore Development Authority & Others, 6 rightly distinguishing E.R. Manjaiah (supra) in view of the difference in the facts. However, the respondents on appeal had succeeded before the Division Bench, which had in a short order dated 30.08.2001, impugned in these appeals, simply referred to the decision in the case of E.R. Manjaiah (supra) to allow the appeals. The review petition filed by the Authority before the High Court was dismissed vide the second impugned order dated 12.04.2002.12. As we are allowing the present appeals, it would be just and fair if the remaining 49 respondents are given an opportunity to make payment of the enhanced amount of the sital value along with interest payable in terms of Rule 13 of the Rules. The said payment on self-computation by the respondents would be made within eight weeks. In case there is a dispute with regard to the quantum of interest payable, the Authority would notify the respondent with calculation, who would then either make payment of the interest or file response/objection. If the dispute cannot be resolved, the parties would be entitled to take recourse to appropriate remedies as available.10. During the pendency of the present appeals, 119 out of about 168 of the writ petitioners had made applications or made payment to the Authority and have accordingly been deleted from the array of parties as respondents. | 1 | 1,627 | 922 | ### 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:
date of allotment. 6. Once this legal position and facts as accepted, we do not think that the respondents were entitled to any relief on the plea of parity relying upon the decision in the case of E.R. Manjaiah (supra). The facts in E.R. Manjaiah (supra) were different as the allottees had already been issued allotment letters for the sites under the notification dated 10.03.1988. Subsequently, the Authority could not allot the allotted sites to some of the allottees. Fresh allotment at new sites were made at a higher price. In E.R. Manjaiah (supra) it was held that while there was no vice of illegality or unconstitutionality in the power of the Authority to enhance the prices under Rule 12 of the Rules, the Authority had no right to alter the sital value according to its convenience or whims without furnishing any explanation. As Rule 12 is equally applicable to all persons similarly situated, the allottees given plots at the new sites could not be discriminated against other allottee given old sites on lower price on arbitrary grounds. Despite being similarly positioned with other allottees to the notification dated 10.03.1988, the allottees of the new sites had to pay a higher price. 7. We have already noticed the facts of the present case and find that the respondents had exercised their choice to be governed by the notification dated 15.10.1988, which means that they also agreed to the condition stipulated in Clause 16 under which the Authority had reserved its right to allot sites in any layout other than the one preferred by the applicants. All allottees under the 15.10.1988 Notification have been treated alike and similar price is payable. No allottee has been discriminated. Unlike E.R. Manjaiah (supra), the dispute herein arises concerning the Notification dated 15.10.1988, and not 10.03.1988 Notification, the terms of which were different. The notification dated 15.10.1988, unlike 10.03.1988, made only a provisional allotment to the applicants.4 Further, the scope of Clause 16 under the Notification dated 15.10.1988 is broader than the scope of Clause 145 under the Notification dated 10.03.1988. 8. Out of about 1571 applicants, who had exercised their choice to be governed by the notification dated 15.10.1988, about 168 applicants had objected and preferred the writ petitions before the High Court. The writ petitions were dismissed by a detailed order dated 14.12.1998 passed by the Single Judge in the case of R. Jayakumar & Others v. The Bangalore Development Authority & Others, 6 rightly distinguishing E.R. Manjaiah (supra) in view of the difference in the facts. However, the respondents on appeal had succeeded before the Division Bench, which had in a short order dated 30.08.2001, impugned in these appeals, simply referred to the decision in the case of E.R. Manjaiah (supra) to allow the appeals. The review petition filed by the Authority before the High Court was dismissed vide the second impugned order dated 12.04.2002. 9. On the filing of the Special Leave Petitions, vide order dated 15.07.2002, notice was issued, and it was directed that till further orders, refund of the amounts would be stayed. This was followed by the order dated 10.03.2003, which reads: Delay condoned. Substitution applications are allowed. I.A.No.172 IN SLP(C)No.13422/2002 By order dated 15th July, 2002, it was directed that till further orders the refund of the amount is stayed. This application has been filed seeking clarification of that order to the extent that only the refund of the amount has been stayed and the said order will not come in the way of the respondent-applicant in getting possession of the site on completion of all other formalities including execution of the sale deed. It is evident that the order dated 15th July, 2002 stays every kind of refund by Bangalore Development Authority to the respondent and it is not restricted only to prayer (iv) in the Writ Petition. In short, Bangalore Development Authority will not be required to make any payment to the respondent in terms of the impugned judgment till the decision of the petitions by this Court. Insofar as the delivery of possession and execution of the sale deed is concerned, Secretary of Bangalore Development Authority in his affidavit dated 21st February, 2003 has explained the difficulty in the matter. According to the affidavit, after the amendment of Site Rules in 1998 now an absolute sale deed is executed on allotment of sites and there is no lease-cum-sale deed. He says that in this eventuality of Bangalore Development Authority executing sale deed, it may not be able to recover the balance price payable on the site in the event of success of the authority in these Special Leave Petitions. In view of the above though we direct Bangalore Development Authority to execute the sale deed and deliver possession, but at the same time we also direct, the respondents will not, in any manner, part with possession, transfer or encumber the site till final decision by this Court. Further in case, any payment becomes due to the authority as a result of decision of this Court, the respondents will give an undertaking to the authority before the execution of sale deed that the same will be made within four weeks of the demand and the amount would be a charge on the site. I.A. is disposed of accordingly. 10. During the pendency of the present appeals, 119 out of about 168 of the writ petitioners had made applications or made payment to the Authority and have accordingly been deleted from the array of parties as respondents. 11. Our attention has been drawn to the order dated 09.09.2021 passed on an application moved by one such respondent. The order reads: xx xx xx Having heard learned counsel for the respective parties, IA No.16698/2021 is allowed with a direction to the Bangalore Development Authority to accept the enhanced amount of the sital value as well as the interest payable in terms of Rule 13 of the Bangalore Development Authority (Allotment of Site) Rules, 1984. xx xx xx
### Response:
1
### Explanation:
1. Having heard the learned counsel for the parties, we are of the opinion that the Division Bench of the High Court of Karnataka has erred by relying upon their earlier decision in the case of E.R. Manjaiah and others v. Bangalore Development Authority and others1 as the factual matrix in the present case is different.2. The respondents in the present case had exercised their option to be governed by the terms of the notification dated 15.10.1988. Therefore, the respondents by choice gave up their right to be governed by the earlier notification dated 10.03.1988. There were good-reasons why the respondents had given up their right to be allotted sites in terms of the notification dated 10.03.1988 as the Bangalore Development Authority2 was not in a position to make allotments to all the applicants registered under the notification dated 10.03.1988. In any case, once the respondents had by consent agreed to the terms and conditions mentioned in the notification dated 15.10.1988, they cannot fall back on the notification dated 10.03.1988.Interpreting the said Rule, the Division Bench in the case of E.R. Manjaiah (supra), referring to several decisions of this Court and Karnataka High Court, held that the Authority was entitled to charge the price prevailing on the date of allotment.6. Once this legal position and facts as accepted, we do not think that the respondents were entitled to any relief on the plea of parity relying upon the decision in the case of E.R. Manjaiah (supra). The facts in E.R. Manjaiah (supra) were different as the allottees had already been issued allotment letters for the sites under the notification dated 10.03.1988. Subsequently, the Authority could not allot the allotted sites to some of the allottees. Fresh allotment at new sites were made at a higher price. In E.R. Manjaiah (supra) it was held that while there was no vice of illegality or unconstitutionality in the power of the Authority to enhance the prices under Rule 12 of the Rules, the Authority had no right to alter the sital value according to its convenience or whims without furnishing any explanation. As Rule 12 is equally applicable to all persons similarly situated, the allottees given plots at the new sites could not be discriminated against other allottee given old sites on lower price on arbitrary grounds. Despite being similarly positioned with other allottees to the notification dated 10.03.1988, the allottees of the new sites had to pay a higher price.7. We have already noticed the facts of the present case and find that the respondents had exercised their choice to be governed by the notification dated 15.10.1988, which means that they also agreed to the condition stipulated in Clause 16 under which the Authority had reserved its right to allot sites in any layout other than the one preferred by the applicants. All allottees under the 15.10.1988 Notification have been treated alike and similar price is payable. No allottee has been discriminated. Unlike E.R. Manjaiah (supra), the dispute herein arises concerning the Notification dated 15.10.1988, and not 10.03.1988 Notification, the terms of which were different. The notification dated 15.10.1988, unlike 10.03.1988, made only a provisional allotment to the applicants.4 Further, the scope of Clause 16 under the Notification dated 15.10.1988 is broader than the scope of Clause 145 under the Notification dated 10.03.1988.8. Out of about 1571 applicants, who had exercised their choice to be governed by the notification dated 15.10.1988, about 168 applicants had objected and preferred the writ petitions before the High Court. The writ petitions were dismissed by a detailed order dated 14.12.1998 passed by the Single Judge in the case of R. Jayakumar & Others v. The Bangalore Development Authority & Others, 6 rightly distinguishing E.R. Manjaiah (supra) in view of the difference in the facts. However, the respondents on appeal had succeeded before the Division Bench, which had in a short order dated 30.08.2001, impugned in these appeals, simply referred to the decision in the case of E.R. Manjaiah (supra) to allow the appeals. The review petition filed by the Authority before the High Court was dismissed vide the second impugned order dated 12.04.2002.12. As we are allowing the present appeals, it would be just and fair if the remaining 49 respondents are given an opportunity to make payment of the enhanced amount of the sital value along with interest payable in terms of Rule 13 of the Rules. The said payment on self-computation by the respondents would be made within eight weeks. In case there is a dispute with regard to the quantum of interest payable, the Authority would notify the respondent with calculation, who would then either make payment of the interest or file response/objection. If the dispute cannot be resolved, the parties would be entitled to take recourse to appropriate remedies as available.10. During the pendency of the present appeals, 119 out of about 168 of the writ petitioners had made applications or made payment to the Authority and have accordingly been deleted from the array of parties as respondents.
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Western U.P. Electric Power & Supplycompany Ltd Vs. State Of U.P. & Anr | Section 3 (2) (e) (ii) of the Indian Electricity Act, 1910 (Act No. IX of 1910) as amended by the Indian Electricity (Uttar Pradesh Sanshodhan) Adhiniyam, 1961 (U.P. Act No. x x x of 1961) that the U. P. State Electricity Board make the supply of electricity direct to the Hind Lamps Ltd., Shikohabad."There is ample evidence on the record to prove that uninterrupted supply of electrical energy to Hind Lamps was necessary in public interest, and the company was unable to ensure it. The only averment made in the petition filed by the Company before the High Court was that "the giving of the supply to Hind Lamps (Private) Ltd., could not be said to be in public interest as require by Section 3(2) (e) (ii) of the Indian Electricity Act, 1910 as amended by Indian Electricity (U. P. Amendment) Act xxx of 1961". No particulars were furnished in the petition. In the affidavit filed on behalf of the State Electricity Board it was affirmed that Hind Lamps was engaged in the manufacture of electric bulbs, flourescent tubes etc., and the process required uninterrupted supply; that it was one of the major industries of the State and was the only industry of its kind in the State; that as a result of the defective supply by the Company, Hind Lamps felt dissatisfied and informed the Government that if the supply position was not improved it would be forced to shift its factory from the State to some other State; that the industry gave employment to a number of people in the State and saved a large amount of foreign exchange and on that account the State Government was keen to give it fair and due protection that it deserved; that the total supply to electricity to the Company was 1700 K. W. and even if the entire supply under the agreement was made available by the Company to Hind Lamps it would fall short of its requirements.It was, therefore, in public interest that direct supply of energy should be made available to Hind Lamps. An affidavit containing similar averments was also filed on behalf of the State of Uttar Pradesh.13. There is no evidence on behalf of the Company to the contrary. For maintaining effective working of a large industry which gave scope for employment to the local population and earned foreign exchange, if it was necessary to give direct supply of electrical energy to Hind Lamps, the order to the Electricity Board to make direct supply of electrical energy to Hind Lamps was unquestionably in public interest within the meaning of Section 3 (2) (e) (ii) of the Act.14. There is no substance in the contention that by the issue of the order dated December 26, 1961, there was compulsory acquisition of the property of the Company without providing for compensation.By the grant of a licence under Act 9 of 1910 no monopoly was created in favour of the Company. The statute expressly reserves the right of the State to authorise supply of electrical energy through another licensee in the same area or to a consumer directly through the State Electricity Board. Assuming that the right to supply electrical energy is property (on that question we express no opinion), we are of the view that there is no infringement of the guarantee under Article 31 (2)of the Constitution.Clause (2) of Article 31 as amended by the Constitution (Fourth Amendment) Act, 1955, insofar as it is material, provides :"No property shall be compulsorily acquired * * * save for a public purpose and save by authority of a law which provides for compensation for the property so acquired * * * and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; * * *"Clause (2A) in substance defies compulsory acquisition or requisitioning of property within the meaning of Clause (2). It provides :"Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property."By Clause (2A) there is no compulsory acquisition or requisitioning of property, unless ownership or right to possession of the property stands transfer to the State or a corporation owned or controlled by the State. By the order granting direct supply of electrical energy ownership of property or right to possession of property was not transferred to the State or to a corporation owned or controlled by the State, and on that limited ground it must be held that Article 31 (2) has no application. The company may, it may be assumed, as a result of direct supply of electrical energy to Hind Lamps, suffer loss; but Article 31 (2) does not guarantee protection against that loss.15. The Company was afforded sufficient opportunity to make its representation before and after the impugned order was passed. Hind Lamps had submitted several representations to the Government of U. P. regarding inadequate and irregular supply of electrical energy. The Company was informed about the complaints made by Hind Lamps. Meetings were held in which certain steps to be taken by the Company to make the supply regular were agreed upon, but they were not carried out, presumably because the Company had not the requisite equipment for that purpose. The Company was asked to supply electrical energy as released in favour of Hind Lamps : it failed to do so. Representations made by the Company, after the order was passed, requesting thatthe order dated December 26, 1961, be withdrawn, were also considered by the Government and rejected. Adequate opportunity of making a representation was afforded to the Company to satisfy the State Government that it was not in the public interest to supply electrical energy directly of Hind Lamps. | 0[ds]7. Article 14 of the Constitution ensures equality among equals : its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law.In the present case there is no evidence about the rate charged for energy supplied by the State Electricity Board to the Company on December 26, 1961, nor is there any evidence on the record about the rates charged for electrical energy supplied to the consumers by the Company.8. The plea of discrimination has to be considered from two different points of view - (1) the discrimination between Hindu Lamps and the other consumers within the area of supply in respect of which the Company held the licence; and (2) discrimination in the rates of supply charged by the State Electricity Board to the Company and to Hind Lamps. There is no evidence on the record about the operative rates on the date of the impugned order. Again Hind Lamps was a consumer of electrical energy and so were the other consumers within the area of supply in respect of which the Company held the licence. But on that account it does not follow that they belong to the same class. In one case energy is being supplied by the Company and in the other by the State Electricity Board. Again, there is no grievance made by any consumer of energy that he is by the grant of preferential rates of Hind Lamps prejudicially treated. Other consumers of energy and Hind Lamps therefore do not belong to the same class, and there is no grievance by any consumer of any prejudicial treatment accorded to him.9. There is also no evidence that the rates charged by the State Electricity Board to Hind Lamps were lower than the rates charged to the Company. The Company and Hind Lamps again do not belong to the same class. The Company is a distributor of electrical energy, whereas Hind Lamps is a consumer. If the State Government charged different rates from persons belonging to the same class in the absence of any rational basis for that treatment, the plea of discrimination founded on differential rates may probably have some force. But the Company and Hind Lamps did not belong to the same class, and there is no evidence that for energy supplied different rates werefirst contention was, therefore, rightly negatived by the High Court.10. By the amendment made by U. P. Act 30 of 1961 electrical energy may be supplied by the State Government or the State Electricity Board within the same area in respect of which a licence is granted only if the State Government deems such supply "necessary in public interest". The High Court observed that "the State Government was the sole judge of the question whether direct supply of energy to Hind Lamps was or was not in the public interest. The test is of a subjective nature, no objective test being contemplated. Thus it is not open to this Court to examine whether it was necessary in the public interest. The subjective opinion of the Government is final in the matter, and the same is not justiciable or subject to judicial scrutiny as to sufficiency of the grounds on which the State Government has formed its opinion. In other words the Legislature has left it to the sole discretion of the State Government to decide whether a direct supply of energy was in the public interest".There is no evidence on behalf of the Company to the contrary. For maintaining effective working of a large industry which gave scope for employment to the local population and earned foreign exchange, if it was necessary to give direct supply of electrical energy to Hind Lamps, the order to the Electricity Board to make direct supply of electrical energy to Hind Lamps was unquestionably in public interest within the meaning of Section 3 (2) (e) (ii) of the Act.We are unable to agree with that view. By Section 3 (2) (e) as amended by the U. P. Act 30 of 1961, the Government is authorised to supply energy to consumers within the area of the licensee in certain conditions : exercise of the power is conditioned by the Government deeming it necessary in public interest to make such supply. If challenged, the Government must show that exercise of the power was necessary in public interest. The Court is thereby not intended to sit in appeal over the satisfaction of the Government. If there be prima facie evidence on which a reasonable body of persons may hold that it is in the public interest to supply energy directly to the consumers, the requirements of the statute are fulfilled. Normally a licensee of electrical energy, though he has no monopoly, is the person through whom electrical energy would be distributed within the area of supply, since the licensee has to lay down electric supply-lines for transmission of energy and to maintain its establishment. An inroad may be made in that right in the conditions which are statutorily prescribed. In our judgment, the satisfaction of the Government that the supply is necessary in the public interest is in appropriate cases not excluded from judicial review.12. But the decision of the High Court must still be maintained. The order issued by the Government recitedGovernor is satisfied that it is necessary in the public interest for the State Electricity Board to make the supply of electricity direct to the industry (Hind Lamps Private Ltd.) and is, therefore, pleased to order in exercise of the powers vested in him under Section 3 (2) (e) (ii) of the Indian Electricity Act, 1910 (Act No. IX of 1910) as amended by the Indian Electricity (Uttar Pradesh Sanshodhan) Adhiniyam, 1961 (U.P. Act No. x x x of 1961) that the U. P. State Electricity Board make the supply of electricity direct to the Hind Lamps Ltd.,is ample evidence on the record to prove that uninterrupted supply of electrical energy to Hind Lamps was necessary in public interest, and the company was unable to ensure it. The only averment made in the petition filed by the Company before the High Court was that "the giving of the supply to Hind Lamps (Private) Ltd., could not be said to be in public interest as require by Section 3(2) (e) (ii) of the Indian Electricity Act, 1910 as amended by Indian Electricity (U. P. Amendment) Act xxx of 1961". No particulars were furnished in the petition. In the affidavit filed on behalf of the State Electricity Board it was affirmed that Hind Lamps was engaged in the manufacture of electric bulbs, flourescent tubes etc., and the process required uninterrupted supply; that it was one of the major industries of the State and was the only industry of its kind in the State; that as a result of the defective supply by the Company, Hind Lamps felt dissatisfied and informed the Government that if the supply position was not improved it would be forced to shift its factory from the State to some other State; that the industry gave employment to a number of people in the State and saved a large amount of foreign exchange and on that account the State Government was keen to give it fair and due protection that it deserved; that the total supply to electricity to the Company was 1700 K. W. and even if the entire supply under the agreement was made available by the Company to Hind Lamps it would fall short of its requirements.It was, therefore, in public interest that direct supply of energy should be made available to Hind Lamps. An affidavit containing similar averments was also filed on behalf of the State of Uttar Pradesh.14. There is no substance in the contention that by the issue of the order dated December 26, 1961, there was compulsory acquisition of the property of the Company without providing for compensation.By the grant of a licence under Act 9 of 1910 no monopoly was created in favour of the Company. The statute expressly reserves the right of the State to authorise supply of electrical energy through another licensee in the same area or to a consumer directly through the State Electricity Board. Assuming that the right to supply electrical energy is property (on that question we express no opinion), we are of the view that there is no infringement of the guarantee under Article 31 (2)of the Constitution.Clause (2) of Article 31 as amended by the Constitution (Fourth Amendment) Act, 1955, insofar as it is material, providesproperty shall be compulsorily acquired * * * save for a public purpose and save by authority of a law which provides for compensation for the property so acquired * * * and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; * *(2A) in substance defies compulsory acquisition or requisitioning of property within the meaning of Clause (2). It providesa law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of hisClause (2A) there is no compulsory acquisition or requisitioning of property, unless ownership or right to possession of the property stands transfer to the State or a corporation owned or controlled by the State. By the order granting direct supply of electrical energy ownership of property or right to possession of property was not transferred to the State or to a corporation owned or controlled by the State, and on that limited ground it must be held that Article 31 (2) has no application. The company may, it may be assumed, as a result of direct supply of electrical energy to Hind Lamps, suffer loss; but Article 31 (2) does not guarantee protection against that loss.15. The Company was afforded sufficient opportunity to make its representation before and after the impugned order was passed. Hind Lamps had submitted several representations to the Government of U. P. regarding inadequate and irregular supply of electrical energy. The Company was informed about the complaints made by Hind Lamps. Meetings were held in which certain steps to be taken by the Company to make the supply regular were agreed upon, but they were not carried out, presumably because the Company had not the requisite equipment for that purpose. The Company was asked to supply electrical energy as released in favour of Hind Lamps : it failed to do so. Representations made by the Company, after the order was passed, requesting thatthe order dated December 26, 1961, be withdrawn, were also considered by the Government and rejected. Adequate opportunity of making a representation was afforded to the Company to satisfy the State Government that it was not in the public interest to supply electrical energy directly of Hind Lamps. | 0 | 3,689 | 2,068 | ### 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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Section 3 (2) (e) (ii) of the Indian Electricity Act, 1910 (Act No. IX of 1910) as amended by the Indian Electricity (Uttar Pradesh Sanshodhan) Adhiniyam, 1961 (U.P. Act No. x x x of 1961) that the U. P. State Electricity Board make the supply of electricity direct to the Hind Lamps Ltd., Shikohabad."There is ample evidence on the record to prove that uninterrupted supply of electrical energy to Hind Lamps was necessary in public interest, and the company was unable to ensure it. The only averment made in the petition filed by the Company before the High Court was that "the giving of the supply to Hind Lamps (Private) Ltd., could not be said to be in public interest as require by Section 3(2) (e) (ii) of the Indian Electricity Act, 1910 as amended by Indian Electricity (U. P. Amendment) Act xxx of 1961". No particulars were furnished in the petition. In the affidavit filed on behalf of the State Electricity Board it was affirmed that Hind Lamps was engaged in the manufacture of electric bulbs, flourescent tubes etc., and the process required uninterrupted supply; that it was one of the major industries of the State and was the only industry of its kind in the State; that as a result of the defective supply by the Company, Hind Lamps felt dissatisfied and informed the Government that if the supply position was not improved it would be forced to shift its factory from the State to some other State; that the industry gave employment to a number of people in the State and saved a large amount of foreign exchange and on that account the State Government was keen to give it fair and due protection that it deserved; that the total supply to electricity to the Company was 1700 K. W. and even if the entire supply under the agreement was made available by the Company to Hind Lamps it would fall short of its requirements.It was, therefore, in public interest that direct supply of energy should be made available to Hind Lamps. An affidavit containing similar averments was also filed on behalf of the State of Uttar Pradesh.13. There is no evidence on behalf of the Company to the contrary. For maintaining effective working of a large industry which gave scope for employment to the local population and earned foreign exchange, if it was necessary to give direct supply of electrical energy to Hind Lamps, the order to the Electricity Board to make direct supply of electrical energy to Hind Lamps was unquestionably in public interest within the meaning of Section 3 (2) (e) (ii) of the Act.14. There is no substance in the contention that by the issue of the order dated December 26, 1961, there was compulsory acquisition of the property of the Company without providing for compensation.By the grant of a licence under Act 9 of 1910 no monopoly was created in favour of the Company. The statute expressly reserves the right of the State to authorise supply of electrical energy through another licensee in the same area or to a consumer directly through the State Electricity Board. Assuming that the right to supply electrical energy is property (on that question we express no opinion), we are of the view that there is no infringement of the guarantee under Article 31 (2)of the Constitution.Clause (2) of Article 31 as amended by the Constitution (Fourth Amendment) Act, 1955, insofar as it is material, provides :"No property shall be compulsorily acquired * * * save for a public purpose and save by authority of a law which provides for compensation for the property so acquired * * * and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; * * *"Clause (2A) in substance defies compulsory acquisition or requisitioning of property within the meaning of Clause (2). It provides :"Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property."By Clause (2A) there is no compulsory acquisition or requisitioning of property, unless ownership or right to possession of the property stands transfer to the State or a corporation owned or controlled by the State. By the order granting direct supply of electrical energy ownership of property or right to possession of property was not transferred to the State or to a corporation owned or controlled by the State, and on that limited ground it must be held that Article 31 (2) has no application. The company may, it may be assumed, as a result of direct supply of electrical energy to Hind Lamps, suffer loss; but Article 31 (2) does not guarantee protection against that loss.15. The Company was afforded sufficient opportunity to make its representation before and after the impugned order was passed. Hind Lamps had submitted several representations to the Government of U. P. regarding inadequate and irregular supply of electrical energy. The Company was informed about the complaints made by Hind Lamps. Meetings were held in which certain steps to be taken by the Company to make the supply regular were agreed upon, but they were not carried out, presumably because the Company had not the requisite equipment for that purpose. The Company was asked to supply electrical energy as released in favour of Hind Lamps : it failed to do so. Representations made by the Company, after the order was passed, requesting thatthe order dated December 26, 1961, be withdrawn, were also considered by the Government and rejected. Adequate opportunity of making a representation was afforded to the Company to satisfy the State Government that it was not in the public interest to supply electrical energy directly of Hind Lamps.
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statutorily prescribed. In our judgment, the satisfaction of the Government that the supply is necessary in the public interest is in appropriate cases not excluded from judicial review.12. But the decision of the High Court must still be maintained. The order issued by the Government recitedGovernor is satisfied that it is necessary in the public interest for the State Electricity Board to make the supply of electricity direct to the industry (Hind Lamps Private Ltd.) and is, therefore, pleased to order in exercise of the powers vested in him under Section 3 (2) (e) (ii) of the Indian Electricity Act, 1910 (Act No. IX of 1910) as amended by the Indian Electricity (Uttar Pradesh Sanshodhan) Adhiniyam, 1961 (U.P. Act No. x x x of 1961) that the U. P. State Electricity Board make the supply of electricity direct to the Hind Lamps Ltd.,is ample evidence on the record to prove that uninterrupted supply of electrical energy to Hind Lamps was necessary in public interest, and the company was unable to ensure it. The only averment made in the petition filed by the Company before the High Court was that "the giving of the supply to Hind Lamps (Private) Ltd., could not be said to be in public interest as require by Section 3(2) (e) (ii) of the Indian Electricity Act, 1910 as amended by Indian Electricity (U. P. Amendment) Act xxx of 1961". No particulars were furnished in the petition. In the affidavit filed on behalf of the State Electricity Board it was affirmed that Hind Lamps was engaged in the manufacture of electric bulbs, flourescent tubes etc., and the process required uninterrupted supply; that it was one of the major industries of the State and was the only industry of its kind in the State; that as a result of the defective supply by the Company, Hind Lamps felt dissatisfied and informed the Government that if the supply position was not improved it would be forced to shift its factory from the State to some other State; that the industry gave employment to a number of people in the State and saved a large amount of foreign exchange and on that account the State Government was keen to give it fair and due protection that it deserved; that the total supply to electricity to the Company was 1700 K. W. and even if the entire supply under the agreement was made available by the Company to Hind Lamps it would fall short of its requirements.It was, therefore, in public interest that direct supply of energy should be made available to Hind Lamps. An affidavit containing similar averments was also filed on behalf of the State of Uttar Pradesh.14. There is no substance in the contention that by the issue of the order dated December 26, 1961, there was compulsory acquisition of the property of the Company without providing for compensation.By the grant of a licence under Act 9 of 1910 no monopoly was created in favour of the Company. The statute expressly reserves the right of the State to authorise supply of electrical energy through another licensee in the same area or to a consumer directly through the State Electricity Board. Assuming that the right to supply electrical energy is property (on that question we express no opinion), we are of the view that there is no infringement of the guarantee under Article 31 (2)of the Constitution.Clause (2) of Article 31 as amended by the Constitution (Fourth Amendment) Act, 1955, insofar as it is material, providesproperty shall be compulsorily acquired * * * save for a public purpose and save by authority of a law which provides for compensation for the property so acquired * * * and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; * *(2A) in substance defies compulsory acquisition or requisitioning of property within the meaning of Clause (2). It providesa law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of hisClause (2A) there is no compulsory acquisition or requisitioning of property, unless ownership or right to possession of the property stands transfer to the State or a corporation owned or controlled by the State. By the order granting direct supply of electrical energy ownership of property or right to possession of property was not transferred to the State or to a corporation owned or controlled by the State, and on that limited ground it must be held that Article 31 (2) has no application. The company may, it may be assumed, as a result of direct supply of electrical energy to Hind Lamps, suffer loss; but Article 31 (2) does not guarantee protection against that loss.15. The Company was afforded sufficient opportunity to make its representation before and after the impugned order was passed. Hind Lamps had submitted several representations to the Government of U. P. regarding inadequate and irregular supply of electrical energy. The Company was informed about the complaints made by Hind Lamps. Meetings were held in which certain steps to be taken by the Company to make the supply regular were agreed upon, but they were not carried out, presumably because the Company had not the requisite equipment for that purpose. The Company was asked to supply electrical energy as released in favour of Hind Lamps : it failed to do so. Representations made by the Company, after the order was passed, requesting thatthe order dated December 26, 1961, be withdrawn, were also considered by the Government and rejected. Adequate opportunity of making a representation was afforded to the Company to satisfy the State Government that it was not in the public interest to supply electrical energy directly of Hind Lamps.
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Sriram Narayan Medhi Vs. The State of Maharashtra | tenants specially belonging to the Scheduled Caste and Scheduled Tribe, the purchase is in danger of being ineffective for failure to deposit the sale price on due dates. It is noticed that these tenants being illiterate and socially backward have failed to deposit the amount more of ignorance than willful default. Unless therefore immediate steps are taken to provide for recovery of purchase price through Government agency a large number of tenants are likely to be evicted from their lands due to purchase becoming ineffective. This will result in defeating the object of the tenancy legislation. To avoid this result, it is therefore considered that the agricultural lands tribunal should be empowered to recover the purchase price from tenants as arrears of land revenue and until the tribunal has failed to recover the purchase price, the purchase should not become ineffective. It is also considered that the benefit of these provisions should be given to tenants whose purchase has already become ineffective but who have not yet been evicted from their lands under Section 32-P. This bill is intended to achieve these objects."14. We do not therefore think that the impugned Act has in anyway affected the main purpose of the Act or the object which it seeks to achieve nor do the amendments effected thereby take the provisions out of the protection given to it under Article 31-A of the Constitution.15. Shri Tarkunde has referred us to the case of Maharana Shri Jayvantsinghji Ranmalsinghji v. The State of Gujarat, (1962) Supp 2 SCR 411 = (AIR 1962 SC 821 ), in support of his contention that the impugned Act infringes Article 19 (1) (f) of the Constitution and is not saved by Clause 5 thereof as the provisions of the said Act are unreasonable in that the indefinite postponement of the recovery of the price makes the payment thereof illusory, and even after the sale has become ineffective the landholder is not entitled to recover the land.16. What fell for determination in the case referred to was whether as a result of the provisions of the Bombay Land Tenure Abolition Laws (Amendment) Act 1958, particularly under Sections 3 and 4 read with Section 6 thereof certain non permanent tenants were deemed to have become permanent tenants as from the commencement of the Bombay Taluqdari Tenure Abolition Act 1949 and thereby became entitled to acquire the tenure on payment of 6 times the assessment or 6 times the rent instead of at least the minimum of 20 times to 200 times the assessment which right infringed the fundamental right of the landlord to acquire hold and dispose of property. This result it was contended had substantially deprived the petitioners of the right which they acquired on the tillers day by reason of the provisions contained in Section 32 and other provisions in the parent Act as amended from time to time. The majority held that the provisions of Sections 3, 4 and 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act 1958 in so far as they deemed some tenants as permanent tenants in possession of Taluqdari land were unconstitutional and void in that under the guise of changing the definition of a permanent tenant and changing a rule of evidence, it really reduced the purchase price that the petitioners were entitled to receive from some of their tenants on the tillers day under Section 32-H of the parent Act.17. It would appear from the Judgment of S. K. Das, J. speaking for himself and Sinha C. J., that the constitutional validity of the relevant provisions of the Taluqdari Abolition Act 1949 and the parent Act read with the Amendment Act had not been challenged before them. The decision of Dhirubha Devisingh Gohil v. The State of Bombay, (1955) 1 SCR 691 = (AIR 1955 SC 47 ) and (1959) 1 Suppl SCR 489 = (AIR 1959 SC 459 ), were cited as upholding the constitutionality of the relevant provisions of those two Acts.18. After pointing out that what has been challenged before them was the constitutional validity of the Bombay Act LVII of 1958 particularly the provisions 3, 4 and 6 of that Act, and referring to the earlier decision that this Court had held that Ss. 32 to 32-R of parent Act read with the Amendment Act were designed to bring about an extinguishment or in any event a modification of the landlords rights in the estate within the meaning of Article 31-A (1) (a) of the Constitution, it was observed that the right which the petitioners got of receiving the purchase price was undoubtedly a right to property guaranteed under Article 19 (1) (f) of the Constitution and was not saved by Clause 5 thereof nor are the cases before them protected by Article 31-A. S. K. Das, J. gave the following reasoning for the aforesaid conclusion at pages 438-439:"The petitioners have three kinds of tenants permanent tenants, protected tenants, and ordinary tenants. On April 1, 1957, the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under Section 32-H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with Section 83 of the Revenue Code. Such a claim could be contested by the tenure-holder whenever made by the tenant. But by the impugned Act 1958, all this was changed, and unless the tenture holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure-land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant. We are unable to hold that the six months limit imposed by Section 5 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Article 19 (5) of the Constitution."19. | 0[ds]We do not therefore think that the impugned Act has in anyway affected the main purpose of the Act or the object which it seeks to achieve nor do the amendments effected thereby take the provisions out of the protection given to it under Article 31-A of the Constitution.15.What fell for determination in the case referred to was whether as a result of the provisions of the Bombay Land Tenure Abolition Laws (Amendment) Act 1958, particularly under Sections 3 and 4 read with Section 6 thereof certain non permanent tenants were deemed to have become permanent tenants as from the commencement of the Bombay Taluqdari Tenure Abolition Act 1949 and thereby became entitled to acquire the tenure on payment of 6 times the assessment or 6 times the rent instead of at least the minimum of 20 times to 200 times the assessment which right infringed the fundamental right of the landlord to acquire hold and dispose of property. This result it was contended had substantially deprived the petitioners of the right which they acquired on the tillers day by reason of the provisions contained in Section 32 and other provisions in the parent Act as amended from time to time. The majority held that the provisions of Sections 3, 4 and 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act 1958 in so far as they deemed some tenants as permanent tenants in possession of Taluqdari land were unconstitutional and void in that under the guise of changing the definition of a permanent tenant and changing a rule of evidence, it really reduced the purchase price that the petitioners were entitled to receive from some of their tenants on the tillers day under Section 32-H of the parent Act. | 0 | 4,162 | 305 | ### 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:
tenants specially belonging to the Scheduled Caste and Scheduled Tribe, the purchase is in danger of being ineffective for failure to deposit the sale price on due dates. It is noticed that these tenants being illiterate and socially backward have failed to deposit the amount more of ignorance than willful default. Unless therefore immediate steps are taken to provide for recovery of purchase price through Government agency a large number of tenants are likely to be evicted from their lands due to purchase becoming ineffective. This will result in defeating the object of the tenancy legislation. To avoid this result, it is therefore considered that the agricultural lands tribunal should be empowered to recover the purchase price from tenants as arrears of land revenue and until the tribunal has failed to recover the purchase price, the purchase should not become ineffective. It is also considered that the benefit of these provisions should be given to tenants whose purchase has already become ineffective but who have not yet been evicted from their lands under Section 32-P. This bill is intended to achieve these objects."14. We do not therefore think that the impugned Act has in anyway affected the main purpose of the Act or the object which it seeks to achieve nor do the amendments effected thereby take the provisions out of the protection given to it under Article 31-A of the Constitution.15. Shri Tarkunde has referred us to the case of Maharana Shri Jayvantsinghji Ranmalsinghji v. The State of Gujarat, (1962) Supp 2 SCR 411 = (AIR 1962 SC 821 ), in support of his contention that the impugned Act infringes Article 19 (1) (f) of the Constitution and is not saved by Clause 5 thereof as the provisions of the said Act are unreasonable in that the indefinite postponement of the recovery of the price makes the payment thereof illusory, and even after the sale has become ineffective the landholder is not entitled to recover the land.16. What fell for determination in the case referred to was whether as a result of the provisions of the Bombay Land Tenure Abolition Laws (Amendment) Act 1958, particularly under Sections 3 and 4 read with Section 6 thereof certain non permanent tenants were deemed to have become permanent tenants as from the commencement of the Bombay Taluqdari Tenure Abolition Act 1949 and thereby became entitled to acquire the tenure on payment of 6 times the assessment or 6 times the rent instead of at least the minimum of 20 times to 200 times the assessment which right infringed the fundamental right of the landlord to acquire hold and dispose of property. This result it was contended had substantially deprived the petitioners of the right which they acquired on the tillers day by reason of the provisions contained in Section 32 and other provisions in the parent Act as amended from time to time. The majority held that the provisions of Sections 3, 4 and 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act 1958 in so far as they deemed some tenants as permanent tenants in possession of Taluqdari land were unconstitutional and void in that under the guise of changing the definition of a permanent tenant and changing a rule of evidence, it really reduced the purchase price that the petitioners were entitled to receive from some of their tenants on the tillers day under Section 32-H of the parent Act.17. It would appear from the Judgment of S. K. Das, J. speaking for himself and Sinha C. J., that the constitutional validity of the relevant provisions of the Taluqdari Abolition Act 1949 and the parent Act read with the Amendment Act had not been challenged before them. The decision of Dhirubha Devisingh Gohil v. The State of Bombay, (1955) 1 SCR 691 = (AIR 1955 SC 47 ) and (1959) 1 Suppl SCR 489 = (AIR 1959 SC 459 ), were cited as upholding the constitutionality of the relevant provisions of those two Acts.18. After pointing out that what has been challenged before them was the constitutional validity of the Bombay Act LVII of 1958 particularly the provisions 3, 4 and 6 of that Act, and referring to the earlier decision that this Court had held that Ss. 32 to 32-R of parent Act read with the Amendment Act were designed to bring about an extinguishment or in any event a modification of the landlords rights in the estate within the meaning of Article 31-A (1) (a) of the Constitution, it was observed that the right which the petitioners got of receiving the purchase price was undoubtedly a right to property guaranteed under Article 19 (1) (f) of the Constitution and was not saved by Clause 5 thereof nor are the cases before them protected by Article 31-A. S. K. Das, J. gave the following reasoning for the aforesaid conclusion at pages 438-439:"The petitioners have three kinds of tenants permanent tenants, protected tenants, and ordinary tenants. On April 1, 1957, the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under Section 32-H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with Section 83 of the Revenue Code. Such a claim could be contested by the tenure-holder whenever made by the tenant. But by the impugned Act 1958, all this was changed, and unless the tenture holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure-land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant. We are unable to hold that the six months limit imposed by Section 5 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Article 19 (5) of the Constitution."19.
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We do not therefore think that the impugned Act has in anyway affected the main purpose of the Act or the object which it seeks to achieve nor do the amendments effected thereby take the provisions out of the protection given to it under Article 31-A of the Constitution.15.What fell for determination in the case referred to was whether as a result of the provisions of the Bombay Land Tenure Abolition Laws (Amendment) Act 1958, particularly under Sections 3 and 4 read with Section 6 thereof certain non permanent tenants were deemed to have become permanent tenants as from the commencement of the Bombay Taluqdari Tenure Abolition Act 1949 and thereby became entitled to acquire the tenure on payment of 6 times the assessment or 6 times the rent instead of at least the minimum of 20 times to 200 times the assessment which right infringed the fundamental right of the landlord to acquire hold and dispose of property. This result it was contended had substantially deprived the petitioners of the right which they acquired on the tillers day by reason of the provisions contained in Section 32 and other provisions in the parent Act as amended from time to time. The majority held that the provisions of Sections 3, 4 and 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act 1958 in so far as they deemed some tenants as permanent tenants in possession of Taluqdari land were unconstitutional and void in that under the guise of changing the definition of a permanent tenant and changing a rule of evidence, it really reduced the purchase price that the petitioners were entitled to receive from some of their tenants on the tillers day under Section 32-H of the parent Act.
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KAMAL KUMAR Vs. PREMLATA JOSHI | Abhay Manohar Sapre, J. 1. This appeal is directed against the final judgment and order dated 08.01.2008 passed by the High Court of Madhya Pradesh at Jabalpur in F.A. No.808 of 2000 whereby the Division Bench of the High Court dismissed the first appeal filed by the appellant herein and affirmed the judgment and decree dated 31.08.2000 passed by the Additional District Judge, Harda in Civil Suit No.19-A/97. 2. Few facts need mention infra for the disposal of this appeal. 3. The appellant is the plaintiff whereas the respondents are the defendants in the civil suit out of which this appeal arises. 4. The appellant filed the civil suit against the respondents claiming specific performance of the contract in relation to the suit land. The respondents contested the suit. 5. By judgment/decree dated 31.8.2000, the Trial Court dismissed the suit. The plaintiff felt aggrieved and filed first appeal before the High Court of M.P. at Jabalpur. By impugned judgment, the High Court dismissed the appeal and affirmed the judgment and decree of the Trial Court, which has given rise to filing of this appeal by way of special leave by the appellant(plaintiff) before this Court. 6. Heard Mr. Navin Prakash, learned counsel for the appellant and Mr. Sumit Kumar Sharma, learned counsel for the respondents. 7. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 8. In our considered opinion, the concurrent findings of facts recorded by the two Courts below on all the material issues are binding on this Court. It is much more so when we are unable to notice any kind of perversity or illegality in the findings. 9. In other words, the findings apart from being concurrent are such that they are capable of being recorded on appreciation of evidence adduced by the parties. These findings are neither against the pleadings nor the evidence and nor any principle of law. These findings are also not shown to be perverse to the extent that no judicial person can ever record such findings. 10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiffagainst the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. 11. In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts. 12. In the case at hand, we find that the two Courts below have gone into these questions in the light of pleadings and evidence and recorded a categorical finding against the plaintiff holding that the plaintiff was neither ready and nor willing to perform his part of the contract and, therefore, he was not entitled to claim the relief of specific performance of the contract against the defendants in relation to the suit land.It was also held that the plaintiff was not entitled to claim any relief of refund of earnest money because it was liable to be adjusted as agreed between them. 13. In other words, both the Courts below held that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract. The issue of readiness and willingness, in our view, is the most important issue for considering the grant of specific performance of the contract and the same having been held by the two Courts below on appreciation of evidence against the plaintiff, it is binding on this Court.It being essentially a question of fact, this Court is not inclined to again appreciate the entireevidence whilehearingtheappealunder Article 136 of the Constitution.It is more so when we find that the appellant was also not able to point out any material perversity or/and illegality in the finding so as to call for any interference therein by this Court. | 0[ds]7. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.8. In our considered opinion, the concurrent findings of facts recorded by the two Courts below on all the material issues are binding on this Court. It is much more so when we are unable to notice any kind of perversity or illegality in the findings.9. In other words, the findings apart from being concurrent are such that they are capable of being recorded on appreciation of evidence adduced by the parties. These findings are neither against the pleadings nor the evidence and nor any principle of law. These findings are also not shown to be perverse to the extent that no judicial person can ever record such findings.10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief.11. In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.12. In the case at hand, we find that the two Courts below have gone into these questions in the light of pleadings and evidence and recorded a categorical finding against the plaintiff holding that the plaintiff was neither ready and nor willing to perform his part of the contract and, therefore, he was not entitled to claim the relief of specific performance of the contract against the defendants in relation to the suit land.It was also held that the plaintiff was not entitled to claim any relief of refund of earnest money because it was liable to be adjusted as agreed between them.13. In other words, both the Courts below held that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract. The issue of readiness and willingness, in our view, is the most important issue for considering the grant of specific performance of the contract and the same having been held by the two Courts below on appreciation of evidence against the plaintiff, it is binding on this Court.It being essentially a question of fact, this Court is not inclined to again appreciate the entireunder Article 136 of the Constitution.It is more so when we find that the appellant was also not able to point out any material perversity or/and illegality in the finding so as to call for any interference therein by this Court. | 0 | 990 | 525 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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Abhay Manohar Sapre, J. 1. This appeal is directed against the final judgment and order dated 08.01.2008 passed by the High Court of Madhya Pradesh at Jabalpur in F.A. No.808 of 2000 whereby the Division Bench of the High Court dismissed the first appeal filed by the appellant herein and affirmed the judgment and decree dated 31.08.2000 passed by the Additional District Judge, Harda in Civil Suit No.19-A/97. 2. Few facts need mention infra for the disposal of this appeal. 3. The appellant is the plaintiff whereas the respondents are the defendants in the civil suit out of which this appeal arises. 4. The appellant filed the civil suit against the respondents claiming specific performance of the contract in relation to the suit land. The respondents contested the suit. 5. By judgment/decree dated 31.8.2000, the Trial Court dismissed the suit. The plaintiff felt aggrieved and filed first appeal before the High Court of M.P. at Jabalpur. By impugned judgment, the High Court dismissed the appeal and affirmed the judgment and decree of the Trial Court, which has given rise to filing of this appeal by way of special leave by the appellant(plaintiff) before this Court. 6. Heard Mr. Navin Prakash, learned counsel for the appellant and Mr. Sumit Kumar Sharma, learned counsel for the respondents. 7. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 8. In our considered opinion, the concurrent findings of facts recorded by the two Courts below on all the material issues are binding on this Court. It is much more so when we are unable to notice any kind of perversity or illegality in the findings. 9. In other words, the findings apart from being concurrent are such that they are capable of being recorded on appreciation of evidence adduced by the parties. These findings are neither against the pleadings nor the evidence and nor any principle of law. These findings are also not shown to be perverse to the extent that no judicial person can ever record such findings. 10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiffagainst the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. 11. In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts. 12. In the case at hand, we find that the two Courts below have gone into these questions in the light of pleadings and evidence and recorded a categorical finding against the plaintiff holding that the plaintiff was neither ready and nor willing to perform his part of the contract and, therefore, he was not entitled to claim the relief of specific performance of the contract against the defendants in relation to the suit land.It was also held that the plaintiff was not entitled to claim any relief of refund of earnest money because it was liable to be adjusted as agreed between them. 13. In other words, both the Courts below held that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract. The issue of readiness and willingness, in our view, is the most important issue for considering the grant of specific performance of the contract and the same having been held by the two Courts below on appreciation of evidence against the plaintiff, it is binding on this Court.It being essentially a question of fact, this Court is not inclined to again appreciate the entireevidence whilehearingtheappealunder Article 136 of the Constitution.It is more so when we find that the appellant was also not able to point out any material perversity or/and illegality in the finding so as to call for any interference therein by this Court.
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7. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.8. In our considered opinion, the concurrent findings of facts recorded by the two Courts below on all the material issues are binding on this Court. It is much more so when we are unable to notice any kind of perversity or illegality in the findings.9. In other words, the findings apart from being concurrent are such that they are capable of being recorded on appreciation of evidence adduced by the parties. These findings are neither against the pleadings nor the evidence and nor any principle of law. These findings are also not shown to be perverse to the extent that no judicial person can ever record such findings.10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief.11. In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.12. In the case at hand, we find that the two Courts below have gone into these questions in the light of pleadings and evidence and recorded a categorical finding against the plaintiff holding that the plaintiff was neither ready and nor willing to perform his part of the contract and, therefore, he was not entitled to claim the relief of specific performance of the contract against the defendants in relation to the suit land.It was also held that the plaintiff was not entitled to claim any relief of refund of earnest money because it was liable to be adjusted as agreed between them.13. In other words, both the Courts below held that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract. The issue of readiness and willingness, in our view, is the most important issue for considering the grant of specific performance of the contract and the same having been held by the two Courts below on appreciation of evidence against the plaintiff, it is binding on this Court.It being essentially a question of fact, this Court is not inclined to again appreciate the entireunder Article 136 of the Constitution.It is more so when we find that the appellant was also not able to point out any material perversity or/and illegality in the finding so as to call for any interference therein by this Court.
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The Official Liquidator Vs. Raghawa Desikachar and Ors | held by the Company, and consequently the Company agreed to give an infringement commission of 4 per cent to the Bombay Company. This amount of Rupees 20,000/- is claimed out of that amount. It is contended that Bhopal was within the area allotted to the Nagpur Company and, therefore, it was entitled to the commission. This was denied by the Directors. The Official Liquidator failed to establish that the Nagpur Company was entitled to the whole or part of the infringement commission by reason of the fact that it was a sole selling agent of the General Motors parts in that particular area or it had an exclusive Sub-agency from the Bombay Company. The High Court considered that the evidence in the case was not sufficient to establish either of these claims. We have not been persuaded to hold otherwise.11. In so far as item (2) for Rs.36,000/- is concerned, here again the Nagpur Company was being paid 15 per cent and 20 per cent commission in respect of machinery and spare parts respectively by the Bombay Company which Company was retaining 5 per cent of the commission in respect of the orders placed by the Nagpur Company. According to the Official Liquidator the Bombay Company was only entitled to retain 2 per cent and consequently the Nagpur Company would be entitled to a further 3 per cent which had been wrongly withheld. Here again the High Court considered that there was not sufficient evidence to sustain the claim. Shantilal Shah who gave evidence did not spell out the actual terms of the agreement between the Nagpur Company and the Bombay Company by reason of which the Bombay Company was entitled to retain only 2 per cent and not 5 per cent. It was held, and there is nothing to establish to the contrary inasmuch as the evidence of respondents 1 to 4 as Directors of the Company was confirmed by the first minutes, the explanation given by the respondents must be accepted. Reliance was placed on sub-item (2) of Item 2 of the minutes of the Board of Directors of the sister companies at which Shantilal Shah was also present. It was agreed and accepted by all the associates that a commission of 2 per cent on all such imports on the c.i.f. or f.o.b. invoice value, as the case may be, should be paid to the Bombay Office. But in so far as sub-item V of Item III was concerned, it was unanimously agreed that the associated offices should pay a commission of 5 per cent on their imports covered by the licences owned by the Bombay office.12. The third item is for Rs.30,000/- in connection with the supplies to Model Mills and the Power House in Nagpur with the products of the Mysore Electric Company Ltd. There was some suggestion that the Bombay Company should reduce its commission from 5 per cent to 2 per cent but as the High Court pointed out that it had absolutely no connection whatsoever with the inter-Company transactions in respect of goods of which agency was held by the Bombay Company. The evidence of Shantilal Shah in this regard was considered to be highly unsatisfactory. Apart from that Exhibit T - a letter dated February 2, 1950, clearly showed that the arrangement between the Nagpur Company and the Bombay Company was to give commission at a particular rate. The High Court extracted the relevant portion of the letter which merits repetition. It says:"I am glad to inform you that we have been able to get some additional concession by way of extra discounts from the Mysore Lamp Works and as intimated to you personally during your recent visit, we shall give you a portion of this extra commission, thus in all 25 and 2 1/2 per cent discount on the list price."It is no ones case that the commission according to this letter was not paid and as the Nagpur Company has received this commission it cannot claim any additional commission.13. In so far as item (4) is concerned, it has reference to four amounts, namely, Rs.7,689/12/-, Rs.2,184/-; Rs.9,827/- and Rs.2,100/-. Nothing has been shown as to why these claims were not properly allowed. The appellant, however, challenges the item for Rs.9,827/- as not being the correct amount. In fact the book value is Rs.39,309/4/9. The High Court took the difference between the book value and the stock purchased by the Bombay Company after August 28, 1952, since the date of resignation of Shantilal Shah. Accordingly it took the opening stock as per the balance sheet dated March 31, 1953, at Rs.53,574-4-0. The closing stock as per audit report dated March 31, 1953, reduced to the extent of 7/9 was Rs.24,092-0-0 leaving an amount of Rs.29,482-4-9. This amount was transferred to the Bombay Office and the difference between the above amounts amounted to Rs.9,827/-. Shantilal Shah was questioned about this, but he did not know how it was made up of. No explanation was also given on behalf of the Official Liquidator as to how the item was made up of. For this reason this item was not allowed. Similarly no exception can be taken to the amount of Rs.2,100/- which was allowed because the scooter was sold to the Delhi Branch for only Rs.600/-. These two items namely Rs.9,827/- and Rupees 2,100/- which are allowable to the Liquidator come to Rs.11,927/-. This other two items for Rs.7,689/12/- and Rs.2,184/- which relate to the purchases actually made by the Bombay Company in pursuance of their offer and in pursuance of the majority resolution of April 25, 1953, and the difference between the book value and the purchase value of the car by the Bombay Company were also allowed. Apart from this, item (5) for a sum of Rs.2,686/3/- in connection with the wrongful remission to the Hyderabad Company was also allowed. There seems to be no dispute on this account because the whole of the amount as claimed has been allowed. | 0[ds]This Court has, in several decisions, laid down the circumstances in which an Appellate Court will be justified in directing additional evidence to be recorded for the disposal of theis apparent that by the terms of the above rule, it is only where the Court has improperly refused to admit evidence or where the Appellate Court requires additional evidence to be recorded in order to enable it to pronounce judgment that it can make such an order. Under O.41 R.27 (1) (b) the Court may require additional evidence either to enable it to pronounce judgment or it may require additional evidence to be recorded for any other substantial cause. In Arjan Singh v. Kartar Singh, 1951 SCR 258 = (AIR 1951 SC 193 ) it was held that the legitimate occasion for admitting additional evidence in appeal is when on examining the evidence as it stands some inherent lacuna or defect becomes apparent, not where a discovery is made outside the court, of fresh evidence, and an application is made to import it. The true test is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced. See also State of U. P. v. Manbodhan Lal, 1958 SCR 533 = (AIR 1957 SC 912 ) and Municipal Corporation for Greater Bombay v. Lala Pancham, (1965) 1 SCR 542 at p. 548 = (AIR 1965 SCargument, however, ignores the provisions of O.41 R.27(1)(a) under which an Appellate Court can direct additional evidence to be recorded if the Trial Court had refused to allow or declined to record evidence which the party against whom the decree had been passed was prepared to produce before it. What we must, therefore, see is whether the District Judge had improperly rejected the request to record the evidence of the respondents and consequently whether the High Court was justified in directing additional evidence to be recorded. On a perusal of the record we have no doubt that the District Judge had improperly rejected the prayer of the respondents that they should be allowed to lead evidence in connection with the charges mentioned in the application filed by the Official Liquidator and that they should be allowed torespondent 5.6. The Roznama dated September 4, 1958 shows that on that day the four respondents, namely respondents 1 to 4 represented by Mr. Amin, and the Official Liquidator in person appeared before the District Judge.The above proceedings clearly show that no opportunity was given to respondents 1 to 4 because proceedings of January 12, 1958 show that as soon as written statement was filed on Dec.30, 1957 the District Judge fixed the case for argument. The proceedings of July 7, 1958 further show that Mr. Amin had brought to the notice of the Official Liquidator that he should be supplied with materials on which the Official Liquidator would rely for the alleged malfeasance on the part of his clients, but no materials were furnished by the Official Liquidator. Accordingly on the second hearing after the aforesaid application, a petition for submitting fresh evidence and forrespondent 5 was made but it was rejected. The show cause notice was given by the Official Liquidator on the basis of the public examination of respondents 1 to 4. It is only in answer to the show cause notice that respondents 1 to 4 could lead evidence andrespondent 5. It may be mentioned that misfeasance action against the Directors is a serious charge. It is a charge of misconduct or misappropriation or breach of trust. For this reason the application should contain a detailed narration of the specific acts of commission and omission on the part of each Director quantifying the loss to the Company arising out of such acts or omissions.The burden of proving misfeasance orrests on the Official Liquidator. The Official Liquidator, it may be mentioned, merely relied upon the evidence recorded in public examination of the Directors and on a few documents tendered in evidence. At the stage of public examination there was no change of misfeasance against the Directors and they were not in a position to know what would be the grounds that would be alleged against them for recovering any amounts, for the loss said to have been caused to the Company by reason of such misfeasance. The application made by the Official Liquidator did not give sufficient particulars which, in our view it should have. Once a show cause notice was given to respondents 1 to 4 the Official Liquidator did not lead any evidence nor rely upon any other documents, nor did respondents 5 who was instrumental in initiating the misfeasance case against respondents 1 to 4 lead any evidence. In our view there was no justification whatsoever for the District Court to reject the evidence which the respondents had intended to lead or to disallow the production of documents other than those already produced, and for that reason the High Court rightly ordered that additional evidence be recorded in this case.8. Now coming to the merits of the appeal. The first challenge is to theThis amount represented the commission on the sale to M. P. Electricity Board of aBoiler for Itarsi Power House through the instrumentality of the Nagpur Company. The reason why the High Court disallowed this amount is because the Official Liquidator failed to establish that there was any connection with the Nagpur Company and the sale of this Boiler to the Itarsi Power House of the M. P. Electricity Board. On the admitted facts of the case itself this conclusion is amply justified. It appears that there was a partnership firm known as Industrial and Agricultural Engineering Companyhereinafter called "the I.D.D.". This partnership firm was the sole selling agent formachinery and products. On October 31, 1953, the M.P. Electricity Board agreed to purchase from the partnership aBoiler for a sum of about Rs.86,000 in respect of which there was an agreement between the I.D.D. and the Electricity Board. The Electricity Board agreed to pay a sum of Rs.1,50,000 to the I.D.D. for certain services. Out of this sum the Official Liquidator claimed Rs.1,30,000/on the ground that it amounted to 10 per cent of the commission which was due to the Nagpur Company from the I.D.D. and which was wrongly withheld by the latter Company, with the acquiescence of respondent 1 who was one of the partners of the I.D.D. The case of the Official Liquidator was that Shantilal Shah then Managing Director of the Company had contacted the officers of the M.P. Electricity Board and it was through his efforts that the ultimate contract was entered upon. Accordingly a part of the commission which the I.D.D. was claiming on behalf of the Nagpur Company may be allowed to theour view, it is not the case of the Official Liquidator that there was an agreement under which a part of the commission was payable by the I.D.D. to the Nagpur Company and much less is there any justification for our holding that respondents 1 to 4, even if there was any agreement, which on the evidence we say there was not, had intended to withhold the amount. The High Court has gone into the evidence very carefully and we do not see any reason for disagreeing with its conclusion.10. With respect to item (1), namely, commission in respect of sales of General Motors pumping sets worth about Rs.5 lakhs at 4 per cent viz.the foundation of the claim is the payment made by one Premnath Transport Company at Delhi to the Bombay Company as infringement commission, because they had sold certain machinery of the General Motors Ltd. in Bhopal area, the agency of which was held by the Company, and consequently the Company agreed to give an infringement commission of 4 per cent to the Bombay Company. This amount of Rupees 20,000/is claimed out of that amount. It is contended that Bhopal was within the area allotted to the Nagpur Company and, therefore, it was entitled to the commission. This was denied by the Directors. The Official Liquidator failed to establish that the Nagpur Company was entitled to the whole or part of the infringement commission by reason of the fact that it was a sole selling agent of the General Motors parts in that particular area or it had an exclusivefrom the Bombay Company. The High Court considered that the evidence in the case was not sufficient to establish either of these claims. We have not been persuaded to hold otherwise.11. In so far as item (2) for Rs.36,000/is concerned, here again the Nagpur Company was being paid 15 per cent and 20 per cent commission in respect of machinery and spare parts respectively by the Bombay Company which Company was retaining 5 per cent of the commission in respect of the orders placed by the Nagpur Company. According to the Official Liquidator the Bombay Company was only entitled to retain 2 per cent and consequently the Nagpur Company would be entitled to a further 3 per cent which had been wrongly withheld. Here again the High Court considered that there was not sufficient evidence to sustain the claim. Shantilal Shah who gave evidence did not spell out the actual terms of the agreement between the Nagpur Company and the Bombay Company by reason of which the Bombay Company was entitled to retain only 2 per cent and not 5 per cent. It was held, and there is nothing to establish to the contrary inasmuch as the evidence of respondents 1 to 4 as Directors of the Company was confirmed by the first minutes, the explanation given by the respondents must be accepted. Reliance was placed on(2) of Item 2 of the minutes of the Board of Directors of the sister companies at which Shantilal Shah was also present. It was agreed and accepted by all the associates that a commission of 2 per cent on all such imports on the c.i.f. or f.o.b. invoice value, as the case may be, should be paid to the Bombay Office. But in so far asV of Item III was concerned, it was unanimously agreed that the associated offices should pay a commission of 5 per cent on their imports covered by the licences owned by the Bombay office.12. The third item is for Rs.30,000/in connection with the supplies to Model Mills and the Power House in Nagpur with the products of the Mysore Electric Company Ltd. There was some suggestion that the Bombay Company should reduce its commission from 5 per cent to 2 per cent but as the High Court pointed out that it had absolutely no connection whatsoever with thetransactions in respect of goods of which agency was held by the Bombay Company. The evidence of Shantilal Shah in this regard was considered to be highly unsatisfactory. Apart from that Exhibit Ta letter dated February 2, 1950, clearly showed that the arrangement between the Nagpur Company and the Bombay Company was to give commission at a particularis no ones case that the commission according to this letter was not paid and as the Nagpur Company has received this commission it cannot claim any additional commission.13. In so far as item (4) is concerned, it has reference to four amounts, namely,. Nothing has been shown as to why these claims were not properly allowed. The appellant, however, challenges the item for Rs.9,827/as not being the correct amount. In fact the book value is Rs.39,309/4/9. The High Court took the difference between the book value and the stock purchased by the Bombay Company after August 28, 1952, since the date of resignation of Shantilal Shah. Accordingly it took the opening stock as per the balance sheet dated March 31, 1953, at Rs.The closing stock as per audit report dated March 31, 1953, reduced to the extent of 7/9 wasleaving an amount of Rs.This amount was transferred to the Bombay Office and the difference between the above amounts amounted to Rs.Shantilal Shah was questioned about this, but he did not know how it was made up of. No explanation was also given on behalf of the Official Liquidator as to how the item was made up of. For this reason this item was not allowed. Similarly no exception can be taken to the amount of Rs.2,100/which was allowed because the scooter was sold to the Delhi Branch for only Rs.These two items namely Rs.9,827/and Rupees 2,100/which are allowable to the Liquidator come to Rs.This other two items for Rs.7,689/12/ch relate to the purchases actually made by the Bombay Company in pursuance of their offer and in pursuance of the majority resolution of April 25, 1953, and the difference between the book value and the purchase value of the car by the Bombay Company were also allowed. Apart from this, item (5) for a sum of Rs.2,686/3/in connection with the wrongful remission to the Hyderabad Company was also allowed. There seems to be no dispute on this account because the whole of the amount as claimed has been allowed. | 0 | 4,422 | 2,347 | ### 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:
held by the Company, and consequently the Company agreed to give an infringement commission of 4 per cent to the Bombay Company. This amount of Rupees 20,000/- is claimed out of that amount. It is contended that Bhopal was within the area allotted to the Nagpur Company and, therefore, it was entitled to the commission. This was denied by the Directors. The Official Liquidator failed to establish that the Nagpur Company was entitled to the whole or part of the infringement commission by reason of the fact that it was a sole selling agent of the General Motors parts in that particular area or it had an exclusive Sub-agency from the Bombay Company. The High Court considered that the evidence in the case was not sufficient to establish either of these claims. We have not been persuaded to hold otherwise.11. In so far as item (2) for Rs.36,000/- is concerned, here again the Nagpur Company was being paid 15 per cent and 20 per cent commission in respect of machinery and spare parts respectively by the Bombay Company which Company was retaining 5 per cent of the commission in respect of the orders placed by the Nagpur Company. According to the Official Liquidator the Bombay Company was only entitled to retain 2 per cent and consequently the Nagpur Company would be entitled to a further 3 per cent which had been wrongly withheld. Here again the High Court considered that there was not sufficient evidence to sustain the claim. Shantilal Shah who gave evidence did not spell out the actual terms of the agreement between the Nagpur Company and the Bombay Company by reason of which the Bombay Company was entitled to retain only 2 per cent and not 5 per cent. It was held, and there is nothing to establish to the contrary inasmuch as the evidence of respondents 1 to 4 as Directors of the Company was confirmed by the first minutes, the explanation given by the respondents must be accepted. Reliance was placed on sub-item (2) of Item 2 of the minutes of the Board of Directors of the sister companies at which Shantilal Shah was also present. It was agreed and accepted by all the associates that a commission of 2 per cent on all such imports on the c.i.f. or f.o.b. invoice value, as the case may be, should be paid to the Bombay Office. But in so far as sub-item V of Item III was concerned, it was unanimously agreed that the associated offices should pay a commission of 5 per cent on their imports covered by the licences owned by the Bombay office.12. The third item is for Rs.30,000/- in connection with the supplies to Model Mills and the Power House in Nagpur with the products of the Mysore Electric Company Ltd. There was some suggestion that the Bombay Company should reduce its commission from 5 per cent to 2 per cent but as the High Court pointed out that it had absolutely no connection whatsoever with the inter-Company transactions in respect of goods of which agency was held by the Bombay Company. The evidence of Shantilal Shah in this regard was considered to be highly unsatisfactory. Apart from that Exhibit T - a letter dated February 2, 1950, clearly showed that the arrangement between the Nagpur Company and the Bombay Company was to give commission at a particular rate. The High Court extracted the relevant portion of the letter which merits repetition. It says:"I am glad to inform you that we have been able to get some additional concession by way of extra discounts from the Mysore Lamp Works and as intimated to you personally during your recent visit, we shall give you a portion of this extra commission, thus in all 25 and 2 1/2 per cent discount on the list price."It is no ones case that the commission according to this letter was not paid and as the Nagpur Company has received this commission it cannot claim any additional commission.13. In so far as item (4) is concerned, it has reference to four amounts, namely, Rs.7,689/12/-, Rs.2,184/-; Rs.9,827/- and Rs.2,100/-. Nothing has been shown as to why these claims were not properly allowed. The appellant, however, challenges the item for Rs.9,827/- as not being the correct amount. In fact the book value is Rs.39,309/4/9. The High Court took the difference between the book value and the stock purchased by the Bombay Company after August 28, 1952, since the date of resignation of Shantilal Shah. Accordingly it took the opening stock as per the balance sheet dated March 31, 1953, at Rs.53,574-4-0. The closing stock as per audit report dated March 31, 1953, reduced to the extent of 7/9 was Rs.24,092-0-0 leaving an amount of Rs.29,482-4-9. This amount was transferred to the Bombay Office and the difference between the above amounts amounted to Rs.9,827/-. Shantilal Shah was questioned about this, but he did not know how it was made up of. No explanation was also given on behalf of the Official Liquidator as to how the item was made up of. For this reason this item was not allowed. Similarly no exception can be taken to the amount of Rs.2,100/- which was allowed because the scooter was sold to the Delhi Branch for only Rs.600/-. These two items namely Rs.9,827/- and Rupees 2,100/- which are allowable to the Liquidator come to Rs.11,927/-. This other two items for Rs.7,689/12/- and Rs.2,184/- which relate to the purchases actually made by the Bombay Company in pursuance of their offer and in pursuance of the majority resolution of April 25, 1953, and the difference between the book value and the purchase value of the car by the Bombay Company were also allowed. Apart from this, item (5) for a sum of Rs.2,686/3/- in connection with the wrongful remission to the Hyderabad Company was also allowed. There seems to be no dispute on this account because the whole of the amount as claimed has been allowed.
### Response:
0
### Explanation:
even if there was any agreement, which on the evidence we say there was not, had intended to withhold the amount. The High Court has gone into the evidence very carefully and we do not see any reason for disagreeing with its conclusion.10. With respect to item (1), namely, commission in respect of sales of General Motors pumping sets worth about Rs.5 lakhs at 4 per cent viz.the foundation of the claim is the payment made by one Premnath Transport Company at Delhi to the Bombay Company as infringement commission, because they had sold certain machinery of the General Motors Ltd. in Bhopal area, the agency of which was held by the Company, and consequently the Company agreed to give an infringement commission of 4 per cent to the Bombay Company. This amount of Rupees 20,000/is claimed out of that amount. It is contended that Bhopal was within the area allotted to the Nagpur Company and, therefore, it was entitled to the commission. This was denied by the Directors. The Official Liquidator failed to establish that the Nagpur Company was entitled to the whole or part of the infringement commission by reason of the fact that it was a sole selling agent of the General Motors parts in that particular area or it had an exclusivefrom the Bombay Company. The High Court considered that the evidence in the case was not sufficient to establish either of these claims. We have not been persuaded to hold otherwise.11. In so far as item (2) for Rs.36,000/is concerned, here again the Nagpur Company was being paid 15 per cent and 20 per cent commission in respect of machinery and spare parts respectively by the Bombay Company which Company was retaining 5 per cent of the commission in respect of the orders placed by the Nagpur Company. According to the Official Liquidator the Bombay Company was only entitled to retain 2 per cent and consequently the Nagpur Company would be entitled to a further 3 per cent which had been wrongly withheld. Here again the High Court considered that there was not sufficient evidence to sustain the claim. Shantilal Shah who gave evidence did not spell out the actual terms of the agreement between the Nagpur Company and the Bombay Company by reason of which the Bombay Company was entitled to retain only 2 per cent and not 5 per cent. It was held, and there is nothing to establish to the contrary inasmuch as the evidence of respondents 1 to 4 as Directors of the Company was confirmed by the first minutes, the explanation given by the respondents must be accepted. Reliance was placed on(2) of Item 2 of the minutes of the Board of Directors of the sister companies at which Shantilal Shah was also present. It was agreed and accepted by all the associates that a commission of 2 per cent on all such imports on the c.i.f. or f.o.b. invoice value, as the case may be, should be paid to the Bombay Office. But in so far asV of Item III was concerned, it was unanimously agreed that the associated offices should pay a commission of 5 per cent on their imports covered by the licences owned by the Bombay office.12. The third item is for Rs.30,000/in connection with the supplies to Model Mills and the Power House in Nagpur with the products of the Mysore Electric Company Ltd. There was some suggestion that the Bombay Company should reduce its commission from 5 per cent to 2 per cent but as the High Court pointed out that it had absolutely no connection whatsoever with thetransactions in respect of goods of which agency was held by the Bombay Company. The evidence of Shantilal Shah in this regard was considered to be highly unsatisfactory. Apart from that Exhibit Ta letter dated February 2, 1950, clearly showed that the arrangement between the Nagpur Company and the Bombay Company was to give commission at a particularis no ones case that the commission according to this letter was not paid and as the Nagpur Company has received this commission it cannot claim any additional commission.13. In so far as item (4) is concerned, it has reference to four amounts, namely,. Nothing has been shown as to why these claims were not properly allowed. The appellant, however, challenges the item for Rs.9,827/as not being the correct amount. In fact the book value is Rs.39,309/4/9. The High Court took the difference between the book value and the stock purchased by the Bombay Company after August 28, 1952, since the date of resignation of Shantilal Shah. Accordingly it took the opening stock as per the balance sheet dated March 31, 1953, at Rs.The closing stock as per audit report dated March 31, 1953, reduced to the extent of 7/9 wasleaving an amount of Rs.This amount was transferred to the Bombay Office and the difference between the above amounts amounted to Rs.Shantilal Shah was questioned about this, but he did not know how it was made up of. No explanation was also given on behalf of the Official Liquidator as to how the item was made up of. For this reason this item was not allowed. Similarly no exception can be taken to the amount of Rs.2,100/which was allowed because the scooter was sold to the Delhi Branch for only Rs.These two items namely Rs.9,827/and Rupees 2,100/which are allowable to the Liquidator come to Rs.This other two items for Rs.7,689/12/ch relate to the purchases actually made by the Bombay Company in pursuance of their offer and in pursuance of the majority resolution of April 25, 1953, and the difference between the book value and the purchase value of the car by the Bombay Company were also allowed. Apart from this, item (5) for a sum of Rs.2,686/3/in connection with the wrongful remission to the Hyderabad Company was also allowed. There seems to be no dispute on this account because the whole of the amount as claimed has been allowed.
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Annapurna Biscuit Manufacturing Co., Kanpur Vs. Commissioner Of Sales Tax, U.P., Lucknow | VENKATARAMIAH, J. 1. The short point for consideration in this appeal is whether the expression cooked food used in certain notifications issued under the U.P. Sales Tax Act, 1948 (U.P. Act XV of 1948) (hereinafter referred to as the Act) can be construed as including within its meaning biscuits also. 2. The assessee, the appellant herein, is a registered firm engaged in the business of manufacture and sale of biscuits intended for human consumption. The assessee is a registered dealer under the Act. During the assessment proceedings under the Act for the year 1972-73 the assessee claimed that the turn-over relating to biscuits manufactured and sold by it amounting to Rs. 35, 09, 920.38 P. was liable to be taxed at two per cent which was the rate prescribed by a notification issued by the State Government for cooked food contending that cooked food included biscuits also. The notification relied on was one issued on October 6, 1971 under subsection (2) of section 3-A of the Act in supersession of an earlier notification dated July 1, 1969. In both the notifications the tax was fixed at two per cent of the turn-over payable at all points of sale in the case of cooked food. T he Assistant Commissioner (Tax Assessment) Sales Tax, Kanpur who was the assessing authority rejected the contention of the assessee that cooked food included biscuits also and imposed tax at the rate of three and a half per cent on the turn-over relating to biscuits treating the same as an unclassified commodity. An appeal filed against the order of the assessing authority before the Deputy Commissioner Sales Tax and a further appeal before the Judge (Appeal) Sales Tax, Lucknow were unsuccessful. The High Court of Allahabad also declined to interfere with the said order. This appeal by special leave is filed against the order of the High Court under Article 136 of the Constitution.The only ground urged before us is that biscuits should have been treated by the authorities under the Act and by the High Court as cooked food and sales tax should have been levied on the turnover of biscuits at the rate prescribed in respect of cooked food under the notification ref erred to above. The argument urged on behalf of the appellant is that biscuit which was consumed by human being for nourishment is food and since it is prepared by baking which is a kind of cooking process it should be treated as cooked food. Relying on some foreign English dictionaries it is contended that cooking means preparation of food by application of heat as by boiling, baking, roasting, broiling etc. and biscuit should therefore be treated as cooked food. What is of significance in this case is that the Hindi version of the notification issued uses the expression cooked food (pakaya hua bhojan) for cooked food found in the notification in English language. 3. It is a well settled rule of construction that the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force. If an expression is capable of a wider meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case. In Hinde v. Allmond the question was whether tea was an "article of food" within the meaning of an Order designed to prohibit the hoarding of food namely Food Hoarding Order of 1917. The learned judges held it was not even though in some other decisions it had been held to be an "article of food". Shearman, J. one of the judges said that he rested his judgment on the common sense interpretation of the word food in the Order, apart from its meaning in any other statute. It is interesting to note that in a case before the Allahabad High Court in Annapurna Biscuit Manufacturing Co. v. State of U.P . the assessee had contended that biscuit was an article of confectionery and that contention was negatived. It is relevant to note, as we have mentioned earlier, that when the Hindi text of the notification was issued contemporaneously with the English version, the words (pakaya hua bhojan) were used as the equivalent of the words cooked food.It may be that biscuit is served at tea time and in its wider meaning cooked food may include biscuit. But ordinarily biscuit is not understood as cooked food. If a person goes to a hotel or restaurant and asks for some cooked food or cooked food (pakaya hua bhojan) certainly he will not be served with biscuits in Uttar Pradesh. While it is not necessary to state in the present case as to what all items may be called as cooked food, we can definitely say that in the context and background of the notification biscuit cannot be treated as cooked food. 4. The High Court of Allahabad has in an earlier case in Commissioner of Sales Tax v. Jassu Ram Bakery Dealer held that biscuit was not cooked food. The High Court of Madhya Pradesh has also taken the same view in Commissioner of Sales Tax Madhya Pradesh v. Shri Ballabhdas Iswardas. We approve of the views expressed in the aforesaid decisions. 5. | 0[ds]It is a well settled rule of construction that the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force. If an expression is capable of a wider meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case. In Hinde v. Allmond the question was whether tea was an "article of food" within the meaning of an Order designed to prohibit the hoarding of food namely Food Hoarding Order of 1917. The learned judges held it was not even though in some other decisions it had been held to be an "article of food". Shearman, J. one of the judges said that he rested his judgment on the common sense interpretation of the word food in the Order, apart from its meaning in any other statute. It is interesting to note that in a case before the Allahabad High Court in Annapurna Biscuit Manufacturing Co. v. State of U.P . the assessee had contended that biscuit was an article of confectionery and that contention was negatived. It is relevant to note, as we have mentioned earlier, that when the Hindi text of the notification was issued contemporaneously with the English version, the words (pakaya hua bhojan) were used as the equivalent of the words cooked food.It may be that biscuit is served at tea time and in its wider meaning cooked food may include biscuit. But ordinarily biscuit is not understood as cooked food. If a person goes to a hotel or restaurant and asks for some cooked food or cooked food (pakaya hua bhojan) certainly he will not be served with biscuits in Uttar Pradesh. While it is not necessary to state in the present case as to what all items may be called as cooked food, we can definitely say that in the context and background of the notification biscuit cannot be treated as cooked foodThe High Court of Allahabad has in an earlier case in Commissioner of Sales Tax v. Jassu Ram Bakery Dealer held that biscuit was not cooked food. The High Court of Madhya Pradesh has also taken the same view in Commissioner of Sales Tax Madhya Pradesh v. Shri Ballabhdas Iswardas. We approve of the views expressed in the aforesaid decisions. | 0 | 971 | 439 | ### 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:
VENKATARAMIAH, J. 1. The short point for consideration in this appeal is whether the expression cooked food used in certain notifications issued under the U.P. Sales Tax Act, 1948 (U.P. Act XV of 1948) (hereinafter referred to as the Act) can be construed as including within its meaning biscuits also. 2. The assessee, the appellant herein, is a registered firm engaged in the business of manufacture and sale of biscuits intended for human consumption. The assessee is a registered dealer under the Act. During the assessment proceedings under the Act for the year 1972-73 the assessee claimed that the turn-over relating to biscuits manufactured and sold by it amounting to Rs. 35, 09, 920.38 P. was liable to be taxed at two per cent which was the rate prescribed by a notification issued by the State Government for cooked food contending that cooked food included biscuits also. The notification relied on was one issued on October 6, 1971 under subsection (2) of section 3-A of the Act in supersession of an earlier notification dated July 1, 1969. In both the notifications the tax was fixed at two per cent of the turn-over payable at all points of sale in the case of cooked food. T he Assistant Commissioner (Tax Assessment) Sales Tax, Kanpur who was the assessing authority rejected the contention of the assessee that cooked food included biscuits also and imposed tax at the rate of three and a half per cent on the turn-over relating to biscuits treating the same as an unclassified commodity. An appeal filed against the order of the assessing authority before the Deputy Commissioner Sales Tax and a further appeal before the Judge (Appeal) Sales Tax, Lucknow were unsuccessful. The High Court of Allahabad also declined to interfere with the said order. This appeal by special leave is filed against the order of the High Court under Article 136 of the Constitution.The only ground urged before us is that biscuits should have been treated by the authorities under the Act and by the High Court as cooked food and sales tax should have been levied on the turnover of biscuits at the rate prescribed in respect of cooked food under the notification ref erred to above. The argument urged on behalf of the appellant is that biscuit which was consumed by human being for nourishment is food and since it is prepared by baking which is a kind of cooking process it should be treated as cooked food. Relying on some foreign English dictionaries it is contended that cooking means preparation of food by application of heat as by boiling, baking, roasting, broiling etc. and biscuit should therefore be treated as cooked food. What is of significance in this case is that the Hindi version of the notification issued uses the expression cooked food (pakaya hua bhojan) for cooked food found in the notification in English language. 3. It is a well settled rule of construction that the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force. If an expression is capable of a wider meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case. In Hinde v. Allmond the question was whether tea was an "article of food" within the meaning of an Order designed to prohibit the hoarding of food namely Food Hoarding Order of 1917. The learned judges held it was not even though in some other decisions it had been held to be an "article of food". Shearman, J. one of the judges said that he rested his judgment on the common sense interpretation of the word food in the Order, apart from its meaning in any other statute. It is interesting to note that in a case before the Allahabad High Court in Annapurna Biscuit Manufacturing Co. v. State of U.P . the assessee had contended that biscuit was an article of confectionery and that contention was negatived. It is relevant to note, as we have mentioned earlier, that when the Hindi text of the notification was issued contemporaneously with the English version, the words (pakaya hua bhojan) were used as the equivalent of the words cooked food.It may be that biscuit is served at tea time and in its wider meaning cooked food may include biscuit. But ordinarily biscuit is not understood as cooked food. If a person goes to a hotel or restaurant and asks for some cooked food or cooked food (pakaya hua bhojan) certainly he will not be served with biscuits in Uttar Pradesh. While it is not necessary to state in the present case as to what all items may be called as cooked food, we can definitely say that in the context and background of the notification biscuit cannot be treated as cooked food. 4. The High Court of Allahabad has in an earlier case in Commissioner of Sales Tax v. Jassu Ram Bakery Dealer held that biscuit was not cooked food. The High Court of Madhya Pradesh has also taken the same view in Commissioner of Sales Tax Madhya Pradesh v. Shri Ballabhdas Iswardas. We approve of the views expressed in the aforesaid decisions. 5.
### Response:
0
### Explanation:
It is a well settled rule of construction that the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force. If an expression is capable of a wider meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case. In Hinde v. Allmond the question was whether tea was an "article of food" within the meaning of an Order designed to prohibit the hoarding of food namely Food Hoarding Order of 1917. The learned judges held it was not even though in some other decisions it had been held to be an "article of food". Shearman, J. one of the judges said that he rested his judgment on the common sense interpretation of the word food in the Order, apart from its meaning in any other statute. It is interesting to note that in a case before the Allahabad High Court in Annapurna Biscuit Manufacturing Co. v. State of U.P . the assessee had contended that biscuit was an article of confectionery and that contention was negatived. It is relevant to note, as we have mentioned earlier, that when the Hindi text of the notification was issued contemporaneously with the English version, the words (pakaya hua bhojan) were used as the equivalent of the words cooked food.It may be that biscuit is served at tea time and in its wider meaning cooked food may include biscuit. But ordinarily biscuit is not understood as cooked food. If a person goes to a hotel or restaurant and asks for some cooked food or cooked food (pakaya hua bhojan) certainly he will not be served with biscuits in Uttar Pradesh. While it is not necessary to state in the present case as to what all items may be called as cooked food, we can definitely say that in the context and background of the notification biscuit cannot be treated as cooked foodThe High Court of Allahabad has in an earlier case in Commissioner of Sales Tax v. Jassu Ram Bakery Dealer held that biscuit was not cooked food. The High Court of Madhya Pradesh has also taken the same view in Commissioner of Sales Tax Madhya Pradesh v. Shri Ballabhdas Iswardas. We approve of the views expressed in the aforesaid decisions.
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State Bank of Patiala Vs. Mukesh Jain & Another | or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).”Section 1(4) of the DRT Act reads as under:“1. Short title, extent, commencement and application. -(1) ……………..(2) ……………..(3) ……………..(4) The provisions of this Act shall not apply where the amount of debt due to any bank or financial institution or to a consortium of banks or financial institutions is less than ten lakh rupees or such other amount, being not less than one lakh rupees, as the Central Government may, by notification, specify.”15. Upon perusal of Section 34 of the Act, it is very clear that no Civil Court is having jurisdiction to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or the appellate Tribunal is empowered by or under the Act to determine the dispute. Further, the Civil Court has no right to issue any injunction in pursuance of any action taken under the Act or under the provisions of the DRT Act.16. In view of a specific bar, no Civil Court can entertain any suit wherein the proceedings initiated under Section 13 of the Act are challenged. The Act had been enacted in 2002, whereas the DRT Act had been enacted in 1993. The legislature is presumed to be aware of the fact that the Tribunal constituted under the DRT Act would not have any jurisdiction to entertain any matter, wherein the subject matter of the suit is less than Rs.10 lakh.17. In the aforestated circumstances, one will have to make an effort to harmonize both the statutory provisions. According to Section 17 of the Act, any person who is aggrieved by any of the actions taken under Section 13 of the Act can approach the Tribunal under the provisions of the DRT Act.18. In normal circumstances, there cannot be any action of any authority which cannot be challenged before a Civil Court unless there is a statutory bar with regard to challenging such an action. Section 34 specifically provides the bar of jurisdiction and therefore, the order passed under Section 13 of the Act could not have been challenged by respondent no.1 debtor before any Civil Court.19. In the aforestated circumstances, the only remedy available to respondent no.1 debtor can be to approach the Tribunal under the provisions of the DRT Act read with the provisions of the Act. But, one would feel that as per Section 1(4) of the DRT Act, provisions of the DRT Act would not apply where the amount of debt is less than Rs.10 lakh.20. The aforestated provision of Section 1(4) of the DRT Act must be read in a manner which would not adversely affect a debtor, who wants to have some remedy against an action initiated under the provisions of Section 13 of the Act.21. The DRT Act mainly pertains to institution of proceedings by a bank for recovery of its debt when the debt is not less than Rs.10 lakh. If the debt is less than Rs.10 lakh, no suit can be filed by the creditor bank in the Tribunal under the provisions of the DRT Act. So, when the jurisdiction of the Tribunal has been referred to in Section 1(4) of the DRT Act, which limits the jurisdiction of the Tribunal to Rs.10 lakh, prima facie, the intention of the legislature is to limit the original jurisdiction of the Tribunal. If any claim is to be made before the Tribunal, the amount must be more than Rs.10 lakh and if the amount is less than Rs.10 lakh, the creditor bank will have to file a suit in a Civil Court. So, one can safely interpret the provisions of Section 1(4) of the DRT Act to the effect that it deals with original jurisdiction of the Tribunal under the provisions of the DRT Act.22. In the instant case, we are concerned with the challenge to the proceedings initiated under Section 13 of the Act. There is a specific provision in the Act to the effect that the proceedings initiated under the Act cannot be challenged before a Civil Court because the Civil Court has no jurisdiction to entertain any matter arising under the Act and in that event, the concerned debtor has to approach the Tribunal under the provisions of Section 17 of the Act.23. Thus, the Tribunal would be exercising its appellate jurisdiction when the action initiated under the provisions of Section 13 of the Act is challenged before the Tribunal. There is a difference between the Tribunal’s original jurisdiction under the provisions of the DRT Act and the appellate jurisdiction under the Act.24. The issue with regard to availability of a forum for challenging the action under the provisions of the Act had been dealt with by this Court in the case of Mardia Chemicals Ltd. (supra). This Court, in the said case, unequivocally held that the aggrieved debtor can never be without any remedy and we firmly believe that the legislature would normally not leave a person without any remedy when a harsh action against him is initiated under the provisions of the Act.25. So as to know the appellate jurisdiction of the Tribunal, one has to look at the provisions of the Act as Section 17 of the Act specifically provides a right to the aggrieved debtor to challenge the validity of an action initiated under Section 13(4) of the Act before the Tribunal. Moreover, the Act was enacted in 2002 and the legislature is presumed to have knowledge about the provisions of Section 1(4) of the DRT Act. So harmonious reading of both the aforestated Sections would not be contrary to any of the legal provisions.26. For the aforestated reasons, we are of the view that the application submitted by the appellant bank under Order VII Rule 11 of the CPC should have been granted by the trial Court as, according to Section 34 of the Act, a Civil Court has no jurisdiction to entertain any appeal arising under the Act. | 0[ds]22. In the instant case, we are concerned with the challenge to the proceedings initiated under Section 13 of the Act. There is a specific provision in the Act to the effect that the proceedings initiated under the Act cannot be challenged before a Civil Court because the Civil Court has no jurisdiction to entertain any matter arising under the Act and in that event, the concerned debtor has to approach the Tribunal under the provisions of Section 17 of the Act.23. Thus, the Tribunal would be exercising its appellate jurisdiction when the action initiated under the provisions of Section 13 of the Act is challenged before the Tribunal. There is a difference between theoriginal jurisdiction under the provisions of the DRT Act and the appellate jurisdiction under the Act.24. The issue with regard to availability of a forum for challenging the action under the provisions of the Act had been dealt with by this Court in the case of Mardia Chemicals Ltd. (supra). This Court, in the said case, unequivocally held that the aggrieved debtor can never be without any remedy and we firmly believe that the legislature would normally not leave a person without any remedy when a harsh action against him is initiated under the provisions of the Act.25. So as to know the appellate jurisdiction of the Tribunal, one has to look at the provisions of the Act as Section 17 of the Act specifically provides a right to the aggrieved debtor to challenge the validity of an action initiated under Section 13(4) of the Act before the Tribunal. Moreover, the Act was enacted in 2002 and the legislature is presumed to have knowledge about the provisions of Section 1(4) of the DRT Act. So harmonious reading of both the aforestated Sections would not be contrary to any of the legalare of the view that the application submitted by the appellant bank under Order VII Rule 11 of the CPC should have been granted by the trial Court as, according to Section 34 of the Act, a Civil Court has no jurisdiction to entertain any appeal arising under the Act. | 0 | 2,468 | 386 | ### 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:
or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).”Section 1(4) of the DRT Act reads as under:“1. Short title, extent, commencement and application. -(1) ……………..(2) ……………..(3) ……………..(4) The provisions of this Act shall not apply where the amount of debt due to any bank or financial institution or to a consortium of banks or financial institutions is less than ten lakh rupees or such other amount, being not less than one lakh rupees, as the Central Government may, by notification, specify.”15. Upon perusal of Section 34 of the Act, it is very clear that no Civil Court is having jurisdiction to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or the appellate Tribunal is empowered by or under the Act to determine the dispute. Further, the Civil Court has no right to issue any injunction in pursuance of any action taken under the Act or under the provisions of the DRT Act.16. In view of a specific bar, no Civil Court can entertain any suit wherein the proceedings initiated under Section 13 of the Act are challenged. The Act had been enacted in 2002, whereas the DRT Act had been enacted in 1993. The legislature is presumed to be aware of the fact that the Tribunal constituted under the DRT Act would not have any jurisdiction to entertain any matter, wherein the subject matter of the suit is less than Rs.10 lakh.17. In the aforestated circumstances, one will have to make an effort to harmonize both the statutory provisions. According to Section 17 of the Act, any person who is aggrieved by any of the actions taken under Section 13 of the Act can approach the Tribunal under the provisions of the DRT Act.18. In normal circumstances, there cannot be any action of any authority which cannot be challenged before a Civil Court unless there is a statutory bar with regard to challenging such an action. Section 34 specifically provides the bar of jurisdiction and therefore, the order passed under Section 13 of the Act could not have been challenged by respondent no.1 debtor before any Civil Court.19. In the aforestated circumstances, the only remedy available to respondent no.1 debtor can be to approach the Tribunal under the provisions of the DRT Act read with the provisions of the Act. But, one would feel that as per Section 1(4) of the DRT Act, provisions of the DRT Act would not apply where the amount of debt is less than Rs.10 lakh.20. The aforestated provision of Section 1(4) of the DRT Act must be read in a manner which would not adversely affect a debtor, who wants to have some remedy against an action initiated under the provisions of Section 13 of the Act.21. The DRT Act mainly pertains to institution of proceedings by a bank for recovery of its debt when the debt is not less than Rs.10 lakh. If the debt is less than Rs.10 lakh, no suit can be filed by the creditor bank in the Tribunal under the provisions of the DRT Act. So, when the jurisdiction of the Tribunal has been referred to in Section 1(4) of the DRT Act, which limits the jurisdiction of the Tribunal to Rs.10 lakh, prima facie, the intention of the legislature is to limit the original jurisdiction of the Tribunal. If any claim is to be made before the Tribunal, the amount must be more than Rs.10 lakh and if the amount is less than Rs.10 lakh, the creditor bank will have to file a suit in a Civil Court. So, one can safely interpret the provisions of Section 1(4) of the DRT Act to the effect that it deals with original jurisdiction of the Tribunal under the provisions of the DRT Act.22. In the instant case, we are concerned with the challenge to the proceedings initiated under Section 13 of the Act. There is a specific provision in the Act to the effect that the proceedings initiated under the Act cannot be challenged before a Civil Court because the Civil Court has no jurisdiction to entertain any matter arising under the Act and in that event, the concerned debtor has to approach the Tribunal under the provisions of Section 17 of the Act.23. Thus, the Tribunal would be exercising its appellate jurisdiction when the action initiated under the provisions of Section 13 of the Act is challenged before the Tribunal. There is a difference between the Tribunal’s original jurisdiction under the provisions of the DRT Act and the appellate jurisdiction under the Act.24. The issue with regard to availability of a forum for challenging the action under the provisions of the Act had been dealt with by this Court in the case of Mardia Chemicals Ltd. (supra). This Court, in the said case, unequivocally held that the aggrieved debtor can never be without any remedy and we firmly believe that the legislature would normally not leave a person without any remedy when a harsh action against him is initiated under the provisions of the Act.25. So as to know the appellate jurisdiction of the Tribunal, one has to look at the provisions of the Act as Section 17 of the Act specifically provides a right to the aggrieved debtor to challenge the validity of an action initiated under Section 13(4) of the Act before the Tribunal. Moreover, the Act was enacted in 2002 and the legislature is presumed to have knowledge about the provisions of Section 1(4) of the DRT Act. So harmonious reading of both the aforestated Sections would not be contrary to any of the legal provisions.26. For the aforestated reasons, we are of the view that the application submitted by the appellant bank under Order VII Rule 11 of the CPC should have been granted by the trial Court as, according to Section 34 of the Act, a Civil Court has no jurisdiction to entertain any appeal arising under the Act.
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22. In the instant case, we are concerned with the challenge to the proceedings initiated under Section 13 of the Act. There is a specific provision in the Act to the effect that the proceedings initiated under the Act cannot be challenged before a Civil Court because the Civil Court has no jurisdiction to entertain any matter arising under the Act and in that event, the concerned debtor has to approach the Tribunal under the provisions of Section 17 of the Act.23. Thus, the Tribunal would be exercising its appellate jurisdiction when the action initiated under the provisions of Section 13 of the Act is challenged before the Tribunal. There is a difference between theoriginal jurisdiction under the provisions of the DRT Act and the appellate jurisdiction under the Act.24. The issue with regard to availability of a forum for challenging the action under the provisions of the Act had been dealt with by this Court in the case of Mardia Chemicals Ltd. (supra). This Court, in the said case, unequivocally held that the aggrieved debtor can never be without any remedy and we firmly believe that the legislature would normally not leave a person without any remedy when a harsh action against him is initiated under the provisions of the Act.25. So as to know the appellate jurisdiction of the Tribunal, one has to look at the provisions of the Act as Section 17 of the Act specifically provides a right to the aggrieved debtor to challenge the validity of an action initiated under Section 13(4) of the Act before the Tribunal. Moreover, the Act was enacted in 2002 and the legislature is presumed to have knowledge about the provisions of Section 1(4) of the DRT Act. So harmonious reading of both the aforestated Sections would not be contrary to any of the legalare of the view that the application submitted by the appellant bank under Order VII Rule 11 of the CPC should have been granted by the trial Court as, according to Section 34 of the Act, a Civil Court has no jurisdiction to entertain any appeal arising under the Act.
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Hindustan Petroleum Corpn. Ltd Vs. M/S. Pinkcity Midway Petroleums | statutory enactments, rules or regulations or other written orders or other laws or caused or by resulting from non-observance by the dealer of the provisions of this Agreement." 20. A perusal of various sub-clauses of this Clause of the Dealership Agreement shows that the dealer is under an obligation to faithfully, promptly and diligently observe and perform and carry out at all times all directions, orders, rules, terms and conditions of safe practices and marketing discipline while carrying on the dealership of the appellant. Clause 20 of the said Agreement also requires the dealer to observe and comply with the provisions of the Petroleum Act, Explosives Act, the Weights and Measures Act, 1976 and the rules and regulations made thereunder. 21. Clause 30 of the Agreement read thus: "30. Corporations right to stop/suspend Petrol/Diesel/Lubricants supply.Notwithstanding anything to the contrary herein contained the Corporation shall be at liberty upon a breach by the dealer of any covenant in this Agreement to stop/and/ or suspend forthwith supply of Petrol/Diesel/Lubricants and other products to the dealer and/ or sales for such period of periods as the Corporation may thinks fit, and such right of stoppage and/ or suspension shall be in addition to and/ or without prejudice to any other right or remedy available to the Corporation under this Agreement. The dealer shall not be entitled to claim any compensation or damage from the Corporation on account of any such stoppage and/ or suspension of supply." 22. A perusal of this Clause shows that if the dealer commits a default in complying with the obligations enumerated in Clause 20 of the Agreement, the appellant is entitled to stop or suspend supply of its petroleum products to such a dealer without prejudice to other remedies available under the Agreement. This right of the appellant to take action against an erring dealer under the terms of the Agreement is de hors the proceedings that may be available to be initiated against an erring dealer under the provisions of various other enactments referred to in clause 20 of the said Agreement including under the provisions of the 1985 Act. This right of the Corporation to suspend the supply of petroleum products to an erring dealer is a right exercised under the terms of the contract and is independent of the statutory provisions of the various Acts enumerated in Clause 20 of the Agreement. The courts below, in our opinion, have committed an error by misreading the terms of the contract when they came to the conclusion that the only remedy available as against a misconduct committed by an erring dealer in regard to short-supply and tampering with the seals lies under the provisions of the 1985 Act. The courts below have failed to notice that when a dealer short-supplies or tampers with the seal, apart from the statutory violation, he also commits a misconduct under clause 20 of the Agreement in regard to which the appellant is entitled to invoke Clause 30 of the Agreement to stop supply of petroleum products to such dealer. The power conferred under the Agreement does not in any manner conflict with the statutory power under the 1985 Act nor does the prescribed procedure under the 1985 Act in regard to search and seizure and prosecution apply to the power of the appellant to suspend the supply of its petroleum products to an erring dealer. The power exercised by the appellant in such a situation is a contractual power under the agreement and not a statutory one under the 1985 Act. The existence of dual procedure; one under the criminal law and the other under the contractual law is a well-accepted legal phenomenon in the Indian jurisprudence. 23. Therefore, in our opinion, the courts below have erred in coming to the conclusion that the appellant did not have the legal authority to investigate and proceed against the respondent for its alleged misconduct under the terms of the Dealership Agreement. We are also of the opinion that if the appellant is satisfied that the respondent is indulging in short-supply or tampering with the seals, it will be entitled to initiate such action as is contemplated under the agreement like suspending or stopping the supply of petroleum products to such erring dealer. If in that process any dispute arises between the appellant and such dealer, the same will have to be referred to arbitration as contemplated under Clause 40 of the Dealership Agreement.24. This brings us to consider the last question involved in this appeal, namely, the maintainability of the revision petition before the High Court under Section 115 of the CPC. The High Court by the impugned order has come to the conclusion that its jurisdiction to entertain a revision petition would only be available if the order impugned is such that if its is allowed to stand, it would occasion failure of justice or cause an irreparable injury to a party against whom the said order is made. In support of this finding, the High Court has relied upon certain judgments of this Court. Having perused the said judgments, we are of the opinion that the findings given in those judgments do not apply to the facts of this case at all. We have come to the conclusion that the Civil Court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. Therefore, we are of the opinion that the trial court failed to exercise its jurisdiction vested in it under Section 115 of the C.P.C. when it rejected the application of the appellant filed under Sections 8 and 5 of the Act. In such a situation, refusal to refer the dispute to arbitration would amount to failure to justice as also causing irreparable injury to the appellant. For the said reason, we are of the opinion that the High Court has erred in coming to the conclusion that the appellant was not entitled to the relief under Section 115 CPC. | 1[ds]23. Therefore, in our opinion, the courts below have erred in coming to the conclusion that the appellant did not have the legal authority to investigate and proceed against the respondent for its alleged misconduct under the terms of the Dealership Agreement. We are also of the opinion that if the appellant is satisfied that the respondent is indulging inor tampering with the seals, it will be entitled to initiate such action as is contemplated under the agreement like suspending or stopping the supply of petroleum products to such erring dealer. If in that process any dispute arises between the appellant and such dealer, the same will have to be referred to arbitration as contemplated under Clause 40 of the Dealership Agreement.24. This brings us to consider the last question involved in this appeal, namely, the maintainabilityof the revision petition beforethe High Court under Section 115 of the CPC. The High Court by the impugned order has come to the conclusion that its jurisdiction to entertain a revision petition would only be available if the order impugned is such that if its is allowed to stand, it would occasion failure of justice or cause an irreparable injury to a party against whom the said order is made. In support of this finding, the High Court has relied upon certain judgments of this Court. Having perused the said judgments, we are of the opinion that the findings given in those judgments do not apply to the facts of this case at all. We have come to the conclusion that the Civil Court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. Therefore, we are of the opinion that the trial court failed to exercise its jurisdiction vested in it under Section 115 of the C.P.C. when it rejected the application of the appellant filed under Sections 8 and 5 of the Act. In such a situation, refusal to refer the dispute to arbitration would amount to failure to justice as also causing irreparable injury to the appellant. For the said reason, we are of the opinion that the High Court has erred in coming to the conclusion that the appellant was not entitled to the relief under Section 115 CPC.A perusal of this clause clearly shows that the parties to the Dealership Agreement had agreed to refer their dispute arising out of the agreement, of whatever nature it may be, to an arbitrator as contemplated in that agreement. Section 8 of the Act in clear terms mandates that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement to refer such parties to arbiration, the language of this Section isanswer to this argument, n our opinion is found in Section 16 of the Act itself. It has empowered the Arbitral Tribunal to rule on its own jurisdiction including rule on any objection with respect to the existence or validity of the arbitrationagreement. That part, a Constitution Bench of this Court in Konkan Railway (supra) with reference to the power of the arbitrator under Section 16 has laid downmight also be that in a given case the Chief Justice or his designate may have nominated an arbitrator although the period of thirty days had not expired. If so, the Arbitral Tribunal would have been improperly constituted and be without jurisdiction. It would then be open to the aggrieved party to require the Arbitral Tribunal to rule on its jurisdiction. Section 16 provides for this. It states that the Arbitral Tribunal may rule on its own jurisdiction. That the Arbitral Tribunal may rule "on any objections with respect to the existence or validity of the arbitration agreement" shows that the Arbitral Tribunals authority under Section 16 is not confined to the width of its jurisdiction, as was submitted by learned counsel for the appellants, but goes to the very root of its jurisdiction. There would, therefore, be no impediment in contending before the Arbitral Tribunal that it had been wrongly constituted by reason of the fact that the Chief Justice or his designate had nominated an arbitrator although the period of thrity days had not expired and that, therefore, it had no jurisdiction". (emphasisIt is clear from the language of the Section, as interpreted by the Constitution Bench judgment in Konkan Railway (supra) that if there is any objection as to the applicability of the arbitration clause to the facts of the case, the same will have to be raised before the concerned Arbitral Tribunal. Therefore, in our opinion, in this case the courts below ought not to have proceeded to examine the applicability of the arbitration clause to the facts of the case in hand but ought to have left that issue to be determined by the Arbitral Tribunal as contemplated in Clause 40 of the Dealership Agreement and required under Sections 8 and 16 of the Act. | 1 | 5,447 | 891 | ### 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:
statutory enactments, rules or regulations or other written orders or other laws or caused or by resulting from non-observance by the dealer of the provisions of this Agreement." 20. A perusal of various sub-clauses of this Clause of the Dealership Agreement shows that the dealer is under an obligation to faithfully, promptly and diligently observe and perform and carry out at all times all directions, orders, rules, terms and conditions of safe practices and marketing discipline while carrying on the dealership of the appellant. Clause 20 of the said Agreement also requires the dealer to observe and comply with the provisions of the Petroleum Act, Explosives Act, the Weights and Measures Act, 1976 and the rules and regulations made thereunder. 21. Clause 30 of the Agreement read thus: "30. Corporations right to stop/suspend Petrol/Diesel/Lubricants supply.Notwithstanding anything to the contrary herein contained the Corporation shall be at liberty upon a breach by the dealer of any covenant in this Agreement to stop/and/ or suspend forthwith supply of Petrol/Diesel/Lubricants and other products to the dealer and/ or sales for such period of periods as the Corporation may thinks fit, and such right of stoppage and/ or suspension shall be in addition to and/ or without prejudice to any other right or remedy available to the Corporation under this Agreement. The dealer shall not be entitled to claim any compensation or damage from the Corporation on account of any such stoppage and/ or suspension of supply." 22. A perusal of this Clause shows that if the dealer commits a default in complying with the obligations enumerated in Clause 20 of the Agreement, the appellant is entitled to stop or suspend supply of its petroleum products to such a dealer without prejudice to other remedies available under the Agreement. This right of the appellant to take action against an erring dealer under the terms of the Agreement is de hors the proceedings that may be available to be initiated against an erring dealer under the provisions of various other enactments referred to in clause 20 of the said Agreement including under the provisions of the 1985 Act. This right of the Corporation to suspend the supply of petroleum products to an erring dealer is a right exercised under the terms of the contract and is independent of the statutory provisions of the various Acts enumerated in Clause 20 of the Agreement. The courts below, in our opinion, have committed an error by misreading the terms of the contract when they came to the conclusion that the only remedy available as against a misconduct committed by an erring dealer in regard to short-supply and tampering with the seals lies under the provisions of the 1985 Act. The courts below have failed to notice that when a dealer short-supplies or tampers with the seal, apart from the statutory violation, he also commits a misconduct under clause 20 of the Agreement in regard to which the appellant is entitled to invoke Clause 30 of the Agreement to stop supply of petroleum products to such dealer. The power conferred under the Agreement does not in any manner conflict with the statutory power under the 1985 Act nor does the prescribed procedure under the 1985 Act in regard to search and seizure and prosecution apply to the power of the appellant to suspend the supply of its petroleum products to an erring dealer. The power exercised by the appellant in such a situation is a contractual power under the agreement and not a statutory one under the 1985 Act. The existence of dual procedure; one under the criminal law and the other under the contractual law is a well-accepted legal phenomenon in the Indian jurisprudence. 23. Therefore, in our opinion, the courts below have erred in coming to the conclusion that the appellant did not have the legal authority to investigate and proceed against the respondent for its alleged misconduct under the terms of the Dealership Agreement. We are also of the opinion that if the appellant is satisfied that the respondent is indulging in short-supply or tampering with the seals, it will be entitled to initiate such action as is contemplated under the agreement like suspending or stopping the supply of petroleum products to such erring dealer. If in that process any dispute arises between the appellant and such dealer, the same will have to be referred to arbitration as contemplated under Clause 40 of the Dealership Agreement.24. This brings us to consider the last question involved in this appeal, namely, the maintainability of the revision petition before the High Court under Section 115 of the CPC. The High Court by the impugned order has come to the conclusion that its jurisdiction to entertain a revision petition would only be available if the order impugned is such that if its is allowed to stand, it would occasion failure of justice or cause an irreparable injury to a party against whom the said order is made. In support of this finding, the High Court has relied upon certain judgments of this Court. Having perused the said judgments, we are of the opinion that the findings given in those judgments do not apply to the facts of this case at all. We have come to the conclusion that the Civil Court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. Therefore, we are of the opinion that the trial court failed to exercise its jurisdiction vested in it under Section 115 of the C.P.C. when it rejected the application of the appellant filed under Sections 8 and 5 of the Act. In such a situation, refusal to refer the dispute to arbitration would amount to failure to justice as also causing irreparable injury to the appellant. For the said reason, we are of the opinion that the High Court has erred in coming to the conclusion that the appellant was not entitled to the relief under Section 115 CPC.
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### Explanation:
23. Therefore, in our opinion, the courts below have erred in coming to the conclusion that the appellant did not have the legal authority to investigate and proceed against the respondent for its alleged misconduct under the terms of the Dealership Agreement. We are also of the opinion that if the appellant is satisfied that the respondent is indulging inor tampering with the seals, it will be entitled to initiate such action as is contemplated under the agreement like suspending or stopping the supply of petroleum products to such erring dealer. If in that process any dispute arises between the appellant and such dealer, the same will have to be referred to arbitration as contemplated under Clause 40 of the Dealership Agreement.24. This brings us to consider the last question involved in this appeal, namely, the maintainabilityof the revision petition beforethe High Court under Section 115 of the CPC. The High Court by the impugned order has come to the conclusion that its jurisdiction to entertain a revision petition would only be available if the order impugned is such that if its is allowed to stand, it would occasion failure of justice or cause an irreparable injury to a party against whom the said order is made. In support of this finding, the High Court has relied upon certain judgments of this Court. Having perused the said judgments, we are of the opinion that the findings given in those judgments do not apply to the facts of this case at all. We have come to the conclusion that the Civil Court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. Therefore, we are of the opinion that the trial court failed to exercise its jurisdiction vested in it under Section 115 of the C.P.C. when it rejected the application of the appellant filed under Sections 8 and 5 of the Act. In such a situation, refusal to refer the dispute to arbitration would amount to failure to justice as also causing irreparable injury to the appellant. For the said reason, we are of the opinion that the High Court has erred in coming to the conclusion that the appellant was not entitled to the relief under Section 115 CPC.A perusal of this clause clearly shows that the parties to the Dealership Agreement had agreed to refer their dispute arising out of the agreement, of whatever nature it may be, to an arbitrator as contemplated in that agreement. Section 8 of the Act in clear terms mandates that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement to refer such parties to arbiration, the language of this Section isanswer to this argument, n our opinion is found in Section 16 of the Act itself. It has empowered the Arbitral Tribunal to rule on its own jurisdiction including rule on any objection with respect to the existence or validity of the arbitrationagreement. That part, a Constitution Bench of this Court in Konkan Railway (supra) with reference to the power of the arbitrator under Section 16 has laid downmight also be that in a given case the Chief Justice or his designate may have nominated an arbitrator although the period of thirty days had not expired. If so, the Arbitral Tribunal would have been improperly constituted and be without jurisdiction. It would then be open to the aggrieved party to require the Arbitral Tribunal to rule on its jurisdiction. Section 16 provides for this. It states that the Arbitral Tribunal may rule on its own jurisdiction. That the Arbitral Tribunal may rule "on any objections with respect to the existence or validity of the arbitration agreement" shows that the Arbitral Tribunals authority under Section 16 is not confined to the width of its jurisdiction, as was submitted by learned counsel for the appellants, but goes to the very root of its jurisdiction. There would, therefore, be no impediment in contending before the Arbitral Tribunal that it had been wrongly constituted by reason of the fact that the Chief Justice or his designate had nominated an arbitrator although the period of thrity days had not expired and that, therefore, it had no jurisdiction". (emphasisIt is clear from the language of the Section, as interpreted by the Constitution Bench judgment in Konkan Railway (supra) that if there is any objection as to the applicability of the arbitration clause to the facts of the case, the same will have to be raised before the concerned Arbitral Tribunal. Therefore, in our opinion, in this case the courts below ought not to have proceeded to examine the applicability of the arbitration clause to the facts of the case in hand but ought to have left that issue to be determined by the Arbitral Tribunal as contemplated in Clause 40 of the Dealership Agreement and required under Sections 8 and 16 of the Act.
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Navjot Singh Sidhu Vs. The State Of Punjab And Anr. Etc | Act and having himself resigned from the membership of the Parliament, cannot again come back to the Parliament until the appeal is decided in his favour. In our opinion the contentions raised have no substance. The broad features of the case which impel us to grant the order in favour of the appellant have already been discussed earlier and it is not necessary to repeat the same. The argument that the appellant having given up his right under Sub-section (4) of Section 8 should not be permitted to offer himself as a candidate, again is wholly misconceived. If a person convicted of any offence enumerated in Sub-sections (1), (2) and (3) of Section 8 of the Act files an appeal within three months he continues to remain a Member of Parliament or Legislature of a Sate on the basis of protection afforded by Sub-section (4), but not on any moral authority because the electorate had exercised their franchise prior to the order of conviction and not when he had become a convict. But a person who resigns from the Parliament or the Assembly and seeks a re-election, if elected, will have greater moral authority to represent the constituency. Therefore, it is not possible to accept the contentions raised by Shri Sushil Kumar. 13. Shri Rakesh Dwivedi, learned senior counsel for the complainant has submitted that in order to maintain purity and probity in public bodies, criminalisation of politics has to be stopped and persons who have been convicted of any offence should not be allowed to enter the Parliament. He has elaborated his argument by submitting that irrespective of quantum of sentence if a person is convicted for an offence referred to in Sub-section (1) of Section 8 where the punishment imposed may be only a fine, a person will incur the disqualification from the date of conviction which will remain for a period of six years and this evinces the intention of the Legislature that a convict should not enter the precincts of Parliament or Legislature of a State. In our opinion the contention raised cannot be accepted. The Representation of the People Act, 1951 is a complete Code. The preamble of the Act is - An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.The Act provides not only the eligibility and qualification for membership of the House of People and Legislative Assembly but also for disqualification on conviction and other matters. The Parliament in its wisdom having made a specific provision for disqualification on conviction by enacting Section 8, it is not for the Court to abridge or expand the same. The decisions of this Court rendered in Rama Narang v. Ramesh Narang & Ors. (supra) and Ravi Kant S. Patil v. Sarvabhouma S. Bagali (supra) having recognized the power possessed by the Court of appeal to suspend or stay an order of the conviction and having also laid down the parameters for exercise of such power, it is not possible to hold, as a matter of rule, or, to lay down, that in order to prevent any person who has committed an offence from entering the Parliament or the Legislative Assembly the order of the conviction should not be suspended. The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical. 14. Shri Rakesh Dwivedi has also submitted that once an accused has been convicted and sentenced, it is only the execution of the sentence which can be suspended and the order of conviction cannot be suspended or stayed as the same is not capable of being stayed or suspended. For this reliance is placed on certain observations made in paras 34 and 44 of the decision rendered in B.R. Kapur vs. State of T.N. & Anr. (2001) 7 SCC 231 and on paras 42, 43, 53 and 54 in K. Prabhakaran vs. P. Jayarajan (2005) 1 SCC 754. The contention is that the appellant would not be absolved of the disqualification even if an order of suspension or stay of the conviction is passed by this Court. We are dealing here with the limited question, viz., the prayer made by the appellant for suspending or staying the order of conviction. We are not required to adjudicate upon the question as to what will be the effect of the order and further whether he will continue to be disqualified for the purpose of contesting the election even if the prayer made by the appellant is granted as such an issue is wholly alien to the present controversy which can arise only in an election petition where the validity of the election may be called in question. 15. Lastly, Shri Dwivedi has submitted that in view of the law laid down in State of Tamil Nadu vs. A. Jaganathan (1996) 5 SCC 329 and K.C. Sareen vs. C.B.I., Chandigarh (2001) 6 SCC 584 the order of conviction passed against the appellant should not be suspended. The cases cited have no application to the facts of the present case as both of them related to conviction on charges of corruption and in that context it was observed that when conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused. This is not the case here. 16. For | 1[ds]. This provision has been interpreted by a Constitution Bench in K. Prabhakaran vs. P. Jayarajan (2005) 1 SCC 754 and it has been held that the protection against disqualification will be available only till the current life of the House (Parliament or the Legislature of a State) and the person continues to be a member of a House, and not thereafter. Since the appellant was a sitting Member of Parliament, he would not have incurred the disqualification as provided in(3) of Section 8 of the Act, for a period of 3 months and if within that period he had filed an appeal until the decision of the appeal. Therefore, the appellant could have easily avoided the incurring of the disqualification by filing an appeal within three months from the date of his conviction by the High Court. However, he chose to resign from the membership of the Lok Sabha soon after he was convicted by the High Court and wants to seek a fresh mandate by contesting the election.3.Before proceeding further it may be seen whether there is any provision which may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence.(1) of Section 389 says that pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released or bail, or on his own bond. Thisconfers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. This question has been examined in considerable detail by a Three Judge Bench of this Court in Rama Narang vs. Ramesh Narang & Ors. (1995) 2 SCC 513 and Ahmadi, C.J., speaking for the Court, held as under (para 19 of the reports)That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and, therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay or suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company."The aforesaid view has recently been reiterated and followed by another Three Judge Bench in Ravi Kant S. Patil vs. Sarvabhouma S. Bagali JT 2006 (1) SC 578. After referring to the decisions on the issue, viz., State of Tamil Nadu vs. A. Jaganathan (1996) 5 SCC 329 , K.C. Sareen vs. C.B.I., Chandigarh (2001) 6 SCC 584 , B.R. Kapur vs. State of T.N. & Anr. (2001) 7 SCC 231 and State of Maharashtra vs. Gajanan & Anr. (2003) 12 SCC 432 , this Court concluded (para 12.5 of the report):"All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences."The Court also observedIt deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the convictionThe legal position is, therefore, clear that an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.Though for the purpose of decision of the prayer made by the appellant for staying or suspending the order of conviction, it is not necessary to minutely examine the merits of the case, nevertheless we consider it proper to refer to the medical evidence, which has an important bearing on the nature of the offence alleged to have been committed by theHigh Court has not adverted to this aspect of the case, viz, that in the FIR it was not specifically mentioned that the appellant Navjot Singh Sidhu had given the blow on the head of the deceased. This fact was also not stated by Jaswinder Singh in his statement before the learned Sessions Judge which was recorded on 20.1.1993 before the order had been passed under Section 319 Cr.P.C. summoning the appellant.10. We have pointed out above the broad features of the case. The incident happened all of a sudden without anyThe deceased was wholly unknown to the appellant. There was no motive for commission of the crime. The accused are alleged to have lost temper and started giving abuses on account of objection raised by the occupants of the Maruti car due to obstruction being caused by the vehicle of the appellant. Blows by fist are alleged to have been given and no weapon of any kind has been used. The medical evidence shows that the deceased had a diseased heart. The doctor who performed theexamination was unable to give the cause of death. The Medical Board gave its opinion after nearly a fortnight and that too does not ascribe the death due to any external injury but says "effects of head injury and cardiac condition." The medical evidence does not conclusively establish that the death occurred due to blow given on the head. If in the FIR, which is the earliest version, and, also in his statement in Court which was recorded after more than 4 years on 20.1.1993, Jaswinder Singh did not assign any role of causing injury on the head of the deceased to the appellant, whether his subsequent statement given after several years, wherein he assigned the specific role to the appellant of hitting the deceased on the head by a fist and thereby making him responsible for causing the death of the deceased should be believed, will certainly require consideration at the time of hearing the appeal. If the statement which Jaswinder Singh gave after several years wherein he attributed the head injury to the appellant is not accepted for the reason that it is at variance with the version in the FIR and his earlier statement, the appellant cannot be held guilty under Section 304 Part II IPC. These features of the case which touch upon the culpability of the appellant, prima facie appear to be in his favour. Another feature which has a bearing is that the findings on factual aspects of the case recorded in favour of the appellant by the learned Sessions Judge resulting in acquittal have been reversed in appeal by the High Court.11. The incident took place on 27.12.1988. It has nowith the public life of the appellant which he entered much later in 2004 when he was elected as a Member of the Parliament. It is not a case where he took advantage of his position as M.P. in commission of the crime. As already stated, it was not necessary for the appellant to have resigned from the membership of the Parliament as he could in law continue as M.P. by merely filing an appeal within a period of 3 months and had he adopted such a course he could have easily avoided incurring any disqualification at least till the decision of the appeal. However, he has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. In the event prayer made by the appellant is not granted he would suffer irreparable injury as he would not be able to contest for the seat which he held and has fallen vacant only on account of his voluntary resignation which he did on purely moral grounds. Having regard to the entire facts and circumstances mentioned above we are of the opinion that it a fit case where the order of conviction passed by the High Court deserves to beour opinion the contentions raised have no substance. The broad features of the case which impel us to grant the order in favour of the appellant have already been discussed earlier and it is not necessary to repeat the same. The argument that the appellant having given up his right under(4) of Section 8 should not be permitted to offer himself as a candidate, again is wholly misconceived. If a person convicted of any offence enumerated in(1), (2) and (3) of Section 8 of the Act files an appeal within three months he continues to remain a Member of Parliament or Legislature of a Sate on the basis of protection afforded by(4), but not on any moral authority because the electorate had exercised their franchise prior to the order of conviction and not when he had become a convict. But a person who resigns from the Parliament or the Assembly and seeks aif elected, will have greater moral authority to represent the constituency. Therefore, it is not possible to accept the contentions raised by Shri Sushilour opinion the contention raised cannot be accepted. The Representation of the People Act, 1951 is a complete Code. The preamble of the ActAct to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.The Act provides not only the eligibility and qualification for membership of the House of People and Legislative Assembly but also for disqualification on conviction and other matters. The Parliament in its wisdom having made a specific provision for disqualification on conviction by enacting Section 8, it is not for the Court to abridge or expand the same. The decisions of this Court rendered in Rama Narang v. Ramesh Narang & Ors. (supra) and Ravi Kant S. Patil v. Sarvabhouma S. Bagali (supra) having recognized the power possessed by the Court of appeal to suspend or stay an order of the conviction and having also laid down the parameters for exercise of such power, it is not possible to hold, as a matter of rule, or, to lay down, that in order to prevent any person who has committed an offence from entering the Parliament or the Legislative Assembly the order of the conviction should not be suspended. The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.We are not required to adjudicate upon the question as to what will be the effect of the order and further whether he will continue to be disqualified for the purpose of contesting the election even if the prayer made by the appellant is granted as such an issue is wholly alien to the present controversy which can arise only in an election petition where the validity of the election may be called incases cited have no application to the facts of the present case as both of them related to conviction on charges of corruption and in that context it was observed that when conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused. This is not the case here. | 1 | 5,493 | 2,641 | ### Instruction:
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Act and having himself resigned from the membership of the Parliament, cannot again come back to the Parliament until the appeal is decided in his favour. In our opinion the contentions raised have no substance. The broad features of the case which impel us to grant the order in favour of the appellant have already been discussed earlier and it is not necessary to repeat the same. The argument that the appellant having given up his right under Sub-section (4) of Section 8 should not be permitted to offer himself as a candidate, again is wholly misconceived. If a person convicted of any offence enumerated in Sub-sections (1), (2) and (3) of Section 8 of the Act files an appeal within three months he continues to remain a Member of Parliament or Legislature of a Sate on the basis of protection afforded by Sub-section (4), but not on any moral authority because the electorate had exercised their franchise prior to the order of conviction and not when he had become a convict. But a person who resigns from the Parliament or the Assembly and seeks a re-election, if elected, will have greater moral authority to represent the constituency. Therefore, it is not possible to accept the contentions raised by Shri Sushil Kumar. 13. Shri Rakesh Dwivedi, learned senior counsel for the complainant has submitted that in order to maintain purity and probity in public bodies, criminalisation of politics has to be stopped and persons who have been convicted of any offence should not be allowed to enter the Parliament. He has elaborated his argument by submitting that irrespective of quantum of sentence if a person is convicted for an offence referred to in Sub-section (1) of Section 8 where the punishment imposed may be only a fine, a person will incur the disqualification from the date of conviction which will remain for a period of six years and this evinces the intention of the Legislature that a convict should not enter the precincts of Parliament or Legislature of a State. In our opinion the contention raised cannot be accepted. The Representation of the People Act, 1951 is a complete Code. The preamble of the Act is - An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.The Act provides not only the eligibility and qualification for membership of the House of People and Legislative Assembly but also for disqualification on conviction and other matters. The Parliament in its wisdom having made a specific provision for disqualification on conviction by enacting Section 8, it is not for the Court to abridge or expand the same. The decisions of this Court rendered in Rama Narang v. Ramesh Narang & Ors. (supra) and Ravi Kant S. Patil v. Sarvabhouma S. Bagali (supra) having recognized the power possessed by the Court of appeal to suspend or stay an order of the conviction and having also laid down the parameters for exercise of such power, it is not possible to hold, as a matter of rule, or, to lay down, that in order to prevent any person who has committed an offence from entering the Parliament or the Legislative Assembly the order of the conviction should not be suspended. The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical. 14. Shri Rakesh Dwivedi has also submitted that once an accused has been convicted and sentenced, it is only the execution of the sentence which can be suspended and the order of conviction cannot be suspended or stayed as the same is not capable of being stayed or suspended. For this reliance is placed on certain observations made in paras 34 and 44 of the decision rendered in B.R. Kapur vs. State of T.N. & Anr. (2001) 7 SCC 231 and on paras 42, 43, 53 and 54 in K. Prabhakaran vs. P. Jayarajan (2005) 1 SCC 754. The contention is that the appellant would not be absolved of the disqualification even if an order of suspension or stay of the conviction is passed by this Court. We are dealing here with the limited question, viz., the prayer made by the appellant for suspending or staying the order of conviction. We are not required to adjudicate upon the question as to what will be the effect of the order and further whether he will continue to be disqualified for the purpose of contesting the election even if the prayer made by the appellant is granted as such an issue is wholly alien to the present controversy which can arise only in an election petition where the validity of the election may be called in question. 15. Lastly, Shri Dwivedi has submitted that in view of the law laid down in State of Tamil Nadu vs. A. Jaganathan (1996) 5 SCC 329 and K.C. Sareen vs. C.B.I., Chandigarh (2001) 6 SCC 584 the order of conviction passed against the appellant should not be suspended. The cases cited have no application to the facts of the present case as both of them related to conviction on charges of corruption and in that context it was observed that when conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused. This is not the case here. 16. For
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appellant of hitting the deceased on the head by a fist and thereby making him responsible for causing the death of the deceased should be believed, will certainly require consideration at the time of hearing the appeal. If the statement which Jaswinder Singh gave after several years wherein he attributed the head injury to the appellant is not accepted for the reason that it is at variance with the version in the FIR and his earlier statement, the appellant cannot be held guilty under Section 304 Part II IPC. These features of the case which touch upon the culpability of the appellant, prima facie appear to be in his favour. Another feature which has a bearing is that the findings on factual aspects of the case recorded in favour of the appellant by the learned Sessions Judge resulting in acquittal have been reversed in appeal by the High Court.11. The incident took place on 27.12.1988. It has nowith the public life of the appellant which he entered much later in 2004 when he was elected as a Member of the Parliament. It is not a case where he took advantage of his position as M.P. in commission of the crime. As already stated, it was not necessary for the appellant to have resigned from the membership of the Parliament as he could in law continue as M.P. by merely filing an appeal within a period of 3 months and had he adopted such a course he could have easily avoided incurring any disqualification at least till the decision of the appeal. However, he has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. In the event prayer made by the appellant is not granted he would suffer irreparable injury as he would not be able to contest for the seat which he held and has fallen vacant only on account of his voluntary resignation which he did on purely moral grounds. Having regard to the entire facts and circumstances mentioned above we are of the opinion that it a fit case where the order of conviction passed by the High Court deserves to beour opinion the contentions raised have no substance. The broad features of the case which impel us to grant the order in favour of the appellant have already been discussed earlier and it is not necessary to repeat the same. The argument that the appellant having given up his right under(4) of Section 8 should not be permitted to offer himself as a candidate, again is wholly misconceived. If a person convicted of any offence enumerated in(1), (2) and (3) of Section 8 of the Act files an appeal within three months he continues to remain a Member of Parliament or Legislature of a Sate on the basis of protection afforded by(4), but not on any moral authority because the electorate had exercised their franchise prior to the order of conviction and not when he had become a convict. But a person who resigns from the Parliament or the Assembly and seeks aif elected, will have greater moral authority to represent the constituency. Therefore, it is not possible to accept the contentions raised by Shri Sushilour opinion the contention raised cannot be accepted. The Representation of the People Act, 1951 is a complete Code. The preamble of the ActAct to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.The Act provides not only the eligibility and qualification for membership of the House of People and Legislative Assembly but also for disqualification on conviction and other matters. The Parliament in its wisdom having made a specific provision for disqualification on conviction by enacting Section 8, it is not for the Court to abridge or expand the same. The decisions of this Court rendered in Rama Narang v. Ramesh Narang & Ors. (supra) and Ravi Kant S. Patil v. Sarvabhouma S. Bagali (supra) having recognized the power possessed by the Court of appeal to suspend or stay an order of the conviction and having also laid down the parameters for exercise of such power, it is not possible to hold, as a matter of rule, or, to lay down, that in order to prevent any person who has committed an offence from entering the Parliament or the Legislative Assembly the order of the conviction should not be suspended. The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.We are not required to adjudicate upon the question as to what will be the effect of the order and further whether he will continue to be disqualified for the purpose of contesting the election even if the prayer made by the appellant is granted as such an issue is wholly alien to the present controversy which can arise only in an election petition where the validity of the election may be called incases cited have no application to the facts of the present case as both of them related to conviction on charges of corruption and in that context it was observed that when conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused. This is not the case here.
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Rajendra Mills, Limited Vs. Its Workmen | take appropriate disciplinary action. On appeal by the employer the Appellate Tribunal set aside the above direction of the first tribunal as regards the basic wages, but as indicated above confirmed its award as regards dearness allowance. The employer now contends that even as regards dearness allowance, reason and justice require that it should be linked with production and that if the appropriate workload is not reached by an individual workman the dearness allowance would be payable at a proportionately reduced rate.2. It is important to mention at the outset that this question as to whether the dearnees allowance would be subject to such reduction if the appropriate workload is not reached no longer arises after 25 May 1956, as for the subsequent period the management has agreed that dearness allowance would be independent of production. The decision of the question will affect the quantum of dearnees allowance payable to reelers only after the period 26 August 1954, on which date the reference was made, to 23 May 1956. Even so, we are informed that a considerable sum is involved in the dispute so that from the point of view of both employer and labour the matter is certainly of real importance.On behalf of the appellant, Sri Viswatha Sastri contended that as soon as a piece-rate system is introduced in place of a time-rate, it becomes necessary for the system to be really effective that all wages should be linked with production, for without risk of a diminution of remuneration if a certain amount of product is not reached the piece-rate worker becomes lazy. If this is so even as regards the basic portion of the wages, it is even more so, it is urged, in respect of dearness allowance, for if dearness allowance does not depend on production a curious position may be reached that even when not a single unit is produced, the workman gets some payment in the shape of dearness allowance. We are not prepared to say that there is not any force in this argument. It has to be remembered however that this very employer has even before the dispute arose been working a system of piece-rate wage where dearness allowance was not linked with production. It is admitted thus that in the bundling department of this very company dearness allowance for piece-rate workers is independent of production. The argument that a piece-rate system becomes unworkable if dearness allowance is made independent of production is therefore belied by the appellants own conduct and experience.3. As we have already pointed out the dearness allowance has subsequent to 23 May 1956, been made independent of production in this very factory. This also shows that however beneficial to production it might be to link dearness allowance with production in a piece-rate system, a piece-rate system does not necessarily become unworkable if dearness allowance is payable independent of production.4. It is worth noticing in this connexion that this argument that if dearness allowance is payable independent of production, piece-rate system becomes unworkable does not appear to have been seriously pressed before the Appellate Tribunal. There the appellants contention that dearness allowance should be linked with production appears to have been almost wholly based on an agreement reached on 3 June 1951. This agreement embodied in document marked Ex. M. 14 was in these words :-"We shall agree to work subject to the under mentioned conditions.(1) We agree to work on less wages, if the reelers who are junior to us are not retrenched.(2) We also agree that the workers who give less number of doffs than that fixed by the standardization committee, may be paid wages, inclusive of dearness allowance, in proportion to the number of doffs given by each worker."5. As pointed out by the Appellate Tribunal this agreement was reached when management wanted to retrench 19 reelers and workmen in order to avoid the retrenchment agreed to the terms mentioned in Ex. M. 14. The fact that such a term was introduced in its agreement strongly supports the view that even in the reeling department inspite of what the managements witness No. 1 has said dearness allowance was independent of production. If that were not so it is difficult to understand why such a stipulation as in Cl. 2 of the agreement (Ex. M. 14) should be considered by the management as a good consideration in view of which the proposal to retrench was dropped.Even apart, however, from the question whether in the reeling department itself dearness allowance had before the date of agreement in June 1951 been linked with production or independent of production the undoubted and admitted position is that in other departments of this very company dearness allowance to piece-rate workers was independent of production. As we have mentioned earlier, this fact was (sic) taken with the further fact that dearness allowance in all the departments where piece-rate system is in vogue will remain independent of production, practically neutralizes in the present case and for the present employer the argument that logic requires that on a piece-rate system dearness allowance must be linked with production.Learned counsel for the appellant drew our attention to the provisions of S.25C of the industrial disputes Act and some provisions of the Payment of Wages Act and argued that these show the view of the legislature that dearness allowance should be linked with the amount of work done. We think it unnecessary in the present case to express any opinion whether there is any force in this contention; for in the peculiar circumstances of this case where the employer himself appears to have based his case wholly on the agreement which is no longer in force and his conduct has shown that there is no real difficulty in working on a piece-rate system when dearness allowance is being linked with production, we are of opinion that we shall not be justified in interfering with the decision of the tribunals below that the dearness allowance should remain independent of production.6. | 0[ds]Even apart, however, from the question whether in the reeling department itself dearness allowance had before the date of agreement in June 1951 been linked with production or independent of production the undoubted and admitted position is that in other departments of this very company dearness allowance toworkers was independent of production. As we have mentioned earlier, this fact was (sic) taken with the further fact that dearness allowance in all the departments wheresystem is in vogue will remain independent of production, practically neutralizes in the present case and for the present employer the argument that logic requires that on asystem dearness allowance must be linked with production.Learned counsel for the appellant drew our attention to the provisions of S.25C of the industrial disputes Act and some provisions of the Payment of Wages Act and argued that these show the view of the legislature that dearness allowance should be linked with the amount of work done. We think it unnecessary in the present case to express any opinion whether there is any force in this contention; for in the peculiar circumstances of this case where the employer himself appears to have based his case wholly on the agreement which is no longer in force and his conduct has shown that there is no real difficulty in working on asystem when dearness allowance is being linked with production, we are of opinion that we shall not be justified in interfering with the decision of the tribunals below that the dearness allowance should remain independent of production. | 0 | 1,193 | 270 | ### Instruction:
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take appropriate disciplinary action. On appeal by the employer the Appellate Tribunal set aside the above direction of the first tribunal as regards the basic wages, but as indicated above confirmed its award as regards dearness allowance. The employer now contends that even as regards dearness allowance, reason and justice require that it should be linked with production and that if the appropriate workload is not reached by an individual workman the dearness allowance would be payable at a proportionately reduced rate.2. It is important to mention at the outset that this question as to whether the dearnees allowance would be subject to such reduction if the appropriate workload is not reached no longer arises after 25 May 1956, as for the subsequent period the management has agreed that dearness allowance would be independent of production. The decision of the question will affect the quantum of dearnees allowance payable to reelers only after the period 26 August 1954, on which date the reference was made, to 23 May 1956. Even so, we are informed that a considerable sum is involved in the dispute so that from the point of view of both employer and labour the matter is certainly of real importance.On behalf of the appellant, Sri Viswatha Sastri contended that as soon as a piece-rate system is introduced in place of a time-rate, it becomes necessary for the system to be really effective that all wages should be linked with production, for without risk of a diminution of remuneration if a certain amount of product is not reached the piece-rate worker becomes lazy. If this is so even as regards the basic portion of the wages, it is even more so, it is urged, in respect of dearness allowance, for if dearness allowance does not depend on production a curious position may be reached that even when not a single unit is produced, the workman gets some payment in the shape of dearness allowance. We are not prepared to say that there is not any force in this argument. It has to be remembered however that this very employer has even before the dispute arose been working a system of piece-rate wage where dearness allowance was not linked with production. It is admitted thus that in the bundling department of this very company dearness allowance for piece-rate workers is independent of production. The argument that a piece-rate system becomes unworkable if dearness allowance is made independent of production is therefore belied by the appellants own conduct and experience.3. As we have already pointed out the dearness allowance has subsequent to 23 May 1956, been made independent of production in this very factory. This also shows that however beneficial to production it might be to link dearness allowance with production in a piece-rate system, a piece-rate system does not necessarily become unworkable if dearness allowance is payable independent of production.4. It is worth noticing in this connexion that this argument that if dearness allowance is payable independent of production, piece-rate system becomes unworkable does not appear to have been seriously pressed before the Appellate Tribunal. There the appellants contention that dearness allowance should be linked with production appears to have been almost wholly based on an agreement reached on 3 June 1951. This agreement embodied in document marked Ex. M. 14 was in these words :-"We shall agree to work subject to the under mentioned conditions.(1) We agree to work on less wages, if the reelers who are junior to us are not retrenched.(2) We also agree that the workers who give less number of doffs than that fixed by the standardization committee, may be paid wages, inclusive of dearness allowance, in proportion to the number of doffs given by each worker."5. As pointed out by the Appellate Tribunal this agreement was reached when management wanted to retrench 19 reelers and workmen in order to avoid the retrenchment agreed to the terms mentioned in Ex. M. 14. The fact that such a term was introduced in its agreement strongly supports the view that even in the reeling department inspite of what the managements witness No. 1 has said dearness allowance was independent of production. If that were not so it is difficult to understand why such a stipulation as in Cl. 2 of the agreement (Ex. M. 14) should be considered by the management as a good consideration in view of which the proposal to retrench was dropped.Even apart, however, from the question whether in the reeling department itself dearness allowance had before the date of agreement in June 1951 been linked with production or independent of production the undoubted and admitted position is that in other departments of this very company dearness allowance to piece-rate workers was independent of production. As we have mentioned earlier, this fact was (sic) taken with the further fact that dearness allowance in all the departments where piece-rate system is in vogue will remain independent of production, practically neutralizes in the present case and for the present employer the argument that logic requires that on a piece-rate system dearness allowance must be linked with production.Learned counsel for the appellant drew our attention to the provisions of S.25C of the industrial disputes Act and some provisions of the Payment of Wages Act and argued that these show the view of the legislature that dearness allowance should be linked with the amount of work done. We think it unnecessary in the present case to express any opinion whether there is any force in this contention; for in the peculiar circumstances of this case where the employer himself appears to have based his case wholly on the agreement which is no longer in force and his conduct has shown that there is no real difficulty in working on a piece-rate system when dearness allowance is being linked with production, we are of opinion that we shall not be justified in interfering with the decision of the tribunals below that the dearness allowance should remain independent of production.6.
### Response:
0
### Explanation:
Even apart, however, from the question whether in the reeling department itself dearness allowance had before the date of agreement in June 1951 been linked with production or independent of production the undoubted and admitted position is that in other departments of this very company dearness allowance toworkers was independent of production. As we have mentioned earlier, this fact was (sic) taken with the further fact that dearness allowance in all the departments wheresystem is in vogue will remain independent of production, practically neutralizes in the present case and for the present employer the argument that logic requires that on asystem dearness allowance must be linked with production.Learned counsel for the appellant drew our attention to the provisions of S.25C of the industrial disputes Act and some provisions of the Payment of Wages Act and argued that these show the view of the legislature that dearness allowance should be linked with the amount of work done. We think it unnecessary in the present case to express any opinion whether there is any force in this contention; for in the peculiar circumstances of this case where the employer himself appears to have based his case wholly on the agreement which is no longer in force and his conduct has shown that there is no real difficulty in working on asystem when dearness allowance is being linked with production, we are of opinion that we shall not be justified in interfering with the decision of the tribunals below that the dearness allowance should remain independent of production.
|
Sarva Shramik Sanghatana (K.V.)Mumbai Vs. State Of Maharashtra | is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus:"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."*** *** ***"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it." 19. We have referred to the aforesaid decisions and the principles laid down therein, because often decisions are cited for a proposition without reading the entire decision and the reasoning contained therein. In our opinion, the decision of this Court in Sarguja Transport case (supra) cannot be treated as a Euclids formula. 20. In the present case, we are satisfied that the application for withdrawal of the first petition under Section 25-O(1) was made bona fide because the respondent-company had received a letter from the Deputy Labour Commissioner on 5.4.2007 calling for a meeting of the parties so that an effort could be made for an amicable settlement. In fact, the respondent-company could have waited for the expiry of 60 days from the date of filing of its application under Section 25-O(1), on the expiry of which the application would have deemed to have been allowed under Section 25-O(3). The fact that it did not do so, and instead applied for withdrawal of its application under Section 25-O(1), shows its bona fide. The respondent-company was trying for an amicable settlement, and this was clearly bona fide, and it was not a case of bench hunting when it found that an adverse order was likely to be passed against it. Hence, Sarguja Transport case (supra) is clearly distinguishable, and will only apply where the first petition was withdrawn in order to do bench hunting or for some other mala fide purpose. 21. We agree with the learned counsel for the appellant that although the Code of Civil Procedure does not strictly apply to proceedings under Section 25-O(1) of the Industrial Disputes Act, or other judicial or quasi-judicial proceedings under in any other Act, some of the general principles in the CPC may be applicable. For instance, even if Section 11 of the CPC does not in terms strictly apply because both the proceedings may not be suits, the general principle of res judicata may apply vide Pondicherry Khadi & Village Industries Board vs. P. Kulothangan and another 2004 (1) SCC 68. However, this does not mean that all provisions in the CPC will strictly apply to proceedings which are not suits. 22. Learned counsel for the appellant has relied on an observation in the decision of this Court in U.P. State Brassware Corporation Ltd. vs. Uday Narain Pandey 2006(1) SCC 479, in paragraph 38 of which it is stated: "Order 7 Rule 7 of the Code of Civil Procedure confers powers upon the court to mould relief in a given situation. The provisions of the Code of Civil Procedure are applicable to the proceedings under the Industrial Disputes Act." 23. It may be noted that the observation in the aforesaid decision that the provisions of the CPC are applicable to proceedings under the Industrial Disputes Act was made in the context of Order 7 Rule 7 of the Code of Civil Procedure which confers powers upon the court to mould relief in a given situation. Hence, the aforesaid observation must be read in its proper context, and it cannot be interpreted to mean that all the provisions of the CPC will strictly apply to proceedings under the Industrial Disputes Act. 24. No doubt, Order XXIII Rule 1(4) CPC states that where the plaintiff withdraws a suit without permission of the court, he is precluded from instituting any fresh suit in respect of the same subject matter. However, in our opinion, this provision will apply only to suits. An application under Section 25-O(1) is not a suit, and hence, the said provision will not apply to such an application. 25. Learned counsel for the appellant has relied upon Section 25-O (5) of the Act which states: "An order of the State Government granting or refusing to grant permission shall, subject to the provisions of sub-section (6), be final and binding on all the parties and shall remain in force for one year from the date of such order." 26. Leaned counsel submitted that the order of the Labour Commissioner dated 12.4.2007 allowing the respondent-company to withdraw its closure application dated 1.2.2007 should be deemed to be an order refusing to grant permission, and hence a fresh application under Section 25-O(1) could not be filed before the expiry of one year from the date of the said order. We do not agree. In our opinion, Section 25-O(5) only applies when an order is passed on merits either granting or refusing to grant permission for closure. Since in the present case no order on merits was passed, but only an order permitting withdrawal of the closure application was passed, Section 25-O(5) has no application. 27. For the reasons given above this | 0[ds]In the present case, we are satisfied that the application for withdrawal of the first petition under Section 25-O(1) was made bona fide because the respondent-company had received a letter from the Deputy Labour Commissioner on 5.4.2007 calling for a meeting of the parties so that an effort could be made for an amicable settlement. In fact, the respondent-company could have waited for the expiry of 60 days from the date of filing of its application under Section 25-O(1), on the expiry of which the application would have deemed to have been allowed under Section 25-O(3). The fact that it did not do so, and instead applied for withdrawal of its application under Section 25-O(1), shows its bona fide. The respondent-company was trying for an amicable settlement, and this was clearly bona fide, and it was not a case of bench hunting when it found that an adverse order was likely to be passed against it. Hence, Sarguja Transport case (supra) is clearly distinguishable, and will only apply where the first petition was withdrawn in order to do bench hunting or for some other mala fideagree with the learned counsel for the appellant that although the Code of Civil Procedure does not strictly apply to proceedings under Section 25-O(1) of the Industrial Disputes Act, or other judicial or quasi-judicial proceedings under in any other Act, some of the general principles in the CPC may be applicable. For instance, even if Section 11 of the CPC does not in terms strictly apply because both the proceedings may not be suits, the general principle of res judicata may apply vide Pondicherry Khadi & Village Industries Board vs. P. Kulothangan and another 2004 (1) SCC 68. However, this does not mean that all provisions in the CPC will strictly apply to proceedings which are not suits. | 0 | 3,419 | 347 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus:"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."*** *** ***"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it." 19. We have referred to the aforesaid decisions and the principles laid down therein, because often decisions are cited for a proposition without reading the entire decision and the reasoning contained therein. In our opinion, the decision of this Court in Sarguja Transport case (supra) cannot be treated as a Euclids formula. 20. In the present case, we are satisfied that the application for withdrawal of the first petition under Section 25-O(1) was made bona fide because the respondent-company had received a letter from the Deputy Labour Commissioner on 5.4.2007 calling for a meeting of the parties so that an effort could be made for an amicable settlement. In fact, the respondent-company could have waited for the expiry of 60 days from the date of filing of its application under Section 25-O(1), on the expiry of which the application would have deemed to have been allowed under Section 25-O(3). The fact that it did not do so, and instead applied for withdrawal of its application under Section 25-O(1), shows its bona fide. The respondent-company was trying for an amicable settlement, and this was clearly bona fide, and it was not a case of bench hunting when it found that an adverse order was likely to be passed against it. Hence, Sarguja Transport case (supra) is clearly distinguishable, and will only apply where the first petition was withdrawn in order to do bench hunting or for some other mala fide purpose. 21. We agree with the learned counsel for the appellant that although the Code of Civil Procedure does not strictly apply to proceedings under Section 25-O(1) of the Industrial Disputes Act, or other judicial or quasi-judicial proceedings under in any other Act, some of the general principles in the CPC may be applicable. For instance, even if Section 11 of the CPC does not in terms strictly apply because both the proceedings may not be suits, the general principle of res judicata may apply vide Pondicherry Khadi & Village Industries Board vs. P. Kulothangan and another 2004 (1) SCC 68. However, this does not mean that all provisions in the CPC will strictly apply to proceedings which are not suits. 22. Learned counsel for the appellant has relied on an observation in the decision of this Court in U.P. State Brassware Corporation Ltd. vs. Uday Narain Pandey 2006(1) SCC 479, in paragraph 38 of which it is stated: "Order 7 Rule 7 of the Code of Civil Procedure confers powers upon the court to mould relief in a given situation. The provisions of the Code of Civil Procedure are applicable to the proceedings under the Industrial Disputes Act." 23. It may be noted that the observation in the aforesaid decision that the provisions of the CPC are applicable to proceedings under the Industrial Disputes Act was made in the context of Order 7 Rule 7 of the Code of Civil Procedure which confers powers upon the court to mould relief in a given situation. Hence, the aforesaid observation must be read in its proper context, and it cannot be interpreted to mean that all the provisions of the CPC will strictly apply to proceedings under the Industrial Disputes Act. 24. No doubt, Order XXIII Rule 1(4) CPC states that where the plaintiff withdraws a suit without permission of the court, he is precluded from instituting any fresh suit in respect of the same subject matter. However, in our opinion, this provision will apply only to suits. An application under Section 25-O(1) is not a suit, and hence, the said provision will not apply to such an application. 25. Learned counsel for the appellant has relied upon Section 25-O (5) of the Act which states: "An order of the State Government granting or refusing to grant permission shall, subject to the provisions of sub-section (6), be final and binding on all the parties and shall remain in force for one year from the date of such order." 26. Leaned counsel submitted that the order of the Labour Commissioner dated 12.4.2007 allowing the respondent-company to withdraw its closure application dated 1.2.2007 should be deemed to be an order refusing to grant permission, and hence a fresh application under Section 25-O(1) could not be filed before the expiry of one year from the date of the said order. We do not agree. In our opinion, Section 25-O(5) only applies when an order is passed on merits either granting or refusing to grant permission for closure. Since in the present case no order on merits was passed, but only an order permitting withdrawal of the closure application was passed, Section 25-O(5) has no application. 27. For the reasons given above this
### Response:
0
### Explanation:
In the present case, we are satisfied that the application for withdrawal of the first petition under Section 25-O(1) was made bona fide because the respondent-company had received a letter from the Deputy Labour Commissioner on 5.4.2007 calling for a meeting of the parties so that an effort could be made for an amicable settlement. In fact, the respondent-company could have waited for the expiry of 60 days from the date of filing of its application under Section 25-O(1), on the expiry of which the application would have deemed to have been allowed under Section 25-O(3). The fact that it did not do so, and instead applied for withdrawal of its application under Section 25-O(1), shows its bona fide. The respondent-company was trying for an amicable settlement, and this was clearly bona fide, and it was not a case of bench hunting when it found that an adverse order was likely to be passed against it. Hence, Sarguja Transport case (supra) is clearly distinguishable, and will only apply where the first petition was withdrawn in order to do bench hunting or for some other mala fideagree with the learned counsel for the appellant that although the Code of Civil Procedure does not strictly apply to proceedings under Section 25-O(1) of the Industrial Disputes Act, or other judicial or quasi-judicial proceedings under in any other Act, some of the general principles in the CPC may be applicable. For instance, even if Section 11 of the CPC does not in terms strictly apply because both the proceedings may not be suits, the general principle of res judicata may apply vide Pondicherry Khadi & Village Industries Board vs. P. Kulothangan and another 2004 (1) SCC 68. However, this does not mean that all provisions in the CPC will strictly apply to proceedings which are not suits.
|
Andhra Pradesh Pollution Control Board Vs. CCL Products (India) Limited | bank and the beneficiary to whom the guarantee is issued. Such a contract is independent of the underlying contract between the beneficiary and the third party at whose behest the bank guarantee is issued. 18. The principle which we have adopted accords with a consistent line of precedent of this Court. In Ansal Engineering Projects Ltd. v Tehri Hydro Development Corporation Ltd, 2 a three judge Bench of this Court held thus: 4. It is settled law that bank guarantee is an independent and distinct contract between the bank and the beneficiary and is not qualified by the underlying transaction and the validity of the primary contract between the person at whose instance the bank guarantee was given and the beneficiary. Unless fraud or special equity exists, is pleaded and prima facie established by strong evidence as a triable issue, the beneficiary cannot be restrained from encashing the bank guarantee even if dispute between the beneficiary and the person at whose instance the bank guarantee was given by the bank, had arisen in performance of the contract or execution of the works undertaken in furtherance thereof. The bank unconditionally and irrevocably promised to pay, on demand, the amount of liability undertaken in the guarantee without any demur or dispute in terms of the bank guarantee… 5. …The court exercising its power cannot interfere with enforcement of bank guarantee/letters of credit except only in cases where fraud or special equity is prima facie made out in the case as triable issue by strong evidence so as to prevent irretrievable injustice to the parties. The same principle was followed in State Bank of India v Mula Sahakari Sakhar Karkhana Ltd (2006) 6 SCC 293 where a two judge Bench of this Court held thus: 33. It is beyond any cavil that a bank guarantee must be construed on its own terms. It is considered to be a separate transaction. 34. If a construction, as was suggested by Mr Naphade, is to be accepted, it would also be open to a banker to put forward a case that absolute and unequivocal bank guarantee should be read as a conditional one having regard to circumstances attending thereto. It is, to our mind, impermissible in law. A bank guarantee constitutes an independent contract. In Hindustan Construction Co. Ltd. v. State of Bihar (1999) 8 SCC 436 , a two judge Bench of this Court formulated the condition upon which the invocation of the bank guarantee depends in the following terms: 9. What is important, therefore, is that the bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the bank guarantee or the person on whose behalf the guarantee was furnished. The terms of the bank guarantee are, therefore, extremely material. Since the bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the bank guarantee, or else, the invocation itself would be bad. (Emphasis supplied) 19. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee. 20. In the present case, the bank undertook to the appellant that it would pay the guaranteed amount on demand, subject to the overall amount stipulated in each of the three bank guarantees. It was not for the bank to determine as to whether the invocation of the bank guarantees was justified so long as the invocation was in terms of the bank guarantee. A demand once made would oblige the bank to pay under the terms of the bank guarantee. The State Bank of India correctly understood its legal obligations and paid over the amount to the appellant. In this view of the matter and having regard to the terms of the bank guarantees, we are of the view that the principle of law which has been formulated by the Tribunal cannot be accepted as reflecting the correct legal position. 21. That apart, we are unable to accept the finding of the Tribunal that the respondent was kept in the dark on the invocation. It is evident that following the invocation of the bank guarantees, the respondent itself addressed a communication on 20 September 2012 to the Member Secretary of the appellant. The communication contains a specific reference to the invocation of the bank guarantees. That apart, it is evident from the material on the record that the appellant had issued a notice to show cause to the respondent to which the respondent also submitted a response. The purpose and object of the bank guarantees was to enable the appellant to secure compliance with environmental standards prescribed in accordance with law. The appellant has invoked the bank guarantees issued by the respondent because of the failure of the respondent to discharge the obligations imposed upon it by the Task Force Committee on 26 August 2011 22. For the above reasons, we are of the view that the Tribunal has erred in interfering with the invocation of the bank guarantees and in directing the appellant to refund the amount of Rs 25 lakhs covered by the three guarantees. While invoking the bank guarantees, the appellant has clearly adverted to the fact that the status of compliance was reviewed in the Task Force Committee Meeting; and that the officials of the appellant had inspected the industry and had observed certain violations. The invocation of the bank guarantees was therefore in terms of the conditions stipulated in the bank guarantees. 23. The invocation of the bank guarantees was the subject matter of the present appeal. | 1[ds]The Tribunal held that the purpose of the bank guarantee was not commercial or industrial but was to secure compliance by the appellant with environmental norms that had been prescribed. Hence, in the view of the Tribunal, the appellant should have furnished a hearing to the respondent before the bank guarantees were invoked17. We are unable to subscribe to the legal position which has been formulated by the Tribunal. A bank guarantee constitutes an independent contract between the issuing bank and the beneficiary to whom the guarantee is issued. Such a contract is independent of the underlying contract between the beneficiary and the third party at whose behest the bank guarantee is issued19. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee.20. In the present case, the bank undertook to the appellant that it would pay the guaranteed amount on demand, subject to the overall amount stipulated in each of the three bank guarantees. It was not for the bank to determine as to whether the invocation of the bank guarantees was justified so long as the invocation was in terms of the bank guarantee. A demand once made would oblige the bank to pay under the terms of the bank guarantee. The State Bank of India correctly understood its legal obligations and paid over the amount to the appellant. In this view of the matter and having regard to the terms of the bank guarantees, we are of the view that the principle of law which has been formulated by the Tribunal cannot be accepted as reflecting the correct legal position.21. That apart, we are unable to accept the finding of the Tribunal that the respondent was kept in the dark on the invocation. It is evident that following the invocation of the bank guarantees, the respondent itself addressed a communication on 20 September 2012 to the Member Secretary of the appellant. The communication contains a specific reference to the invocation of the bank guarantees. That apart, it is evident from the material on the record that the appellant had issued a notice to show cause to the respondent to which the respondent also submitted a response. The purpose and object of the bank guarantees was to enable the appellant to secure compliance with environmental standards prescribed in accordance with law. The appellant has invoked the bank guarantees issued by the respondent because of the failure of the respondent to discharge the obligations imposed upon it by the Task Force Committee on 26 August 201122. For the above reasons, we are of the view that the Tribunal has erred in interfering with the invocation of the bank guarantees and in directing the appellant to refund the amount of Rs 25 lakhs covered by the three guarantees. While invoking the bank guarantees, the appellant has clearly adverted to the fact that the status of compliance was reviewed in the Task Force Committee Meeting; and that the officials of the appellant had inspected the industry and had observed certain violations. The invocation of the bank guarantees was therefore in terms of the conditions stipulated in the bank guarantees23. The invocation of the bank guarantees was the subject matter of the present appeal. | 1 | 3,394 | 612 | ### Instruction:
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:
bank and the beneficiary to whom the guarantee is issued. Such a contract is independent of the underlying contract between the beneficiary and the third party at whose behest the bank guarantee is issued. 18. The principle which we have adopted accords with a consistent line of precedent of this Court. In Ansal Engineering Projects Ltd. v Tehri Hydro Development Corporation Ltd, 2 a three judge Bench of this Court held thus: 4. It is settled law that bank guarantee is an independent and distinct contract between the bank and the beneficiary and is not qualified by the underlying transaction and the validity of the primary contract between the person at whose instance the bank guarantee was given and the beneficiary. Unless fraud or special equity exists, is pleaded and prima facie established by strong evidence as a triable issue, the beneficiary cannot be restrained from encashing the bank guarantee even if dispute between the beneficiary and the person at whose instance the bank guarantee was given by the bank, had arisen in performance of the contract or execution of the works undertaken in furtherance thereof. The bank unconditionally and irrevocably promised to pay, on demand, the amount of liability undertaken in the guarantee without any demur or dispute in terms of the bank guarantee… 5. …The court exercising its power cannot interfere with enforcement of bank guarantee/letters of credit except only in cases where fraud or special equity is prima facie made out in the case as triable issue by strong evidence so as to prevent irretrievable injustice to the parties. The same principle was followed in State Bank of India v Mula Sahakari Sakhar Karkhana Ltd (2006) 6 SCC 293 where a two judge Bench of this Court held thus: 33. It is beyond any cavil that a bank guarantee must be construed on its own terms. It is considered to be a separate transaction. 34. If a construction, as was suggested by Mr Naphade, is to be accepted, it would also be open to a banker to put forward a case that absolute and unequivocal bank guarantee should be read as a conditional one having regard to circumstances attending thereto. It is, to our mind, impermissible in law. A bank guarantee constitutes an independent contract. In Hindustan Construction Co. Ltd. v. State of Bihar (1999) 8 SCC 436 , a two judge Bench of this Court formulated the condition upon which the invocation of the bank guarantee depends in the following terms: 9. What is important, therefore, is that the bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the bank guarantee or the person on whose behalf the guarantee was furnished. The terms of the bank guarantee are, therefore, extremely material. Since the bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the bank guarantee, or else, the invocation itself would be bad. (Emphasis supplied) 19. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee. 20. In the present case, the bank undertook to the appellant that it would pay the guaranteed amount on demand, subject to the overall amount stipulated in each of the three bank guarantees. It was not for the bank to determine as to whether the invocation of the bank guarantees was justified so long as the invocation was in terms of the bank guarantee. A demand once made would oblige the bank to pay under the terms of the bank guarantee. The State Bank of India correctly understood its legal obligations and paid over the amount to the appellant. In this view of the matter and having regard to the terms of the bank guarantees, we are of the view that the principle of law which has been formulated by the Tribunal cannot be accepted as reflecting the correct legal position. 21. That apart, we are unable to accept the finding of the Tribunal that the respondent was kept in the dark on the invocation. It is evident that following the invocation of the bank guarantees, the respondent itself addressed a communication on 20 September 2012 to the Member Secretary of the appellant. The communication contains a specific reference to the invocation of the bank guarantees. That apart, it is evident from the material on the record that the appellant had issued a notice to show cause to the respondent to which the respondent also submitted a response. The purpose and object of the bank guarantees was to enable the appellant to secure compliance with environmental standards prescribed in accordance with law. The appellant has invoked the bank guarantees issued by the respondent because of the failure of the respondent to discharge the obligations imposed upon it by the Task Force Committee on 26 August 2011 22. For the above reasons, we are of the view that the Tribunal has erred in interfering with the invocation of the bank guarantees and in directing the appellant to refund the amount of Rs 25 lakhs covered by the three guarantees. While invoking the bank guarantees, the appellant has clearly adverted to the fact that the status of compliance was reviewed in the Task Force Committee Meeting; and that the officials of the appellant had inspected the industry and had observed certain violations. The invocation of the bank guarantees was therefore in terms of the conditions stipulated in the bank guarantees. 23. The invocation of the bank guarantees was the subject matter of the present appeal.
### Response:
1
### Explanation:
The Tribunal held that the purpose of the bank guarantee was not commercial or industrial but was to secure compliance by the appellant with environmental norms that had been prescribed. Hence, in the view of the Tribunal, the appellant should have furnished a hearing to the respondent before the bank guarantees were invoked17. We are unable to subscribe to the legal position which has been formulated by the Tribunal. A bank guarantee constitutes an independent contract between the issuing bank and the beneficiary to whom the guarantee is issued. Such a contract is independent of the underlying contract between the beneficiary and the third party at whose behest the bank guarantee is issued19. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee.20. In the present case, the bank undertook to the appellant that it would pay the guaranteed amount on demand, subject to the overall amount stipulated in each of the three bank guarantees. It was not for the bank to determine as to whether the invocation of the bank guarantees was justified so long as the invocation was in terms of the bank guarantee. A demand once made would oblige the bank to pay under the terms of the bank guarantee. The State Bank of India correctly understood its legal obligations and paid over the amount to the appellant. In this view of the matter and having regard to the terms of the bank guarantees, we are of the view that the principle of law which has been formulated by the Tribunal cannot be accepted as reflecting the correct legal position.21. That apart, we are unable to accept the finding of the Tribunal that the respondent was kept in the dark on the invocation. It is evident that following the invocation of the bank guarantees, the respondent itself addressed a communication on 20 September 2012 to the Member Secretary of the appellant. The communication contains a specific reference to the invocation of the bank guarantees. That apart, it is evident from the material on the record that the appellant had issued a notice to show cause to the respondent to which the respondent also submitted a response. The purpose and object of the bank guarantees was to enable the appellant to secure compliance with environmental standards prescribed in accordance with law. The appellant has invoked the bank guarantees issued by the respondent because of the failure of the respondent to discharge the obligations imposed upon it by the Task Force Committee on 26 August 201122. For the above reasons, we are of the view that the Tribunal has erred in interfering with the invocation of the bank guarantees and in directing the appellant to refund the amount of Rs 25 lakhs covered by the three guarantees. While invoking the bank guarantees, the appellant has clearly adverted to the fact that the status of compliance was reviewed in the Task Force Committee Meeting; and that the officials of the appellant had inspected the industry and had observed certain violations. The invocation of the bank guarantees was therefore in terms of the conditions stipulated in the bank guarantees23. The invocation of the bank guarantees was the subject matter of the present appeal.
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UCO Bank & Another Vs. Rajinder Lal Capoor | v. The Commissioner of Commercial Taxes and Ors. [JT 2008 (1) SC 496 ], this Court opined: "26. We have noticed hereinbefore that a legal fiction is created by reason of the said provision. Such a legal fiction, as is well known, should be applied only to the extent for which it was enacted. It, although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the legislature or which would lead to an anomaly or absurdity.27. The Court, while interpreting a statute, must bear in mind that the legislature was supposed to know law and the legislation enacted is a reasonable one. The Court must also bear in mind that where the application of a Parliamentary and a Legislative Act comes up for consideration; endeavours shall be made to see that provisions of both the acts are made applicable." It is now a well-settled principle of interpretation of statutes that the court must give effect to the purport and object of the Act. Rule of purposive construction should, subject of course to the applicability of the other principles of interpretation, be made applicable in a case of this nature. In New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. [JT 2008 (1) SC 31 ], this Court held: "50. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd (supra).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)52. In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli and Ors., (2007) 6 SCC 81 , this Court held:"The Parliament moreover is presumed to have enacted a reasonable statute (see Breyer, Stephen (2005): Active Liberty: Interpreting Our Democratic Constitution, Knopf (Chapter on Statutory Interpretation - pg. 99 for "Reasonable Legislator Presumption”)."53. The provisions of the Act and the Rules in this case, are, thus required to be construed in the light of the action of the State as envisaged under Article 14 of the Constitution of India. With a view to give effect thereto, the doctrine of purposive construction may have to be taken recourse to. [See 2007 (7) Scale 753 : Oriental Insurance Co. Ltd. vs. Brij Mohan and others.]" All the regulations must be given a harmonious interpretation. A Court of law should not presume a cassus omissus but if there is any, it shall not supply the same. If two or more provisions of a statute appear to carry different meanings, a construction which would give effect to all of them should be preferred. [See Gujarat Urja Vikash Nigam Ltd. v. Essar Power Ltd., 2008 (3) SCALE 469 ] 21. In terms of the 1976 Regulations drawing up of a charge sheet by the disciplinary authority is the first step for initiation of a disciplinary authority. Unless and until, therefore, a charge sheet is drawn up, a disciplinary proceedings for the purpose of the 1976 Regulations cannot be initiated.22. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a disciplinary proceedings. We have noticed in paragraph 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceedings despite the officers reaching the age of superannuation must be a statutory rule. A fortiori it must be a rule applicable to a disciplinary proceedings.23. There cannot be any doubt whatsoever that the employer may take resort to a preliminary inquiry, but it will bear repetition to state that the same has a limited role to play. But, in absence of the statutory rules operating in the field, resorting to a preliminary enquiry would not by itself be enough to hold that a departmental proceeding has been initiated.24. Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus, in absence of clear words, the court must lean in favour of an interpretation which has been applied by this Court in the main judgment. In Workmen of M/s. Firestone Tyre and Rubber Co. of India (P) Ltd. v. Management and Others [(1973) 1 SCC 813] , this Court held that Section 11-A of the Industrial Disputes Act must be interpreted in the light of the legal principles operating in the field. [See also Haryana Urban Development Authority v. Om Pal (2007) 5 SCC 742 ] | 0[ds]16. It is worth noticing the distinction between terminologies "proceeding pending" or "proceeding initiated". Clause (ii) of Sub-regulation (3) of Regulation 20 defines what would be pending, viz., for the purpose of attracting Clause (i) thereof. A disciplinary proceeding is initiated in terms of 1976 Regulations, which are applicable only in a case where a proceeding is initiated for the purpose of taking disciplinary action against a delinquent officer for the purpose of imposing a punishment on him. Disciplinary proceedings, thus, are initiated only in terms of the 1976 Regulations and not in terms of the 1979 Regulations. It is worth noticing that the 1979 Regulations would be attracted when no disciplinary proceeding is possible to be initiated. The 1976 Regulations, however, on the other hand, would be attracted when a disciplinary proceeding is initiated. Both operate in separate fields. We do not see any nexus between Regulations 20(1) and 20(2) of the 1979 Regulations and the 1976 Regulations.In terms of the 1976 Regulations drawing up of a charge sheet by the disciplinary authority is the first step for initiation of a disciplinary authority. Unless and until, therefore, a charge sheet is drawn up, a disciplinary proceedings for the purpose of the 1976 Regulations cannot be initiated.22. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a disciplinary proceedings. We have noticed in paragraph 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceedings despite the officers reaching the age of superannuation must be a statutory rule. A fortiori it must be a rule applicable to a disciplinary proceedings.23. There cannot be any doubt whatsoever that the employer may take resort to a preliminary inquiry, but it will bear repetition to state that the same has a limited role to play. But, in absence of the statutory rules operating in the field, resorting to a preliminary enquiry would not by itself be enough to hold that a departmental proceeding has been initiated.24. Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus, in absence of clear words, the court must lean in favour of an interpretation which has been applied by this Court in the main judgment. | 0 | 4,063 | 452 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
v. The Commissioner of Commercial Taxes and Ors. [JT 2008 (1) SC 496 ], this Court opined: "26. We have noticed hereinbefore that a legal fiction is created by reason of the said provision. Such a legal fiction, as is well known, should be applied only to the extent for which it was enacted. It, although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the legislature or which would lead to an anomaly or absurdity.27. The Court, while interpreting a statute, must bear in mind that the legislature was supposed to know law and the legislation enacted is a reasonable one. The Court must also bear in mind that where the application of a Parliamentary and a Legislative Act comes up for consideration; endeavours shall be made to see that provisions of both the acts are made applicable." It is now a well-settled principle of interpretation of statutes that the court must give effect to the purport and object of the Act. Rule of purposive construction should, subject of course to the applicability of the other principles of interpretation, be made applicable in a case of this nature. In New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. [JT 2008 (1) SC 31 ], this Court held: "50. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd (supra).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)52. In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli and Ors., (2007) 6 SCC 81 , this Court held:"The Parliament moreover is presumed to have enacted a reasonable statute (see Breyer, Stephen (2005): Active Liberty: Interpreting Our Democratic Constitution, Knopf (Chapter on Statutory Interpretation - pg. 99 for "Reasonable Legislator Presumption”)."53. The provisions of the Act and the Rules in this case, are, thus required to be construed in the light of the action of the State as envisaged under Article 14 of the Constitution of India. With a view to give effect thereto, the doctrine of purposive construction may have to be taken recourse to. [See 2007 (7) Scale 753 : Oriental Insurance Co. Ltd. vs. Brij Mohan and others.]" All the regulations must be given a harmonious interpretation. A Court of law should not presume a cassus omissus but if there is any, it shall not supply the same. If two or more provisions of a statute appear to carry different meanings, a construction which would give effect to all of them should be preferred. [See Gujarat Urja Vikash Nigam Ltd. v. Essar Power Ltd., 2008 (3) SCALE 469 ] 21. In terms of the 1976 Regulations drawing up of a charge sheet by the disciplinary authority is the first step for initiation of a disciplinary authority. Unless and until, therefore, a charge sheet is drawn up, a disciplinary proceedings for the purpose of the 1976 Regulations cannot be initiated.22. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a disciplinary proceedings. We have noticed in paragraph 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceedings despite the officers reaching the age of superannuation must be a statutory rule. A fortiori it must be a rule applicable to a disciplinary proceedings.23. There cannot be any doubt whatsoever that the employer may take resort to a preliminary inquiry, but it will bear repetition to state that the same has a limited role to play. But, in absence of the statutory rules operating in the field, resorting to a preliminary enquiry would not by itself be enough to hold that a departmental proceeding has been initiated.24. Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus, in absence of clear words, the court must lean in favour of an interpretation which has been applied by this Court in the main judgment. In Workmen of M/s. Firestone Tyre and Rubber Co. of India (P) Ltd. v. Management and Others [(1973) 1 SCC 813] , this Court held that Section 11-A of the Industrial Disputes Act must be interpreted in the light of the legal principles operating in the field. [See also Haryana Urban Development Authority v. Om Pal (2007) 5 SCC 742 ]
### Response:
0
### Explanation:
16. It is worth noticing the distinction between terminologies "proceeding pending" or "proceeding initiated". Clause (ii) of Sub-regulation (3) of Regulation 20 defines what would be pending, viz., for the purpose of attracting Clause (i) thereof. A disciplinary proceeding is initiated in terms of 1976 Regulations, which are applicable only in a case where a proceeding is initiated for the purpose of taking disciplinary action against a delinquent officer for the purpose of imposing a punishment on him. Disciplinary proceedings, thus, are initiated only in terms of the 1976 Regulations and not in terms of the 1979 Regulations. It is worth noticing that the 1979 Regulations would be attracted when no disciplinary proceeding is possible to be initiated. The 1976 Regulations, however, on the other hand, would be attracted when a disciplinary proceeding is initiated. Both operate in separate fields. We do not see any nexus between Regulations 20(1) and 20(2) of the 1979 Regulations and the 1976 Regulations.In terms of the 1976 Regulations drawing up of a charge sheet by the disciplinary authority is the first step for initiation of a disciplinary authority. Unless and until, therefore, a charge sheet is drawn up, a disciplinary proceedings for the purpose of the 1976 Regulations cannot be initiated.22. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a disciplinary proceedings. We have noticed in paragraph 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceedings despite the officers reaching the age of superannuation must be a statutory rule. A fortiori it must be a rule applicable to a disciplinary proceedings.23. There cannot be any doubt whatsoever that the employer may take resort to a preliminary inquiry, but it will bear repetition to state that the same has a limited role to play. But, in absence of the statutory rules operating in the field, resorting to a preliminary enquiry would not by itself be enough to hold that a departmental proceeding has been initiated.24. Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus, in absence of clear words, the court must lean in favour of an interpretation which has been applied by this Court in the main judgment.
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PUNJAB STATE POWER CORPORATION LIMITED AND ANOTHER Vs. EMTA COAL LIMITED AND OTHERS | referred to as Wednesbury unreasonableness. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680]) It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. 80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted: 4. Wednesbury principle.— A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] , per Lord Greene, M.R.) 81. Two other facets of irrationality may be mentioned. (1) It is open to the court to review the decision-makers evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment [(1980) 41 P & CR 255] , the Secretary of State referred to a number of factors which led him to the conclusion that a non-residents bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion. (2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson [(1989) 88 LGR 73] the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authoritys parks was struck down. 31. It could thus be seen that while exercising powers of judicial review, the Court is not concerned with the ultimate decision but the decision-making process. The limited areas in which the court can enquire are as to whether a decision- making authority has exceeded its powers, committed an error of law or committed breach of principle of natural justice. It can examine as to whether an authority has reached a decision which no reasonable Tribunal would have reached or has abused its powers. It is not for the court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair. The court will examine as to whether the decision of an authority is vitiated by illegality, irrationality or procedural impropriety. While examining the question of irrationality, the court will be guided by the principle of Wednesbury. While applying the Wednesbury principle, the court will examine as to whether the decision of an authority is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. 32. Applying the aforesaid principle, it can clearly be seen that the decision of PSPCL dated 6th April 2018, cannot be questioned on the ground of illegality or procedural impropriety. The decision is taken in accordance with Section 11 of the said Act and after following the principle of Natural Justice. The limited area that would be available for attack is as to whether the decision is hit by the Wednesbury principle. Can it be said that the decision taken by the authority is such that no reasonable person would have taken it? No doubt, that the authority has also relied on Clause 12.4.1 of the Allotment Agreement, however, that is not the only ground on which the representation of EMTA is rejected. No doubt, that while considering EMTAs representation, PSPCL has referred to Clause 12.4.1 of the Allotment Agreement which requires the coal mines to be developed through contractors who were selected through a competitive bidding process, however, that is not the only ground on which the representation of EMTA is rejected. It will be relevant to refer to the following observations in the order passed by PSPCL dated 6th April 2018:- Moreover, there is no reason why competitive bidding process for the purposes of eliciting the best operator be not preferred. Needless to mention that as the composition with respect to capital/revenue investment is altogether different, hence the bidding parameters have entirely changed. 33. It could thus be seen that PSPCL has decided to go in for competitive bidding process for the purpose of eliciting the best operator. It has further noticed that the composition with respect to capital/revenue investment is altogether different. Hence, the bidding parameters have entirely changed. It has further referred to the decision of this Court wherein it has been held that the allotment should be through competitive bidding process. We ask a question to ourselves, as to whether the said reasoning can be said to be irrational or arbitrary. A policy decision to get the best operator at the best price, cannot be said to be a decision which no reasonable person would take in his affairs. In that view of the matter, the attack on the order/letter dated 6th April 2018, is without merit. 34. Insofar as the contention of Shri Rohatgi with regard to the huge investment being made by EMTA is concerned, the said Act itself provides remedy for seeking compensation apart from the other remedies that are available in law. In that view of the matter, we are not impressed with the arguments advanced in that behalf. | 1[ds]Though there are various authorities on the said subject, we do not wish to burden the present judgment by reproducing those. In our considered view, if the words used in Section 11 of the said Act are construed in plain and literal term, they do not lead to an absurdity and as such, the rule of plain and literal interpretation will have to be followed. We find that in case the interpretation as sought to be placed by Shri Rohatgi is to be accepted, it will do complete violence to the language of Section 11 of the said Act. If it is held that under Section 11 of the said Act, a prior contractor is entitled to continue if his performance is found to be satisfactory and if there is nothing against him, then it will be providing something in Section 11 of the said Act which the Statute has not provided for. It will also lead to making the words may elect, to adopt and continue redundant and otiose. It is a settled principle of law that when, upon a plain and literal interpretation of the words used in a Statute, the legislative intent could be gathered, it is not permissible to add words to the Statute. Equally, such an interpretation which would make some terms used in a Statute otiose or meaningless, has to be avoided. We therefore find that if an interpretation as sought to be placed by EMTA is to be accepted, the same would be wholly contrary to the principle of literal interpretation. There are number of authorities in support of the said proposition. However, we refrain from referring to them in view of the following observations made by this Court in a recent judgment in the case of Ajit Mohan and Others v. Legislative Assembly National Capital Territory of Delhi and Others 2021 SCC OnLine SC 456:-239. …..In our view if the proposition of law is not doubted by the Court, it does not need a precedent unless asked for. If a question is raised about a legal proposition, the judgment must be relatable to that proposition - and not multiple judgments…..As such, the contention in that regard is found to be without merit.23. We find that the High Court has also clearly understood the said legal position with regard to language used in Section 11 of the said Act. When considering Section 62 of the Contract Act, 1872 read with Section 11 of the said Act, it has observed that the parties to a contract may willingly agree to substitute a new contract or to rescind it or alter it. Having observed this, the High Court has, however, erred in observing that EMTA had a legitimate expectation. The High Court has observed thus:-It could not therefore, have been left in the lurch particularly when the same mine was re-allocated to the Corporation suggestive of continuity. Indeed, the respondents were very well within their rights to reject the arrangement while granting a consideration under Section 11 if the performance of the petitioner was unsatisfactory or if there was any other factor which the Corporation found relevant enough to discard the arrangement altogether.24. We find that the reasoning adopted by the High Court is totally wrong. Merely because the Coal Mine Block was allotted to PSPCL, the same could not give any vested right in favour of EMTA, particularly in view of the language used in Section 11 of the said Act. The reasoning given by the High Court that PSPCL was within its right to reject the arrangement if the performance of EMTA was unsatisfactory or if there was any other factor which the Corporation found relevant enough to discard the arrangement altogether, in our view, are totally erroneous.25. Having observed in earlier para that in view of Section 11 of the said Act read with Section 62 of the Contract Act, 1872, the parties to a contract may willingly agree to substitute a new contract or to rescind it or alter it, the High Court has erred in forcing PSPCL to continue with the contract with EMTA, though it was not willing to do so.26. The issue with regard to legitimate expectation has been recently considered by a bench of this Court to which one of us (L. Nageswara Rao, J.) was a member. After considering various authorities on the issue, in the case of Kerala State Beverages (M and M) Corporation Limtied (supra), it was observed thus:-20. The decision-makers freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation. [Findlay, In re, 1985 AC 318 : (1984) 3 WLR 1159 : (1984) 3 All ER 801 (HL)] So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated.We do not desire to go into the issue of correctness of either of the judgments inasmuch as we are independently considering the issue and examining the correctness of the judgment impugned before us.28. Insofar as the reliance placed by Shri Rohatgi on the letter of Union of India dated 9th January 2020 is concerned, there can be no doubt that between Section 11 of the said Act and Clause 12.4.1 of the Allotment Agreement, Section 11 of the said Act would prevail. The question is, whether, Section 11 of the said Act mandates the successful allottee to continue with the existing contract. The answer, obviously, is no. In any case, the claim of EMTA is not rejected by PSPCL solely on the ground of Clause 12.4.1 of the Allotment Agreement.30. The order passed by PSPCL dated 6th April 2018, is an order passed by an authority of the State in exercise of its executive functions. The scope of judicial review of administrative action has been well crystalised by this Court in the judgment of Tata Cellular v. Union of India (1994) 6 SCC 651 . The judgment in the case of Tata Cellular (supra), has been subsequently followed in a number of judgments of this Court. This Court in the case of Rashmi Metaliks Limited and Another v. Kolkata Metropolitan Development Authority and Others (2013) 10 SCC 95 , has observed that the decision which holds the field with regard to issue of judicial review of an administrative action, is the judgment in the case of Tata Cellular (supra), by a three-Judge Bench. The Court has held that the rule of precedent mandates that this exposition of law be followed and applied by coordinate or co-equal Benches and certainly by all smaller Benches and subordinate courts. This Court has further deprecated the practice of referring to catena of judgments following the said pronouncement of law. We therefore refrain from referring to the subsequent judgment, and reproduce the relevant observations in Tata Cellular (supra), which read thus:-70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review.72. Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment [1986 AC 240, 251 : (1986) 1 All ER 199] proclaimed:Judicial review is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power.Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say:If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3- 1991.73. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the courts ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.75. In Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141, 154] Lord Brightman said:Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Ord. 53 in the following terms:This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi- judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner (p. 1160).In R. v. Panel on Take-overs and Mergers, ex p Datafin plc [(1987) 1 All ER 564] , Sir John Donaldson, M.R. commented:An application for judicial review is not an appeal.In Lonrho plc v. Secretary of State for Trade and Industry [(1989) 2 All ER 609], Lord Keith said:Judicial review is a protection and not a weapon.It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In Amin, Re [Amin v. Entry Clearance Officer, (1983) 2 All ER 864] , Lord Fraser observed that:Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made…. Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.76. In R. v. Panel on Take-overs and Mergers, ex p in Guinness plc [(1990) 1 QB 146 : (1989) 1 All ER 509], Lord Donaldson, M.R. referred to the judicial review jurisdiction as being supervisory or longstop jurisdiction. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing the abuse of power, be itself guilty of usurping power.77. The duty of the court is to confine itself to the question of legality. Its concern should be:1. Whether a decision-making authority exceeded its powers?2. Committed an error of law,3. committed a breach of the rules of natural justice,4. reached a decision which no reasonable tribunal would have reached or,5. abused its powers.Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.(ii) Irrationality, namely, Wednesbury unreasonableness.(iii) Procedural impropriety.The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, consider whether something has gone wrong of a nature and degree which requires its intervention.78. What is this charming principle of Wednesbury unreasonableness? Is it a magical formula? In R. v. Askew [(1768) 4 Burr 2186 : 98 ER 139] , Lord Mansfield considered the question whether mandamus should be granted against the College of Physicians. He expressed the relevant principles in two eloquent sentences. They gained greater value two centuries later:It is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practise this profession is trusted to the College of Physicians and this Court will not take it from them, nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biased; much less, warped by resentment, or personal dislike.79. To quote again, Michael Supperstone and James Goudie; in their work Judicial Review (1992 Edn.) it is observed at pp. 119 to 121 as under:The assertion of a claim to examine the reasonableness been done by a public authority inevitably led to differences of judicial opinion as to the circumstances in which the court should intervene. These differences of opinion were resolved in two landmark cases which confined the circumstances for intervention to narrow limits. In Kruse v. Johnson [(1898) 2 QB 91 : (1895-9) All ER Rep 105] a specially constituted divisional court had to consider the validity of a bye-law made by a local authority. In the leading judgment of Lord Russell of Killowen, C.J., the approach to be adopted by the court was set out. Such bye- laws ought to be benevolently interpreted, and credit ought to be given to those who have to administer them that they would be reasonably administered. They could be held invalid if unreasonable : Where for instance bye-laws were found to be partial and unequal in their operation as between different classes, if they were manifestly unjust, if they disclosed bad faith, or if they involved such oppressive or gratuitous interference with the rights of citizens as could find no justification in the minds of reasonable men. Lord Russell emphasised that a bye-law is not unreasonable just because particular judges might think it went further than was prudent or necessary or convenient.In 1947 the Court of Appeal confirmed a similar approach for the review of executive discretion generally in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn [(1948) 1 KB 223 : (1947) 2 All ER 680] . This case was concerned with a complaint by the owners of a cinema in Wednesbury that it was unreasonable of the local authority to licence performances on Sunday only subject to a condition that no children under the age of 15 years shall be admitted to any entertainment whether accompanied by an adult or not. In an extempore judgment, Lord Greene, M.R. drew attention to the fact that the word unreasonable had often been used in a sense which comprehended different grounds of review. (At p. 229, where it was said that the dismissal of a teacher for having red hair (cited by Warrington, L.J. in Short v. Poole Corpn. [(1926) 1 Ch 66, 91 : 1925 All ER Rep 74] , as an example of a frivolous and foolish reason) was, in another sense, taking into consideration extraneous matters, and might be so unreasonable that it could almost be described as being done in bad faith; see also R. v. Tower Hamlets London Borough Council, ex p Chetnik Developments Ltd. [1988 AC 858, 873 : (1988) 2 WLR 654 : (1988) 1 All ER 961] (Chapter 4, p. 73, supra). He summarised the principles as follows:The Court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take into account or neglected to take into account matter which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority has contravened the law by acting in excess of the power which Parliament has confided in them.This summary by Lord Greene has been applied in countless subsequent cases.The modern statement of the principle is found in a passage in the speech of Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service [(1985) 1 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174] :By irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680]) It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at.80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted:4. Wednesbury principle.— A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] , per Lord Greene, M.R.)81. Two other facets of irrationality may be mentioned.(1) It is open to the court to review the decision-makers evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment [(1980) 41 P & CR 255] , the Secretary of State referred to a number of factors which led him to the conclusion that a non-residents bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion.(2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson [(1989) 88 LGR 73] the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authoritys parks was struck down.31. It could thus be seen that while exercising powers of judicial review, the Court is not concerned with the ultimate decision but the decision-making process. The limited areas in which the court can enquire are as to whether a decision- making authority has exceeded its powers, committed an error of law or committed breach of principle of natural justice. It can examine as to whether an authority has reached a decision which no reasonable Tribunal would have reached or has abused its powers. It is not for the court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair. The court will examine as to whether the decision of an authority is vitiated by illegality, irrationality or procedural impropriety. While examining the question of irrationality, the court will be guided by the principle of Wednesbury. While applying the Wednesbury principle, the court will examine as to whether the decision of an authority is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.32. Applying the aforesaid principle, it can clearly be seen that the decision of PSPCL dated 6th April 2018, cannot be questioned on the ground of illegality or procedural impropriety. The decision is taken in accordance with Section 11 of the said Act and after following the principle of Natural Justice. The limited area that would be available for attack is as to whether the decision is hit by the Wednesbury principle. Can it be said that the decision taken by the authority is such that no reasonable person would have taken it? No doubt, that the authority has also relied on Clause 12.4.1 of the Allotment Agreement, however, that is not the only ground on which the representation of EMTA is rejected. No doubt, that while considering EMTAs representation, PSPCL has referred to Clause 12.4.1 of the Allotment Agreement which requires the coal mines to be developed through contractors who were selected through a competitive bidding process, however, that is not the only ground on which the representation of EMTA is rejected.33. It could thus be seen that PSPCL has decided to go in for competitive bidding process for the purpose of eliciting the best operator. It has further noticed that the composition with respect to capital/revenue investment is altogether different. Hence, the bidding parameters have entirely changed. It has further referred to the decision of this Court wherein it has been held that the allotment should be through competitive bidding process. We ask a question to ourselves, as to whether the said reasoning can be said to be irrational or arbitrary. A policy decision to get the best operator at the best price, cannot be said to be a decision which no reasonable person would take in his affairs. In that view of the matter, the attack on the order/letter dated 6th April 2018, is without merit.34. Insofar as the contention of Shri Rohatgi with regard to the huge investment being made by EMTA is concerned, the said Act itself provides remedy for seeking compensation apart from the other remedies that are available in law. In that view of the matter, we are not impressed with the arguments advanced in that behalf. | 1 | 8,463 | 4,630 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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referred to as Wednesbury unreasonableness. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680]) It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. 80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted: 4. Wednesbury principle.— A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] , per Lord Greene, M.R.) 81. Two other facets of irrationality may be mentioned. (1) It is open to the court to review the decision-makers evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment [(1980) 41 P & CR 255] , the Secretary of State referred to a number of factors which led him to the conclusion that a non-residents bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion. (2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson [(1989) 88 LGR 73] the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authoritys parks was struck down. 31. It could thus be seen that while exercising powers of judicial review, the Court is not concerned with the ultimate decision but the decision-making process. The limited areas in which the court can enquire are as to whether a decision- making authority has exceeded its powers, committed an error of law or committed breach of principle of natural justice. It can examine as to whether an authority has reached a decision which no reasonable Tribunal would have reached or has abused its powers. It is not for the court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair. The court will examine as to whether the decision of an authority is vitiated by illegality, irrationality or procedural impropriety. While examining the question of irrationality, the court will be guided by the principle of Wednesbury. While applying the Wednesbury principle, the court will examine as to whether the decision of an authority is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. 32. Applying the aforesaid principle, it can clearly be seen that the decision of PSPCL dated 6th April 2018, cannot be questioned on the ground of illegality or procedural impropriety. The decision is taken in accordance with Section 11 of the said Act and after following the principle of Natural Justice. The limited area that would be available for attack is as to whether the decision is hit by the Wednesbury principle. Can it be said that the decision taken by the authority is such that no reasonable person would have taken it? No doubt, that the authority has also relied on Clause 12.4.1 of the Allotment Agreement, however, that is not the only ground on which the representation of EMTA is rejected. No doubt, that while considering EMTAs representation, PSPCL has referred to Clause 12.4.1 of the Allotment Agreement which requires the coal mines to be developed through contractors who were selected through a competitive bidding process, however, that is not the only ground on which the representation of EMTA is rejected. It will be relevant to refer to the following observations in the order passed by PSPCL dated 6th April 2018:- Moreover, there is no reason why competitive bidding process for the purposes of eliciting the best operator be not preferred. Needless to mention that as the composition with respect to capital/revenue investment is altogether different, hence the bidding parameters have entirely changed. 33. It could thus be seen that PSPCL has decided to go in for competitive bidding process for the purpose of eliciting the best operator. It has further noticed that the composition with respect to capital/revenue investment is altogether different. Hence, the bidding parameters have entirely changed. It has further referred to the decision of this Court wherein it has been held that the allotment should be through competitive bidding process. We ask a question to ourselves, as to whether the said reasoning can be said to be irrational or arbitrary. A policy decision to get the best operator at the best price, cannot be said to be a decision which no reasonable person would take in his affairs. In that view of the matter, the attack on the order/letter dated 6th April 2018, is without merit. 34. Insofar as the contention of Shri Rohatgi with regard to the huge investment being made by EMTA is concerned, the said Act itself provides remedy for seeking compensation apart from the other remedies that are available in law. In that view of the matter, we are not impressed with the arguments advanced in that behalf.
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of the power which Parliament has confided in them.This summary by Lord Greene has been applied in countless subsequent cases.The modern statement of the principle is found in a passage in the speech of Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service [(1985) 1 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174] :By irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680]) It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at.80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted:4. Wednesbury principle.— A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] , per Lord Greene, M.R.)81. Two other facets of irrationality may be mentioned.(1) It is open to the court to review the decision-makers evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment [(1980) 41 P & CR 255] , the Secretary of State referred to a number of factors which led him to the conclusion that a non-residents bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion.(2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson [(1989) 88 LGR 73] the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authoritys parks was struck down.31. It could thus be seen that while exercising powers of judicial review, the Court is not concerned with the ultimate decision but the decision-making process. The limited areas in which the court can enquire are as to whether a decision- making authority has exceeded its powers, committed an error of law or committed breach of principle of natural justice. It can examine as to whether an authority has reached a decision which no reasonable Tribunal would have reached or has abused its powers. It is not for the court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair. The court will examine as to whether the decision of an authority is vitiated by illegality, irrationality or procedural impropriety. While examining the question of irrationality, the court will be guided by the principle of Wednesbury. While applying the Wednesbury principle, the court will examine as to whether the decision of an authority is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.32. Applying the aforesaid principle, it can clearly be seen that the decision of PSPCL dated 6th April 2018, cannot be questioned on the ground of illegality or procedural impropriety. The decision is taken in accordance with Section 11 of the said Act and after following the principle of Natural Justice. The limited area that would be available for attack is as to whether the decision is hit by the Wednesbury principle. Can it be said that the decision taken by the authority is such that no reasonable person would have taken it? No doubt, that the authority has also relied on Clause 12.4.1 of the Allotment Agreement, however, that is not the only ground on which the representation of EMTA is rejected. No doubt, that while considering EMTAs representation, PSPCL has referred to Clause 12.4.1 of the Allotment Agreement which requires the coal mines to be developed through contractors who were selected through a competitive bidding process, however, that is not the only ground on which the representation of EMTA is rejected.33. It could thus be seen that PSPCL has decided to go in for competitive bidding process for the purpose of eliciting the best operator. It has further noticed that the composition with respect to capital/revenue investment is altogether different. Hence, the bidding parameters have entirely changed. It has further referred to the decision of this Court wherein it has been held that the allotment should be through competitive bidding process. We ask a question to ourselves, as to whether the said reasoning can be said to be irrational or arbitrary. A policy decision to get the best operator at the best price, cannot be said to be a decision which no reasonable person would take in his affairs. In that view of the matter, the attack on the order/letter dated 6th April 2018, is without merit.34. Insofar as the contention of Shri Rohatgi with regard to the huge investment being made by EMTA is concerned, the said Act itself provides remedy for seeking compensation apart from the other remedies that are available in law. In that view of the matter, we are not impressed with the arguments advanced in that behalf.
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NARAYANA PRASAD SAHU Vs. THE STATE OF MADHYA PRADESH | the prosecution adopted one of the two permissible modes of sending the report by registered post to the appellantaccused. He submitted that endorsements on the postal packet containing the report showed that after giving an intimation to the appellant, the Postman unsuccessfully attempted to serve the report to the appellant on six occasions and only thereafter, returned the envelope. He submitted that a presumption of service of the report has been rightly drawn by the High Court. He would, therefore, submit that no interference is called for. 5. We have carefully considered the submissions. Sub-sections (1) and (2) of Section 13 of the said Act of 1954 reads thus:- 13. Report of public analyst.—(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. Under sub-section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of sub-section (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample analysed by Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the article of food was taken. Apart from the right of the accused to contend that the report is not correct, he has right to exercise an option of sending the sample to Central Food Laboratory for analysis by making an application to the Court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the accused, his right under sub-section (2) of Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated. Consequently, his right to challenge the report will be defeated. His right to defend himself will be adversely affected. This Court in the case of Vijendra (supra) held that mere dispatch of the report to the accused is not a sufficient compliance with the requirement of subsection (2) of Section 13 and the report must be served on the accused. 6. Perusal of the judgments of the learned Magistrate and Sessions Court show that the clerk who dispatched the report was examined by the prosecution. Though the prosecution has relied upon the remarks made by the Postman on the postal envelope, the Postman who has allegedly made the said remarks was admittedly not examined by the prosecution. 7. Rule 9B of the said Rules reads thus:- 9B. Local (Health) authority to send report to person concerned--The Local (Health) Authority shall [within a period of ten days] after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the food inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under section 14A of the Act: Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action is intended under sub-section (2E) of section 13 of the Act, the Local (Health) Authority shall intimate the result to the Vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst. More than one mode was prescribed by Rule 9B for serving the report of Public Analyst on the accused. In the present case, after the postal packet was returned, not even an attempt was made to personally serve the report on the appellant. 8. On the basis of endorsements of the Postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover, the High Court has glossed over the mandatory requirement under subsection (2) of Section 13 of serving a copy of the report on the accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the appellant cannot be sustained. | 1[ds]This Court in the case of Vijendra (supra) held that mere dispatch of the report to the accused is not a sufficient compliance with the requirement of subsection (2) of Section 13 and the report must be served on the accused.6. Perusal of the judgments of the learned Magistrate and Sessions Court show that the clerk who dispatched the report was examined by the prosecution. Though the prosecution has relied upon the remarks made by the Postman on the postal envelope, the Postman who has allegedly made the said remarks was admittedly not examined by the prosecution.More than one mode was prescribed by Rule 9B for serving the report of Public Analyst on the accused. In the present case, after the postal packet was returned, not even an attempt was made to personally serve the report on the appellant.8. On the basis of endorsements of the Postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover, the High Court has glossed over the mandatory requirement under subsection (2) of Section 13 of serving a copy of the report on the accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the appellant cannot be sustained. | 1 | 1,694 | 287 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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the prosecution adopted one of the two permissible modes of sending the report by registered post to the appellantaccused. He submitted that endorsements on the postal packet containing the report showed that after giving an intimation to the appellant, the Postman unsuccessfully attempted to serve the report to the appellant on six occasions and only thereafter, returned the envelope. He submitted that a presumption of service of the report has been rightly drawn by the High Court. He would, therefore, submit that no interference is called for. 5. We have carefully considered the submissions. Sub-sections (1) and (2) of Section 13 of the said Act of 1954 reads thus:- 13. Report of public analyst.—(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. Under sub-section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of sub-section (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample analysed by Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the article of food was taken. Apart from the right of the accused to contend that the report is not correct, he has right to exercise an option of sending the sample to Central Food Laboratory for analysis by making an application to the Court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the accused, his right under sub-section (2) of Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated. Consequently, his right to challenge the report will be defeated. His right to defend himself will be adversely affected. This Court in the case of Vijendra (supra) held that mere dispatch of the report to the accused is not a sufficient compliance with the requirement of subsection (2) of Section 13 and the report must be served on the accused. 6. Perusal of the judgments of the learned Magistrate and Sessions Court show that the clerk who dispatched the report was examined by the prosecution. Though the prosecution has relied upon the remarks made by the Postman on the postal envelope, the Postman who has allegedly made the said remarks was admittedly not examined by the prosecution. 7. Rule 9B of the said Rules reads thus:- 9B. Local (Health) authority to send report to person concerned--The Local (Health) Authority shall [within a period of ten days] after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the food inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under section 14A of the Act: Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action is intended under sub-section (2E) of section 13 of the Act, the Local (Health) Authority shall intimate the result to the Vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst. More than one mode was prescribed by Rule 9B for serving the report of Public Analyst on the accused. In the present case, after the postal packet was returned, not even an attempt was made to personally serve the report on the appellant. 8. On the basis of endorsements of the Postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover, the High Court has glossed over the mandatory requirement under subsection (2) of Section 13 of serving a copy of the report on the accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the appellant cannot be sustained.
### Response:
1
### Explanation:
This Court in the case of Vijendra (supra) held that mere dispatch of the report to the accused is not a sufficient compliance with the requirement of subsection (2) of Section 13 and the report must be served on the accused.6. Perusal of the judgments of the learned Magistrate and Sessions Court show that the clerk who dispatched the report was examined by the prosecution. Though the prosecution has relied upon the remarks made by the Postman on the postal envelope, the Postman who has allegedly made the said remarks was admittedly not examined by the prosecution.More than one mode was prescribed by Rule 9B for serving the report of Public Analyst on the accused. In the present case, after the postal packet was returned, not even an attempt was made to personally serve the report on the appellant.8. On the basis of endorsements of the Postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover, the High Court has glossed over the mandatory requirement under subsection (2) of Section 13 of serving a copy of the report on the accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the appellant cannot be sustained.
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State Of Haryana Vs. M/S S.L.Arora & Company | the date of award and future interest thereupon which do not amount to award of interest on interest as interest awarded on the principal amount upto the date of award became the principal amount which is permissible in law." [emphasis supplied] But a careful reading of the decision in Mcdermott, shows that the portion of Mcdermott extracted in Three Circles, assuming it to be the law laid down in Mcdermott, is not a finding or conclusion of this court, nor the ratio decidendi of the case, but is only a reference to the contention of the respondent in Mcdermott. Paras 1 to 27 (of the SCC report) in Mcdermott state the factual background. Paras 28 and 29 contain the submissions of the learned counsel for BSCL, The respondent therein. Paras 30 to 44 contain the submissions made by the learned counsel for Mcdermott, the appellant therein, in reply to the submissions made on behalf of BSCL. The passage that is extracted in Three Circles is part of para 44 of the decision which contains the last submission of the learned counsel for Mcdermott on the question of interest. The reasoning in the decision starts from para 45. This Court considered the several questions seriatum in paras 45 to 160. The question relating to interest was considered in paras 154 to 159 relevant portions of which we have extracted above. Therefore, the observation in Three Circles that Mcdermott held that interest awarded on the principal amount upto the date of award becomes the principal amount and therefore award of future interest therein does not amount to award of interest on interest, is per incuriam due to an inadvertent erroneous assumption. Re : Question (ii) 22. The operative portion of an arbitral award dealing with several claims on which separate decisions have been recorded, is really an abstract of the decisions/awards on eah of the claims. Therefore, the findings/award reached by the Arbitrator on claim No. (8) relating to interest, have to be read with the operative portion to know what is directed by the award. We therefore extract below the reasoning, finding and award on claim No.(8) relating to interest: "Claim 8 : Payment of account of interest at the rate of 30% per annum with effect from 18.8.1990 till final payment. The claimant has claimed interest @30% per annum with effect from 18.8.1990 till final payment of Award. Keeping in view the reasonability of the claim, I allow interest @12% per annum on the total amount of Award i.e. on Rs. 14.94 lacs with effect from 19.12.1990 (date of first reference of Arbitrator) upto the date of making this award. In case the total amount of award together with this interest is not paid within 30 days from the date of making this award, future interest shall be paid @ 18% per annum on the entire Award from the date of Award upto the actual date of payment". The above portion of the award when read with the operative portion of the award shows that the words entire award used in the para dealing interest and the words sums due used in the operative portion of the award refer to the total amount of award referred to earlier in the said two portions relating to interest. 23. The Arbitrator allowed interest at the rate 12% per annum on the total amount of the award, that is Rs. 14,94,000/-, with effect from 19.12.1990 up to the date of the Award. He further directed that in case the "total amount of the award together with this interest" is not paid within 30 days from the date of making the award, future interest shall be paid at the rate 18% per annum on the entire Award from the date of Award upto the actual date of payment. The words "total amount of the Award together with interest" makes it clear that the Arbitrator has used the words "total amount of the Award" as referring to the total or aggregate of the awards on the substantive claims of the contractor (claims 1 to 7) excluding the ancillary claims (claim No. 8) relating to interest. The Arbitrator has also used the words "entire award" and "sums due" synonymous with the words "total amount of the award". Therefore, when the operative portion states that future interest is awarded on the "sums due", it refers to the "total amount of the award", that is total of the amounts awarded on substantive claims (that is claims (1) to (7) of the contractor) excluding the claim relating interest. Therefore, what was awarded by the Arbitrator was future interest at the rate of 18% per annum on the amounts awarded on various claims (that is Claim No. 1 to 7) in all aggregating to Rs. 14,94,000/- and not upon the interest awarded thereon upto to date of the award. It should be noted that the difference in the interest awarded for the pre-award period and post-award period, is only with reference to the rate of interest and not the quantum of principal (that bears interest). Conclusion 24. Thus it is clear that section 31(7) merely authorizes the arbitral tribunal to award interest in accordance with the contract and in the absence of any prohibition in the contract and in the absence of specific provision relating to interest in the contract, to award simple interest at such rates as it deems fit from the date on which the cause of action arose till the date of payment. It also provides that if the award is silent about interest from the date of award till date of payment, the person in whose favour the award is made will be entitled to interest at 18% per annum on the principal amount awarded, from the date of award till date of payment. The calculation that was made in the execution petition as originally filed was correct and the modification by the respondent increasing the amount due under the award was contrary to the Award. | 1[ds]24. Thus it is clear that section 31(7) merely authorizes the arbitral tribunal to award interest in accordance with the contract and in the absence of any prohibition in the contract and in the absence of specific provision relating to interest in the contract, to award simple interest at such rates as it deems fit from the date on which the cause of action arose till the date of payment. It also provides that if the award is silent about interest from the date of award till date of payment, the person in whose favour the award is made will be entitled to interest at 18% per annum on the principal amount awarded, from the date of award till date of payment. The calculation that was made in the execution petition as originally filed was correct and the modification by the respondent increasing the amount due under the award was contrary to the Award15. There is a tendency among contractors to elevate the claims for interest and costs to the level of substantive disputes by describing them as separate and independent heads of claim. The long pendency of arbitration matters either due to prolonged arbitration proceedings or due to litigations (both intervening and, has the unfortunate effect of swelling the interest payable on the amount awarded and costs to very substantial amounts. In many arbitral awards for money, the interest awarded often exceeds the amount awarded, by several times. Leisurely arbitrations, avoidable judicial interventions, and indecisiveness on the part of decision makers in government and statutory bodies in accepting and settling genuine claims either at the stage when the claim is made or at least at the stage when the award is made have resulted in undue emphasis and importance being bestowed upon interest and costs. However substantial their quantum may be in a given case, interest, in particular interest from the date of the award, and costs are ancillary issues and are not substantive disputesIn a nutshell, in regard tod period, interest has to be awarded as specified in the contract and in the absence of contract as per discretion of the Arbitral Tribunal. On the other hand, in regard to thed period, interest is payable as per the discretion of the Arbitral Tribunal and in the absence of exercise of such discretion, at a mandatory statutory rate of 18% per annum19. We will next deal with the three cases relied upon by the learned counsel for the respondent to contend that this Court has recognized and accepted the power of the arbitral tribunals to award interest upon interest: Oil & Natural Gas Commission v. M.C. Clelland Engineers S.A.(1999) (4) SCC 327 , Mcdermott International Inc. vs. Burn Standard Co. Ltd. and Others(2006) 11 SCC 181 , and Uttar Pradesh Cooperative Federation Limited vs. Three Circles(2009) 10 SCC 374. But out of these three decisions only the decision in Mcdermott relates to an award under the Arbitration and Conciliation Act, 1996. The other two decisions relate to awards under the old Act (Arbitration Act, 1940) and are of no assistance in interpreting section 31(7) of the new Act20. In Mcdermott, paras 154 to 159 of the judgment deal with the issue of interest. Relevant portions thereof are extracted below in entirety:"The power of the arbitrator to award interest ford period, interest pendent lite and interestd period is not in dispute. Section 31(7)(a) provides that the arbitral tribunal may award interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which award is made, i.e.,d period. This, however, is subject to the agreement as regard the rate of interest on unpaid sum between the parties. The question as to whether interest would be paid on the whole or part of the amount or whether it should be awarded in thed period would depend upon the facts and circumstances of each case. The arbitral tribunal in this behalf will have to exercise its discretion as regards (i) at what rate interest should be awarded; (ii) whether interest should be awarded on whole or part of the award money; and (iii) whether interest should be awarded for whole or any part of the"The 1996 Act provides for award of 18% interest. The arbitrator in his wisdom has granted 10% interest both for the principal amount as also for the interim. By reason of the award, interest was awarded on the principal Amount. An interest thereon was upto the date of award as also the future interest at the rate of 18% per annumHowever, in some cases, this court was resorted to exercise its jurisdiction under Article 142 in order to do complete justice between the parties..........In this case, given the long lapse of time, it will be in furtherance of justice to reduce the rate of interest to 7 1/2%."A careful reading of the same shows that there is no reference to awarding of compound interest or interest from the date of the award on the interest that had accrued due up to the date of award. The decision dealt with the rate of interest and exercise of jurisdiction under Article 142 of the Constitution to set right anomalies in regard to rate of interest. The said decision is therefore, of no assistance | 1 | 6,463 | 1,015 | ### 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:
the date of award and future interest thereupon which do not amount to award of interest on interest as interest awarded on the principal amount upto the date of award became the principal amount which is permissible in law." [emphasis supplied] But a careful reading of the decision in Mcdermott, shows that the portion of Mcdermott extracted in Three Circles, assuming it to be the law laid down in Mcdermott, is not a finding or conclusion of this court, nor the ratio decidendi of the case, but is only a reference to the contention of the respondent in Mcdermott. Paras 1 to 27 (of the SCC report) in Mcdermott state the factual background. Paras 28 and 29 contain the submissions of the learned counsel for BSCL, The respondent therein. Paras 30 to 44 contain the submissions made by the learned counsel for Mcdermott, the appellant therein, in reply to the submissions made on behalf of BSCL. The passage that is extracted in Three Circles is part of para 44 of the decision which contains the last submission of the learned counsel for Mcdermott on the question of interest. The reasoning in the decision starts from para 45. This Court considered the several questions seriatum in paras 45 to 160. The question relating to interest was considered in paras 154 to 159 relevant portions of which we have extracted above. Therefore, the observation in Three Circles that Mcdermott held that interest awarded on the principal amount upto the date of award becomes the principal amount and therefore award of future interest therein does not amount to award of interest on interest, is per incuriam due to an inadvertent erroneous assumption. Re : Question (ii) 22. The operative portion of an arbitral award dealing with several claims on which separate decisions have been recorded, is really an abstract of the decisions/awards on eah of the claims. Therefore, the findings/award reached by the Arbitrator on claim No. (8) relating to interest, have to be read with the operative portion to know what is directed by the award. We therefore extract below the reasoning, finding and award on claim No.(8) relating to interest: "Claim 8 : Payment of account of interest at the rate of 30% per annum with effect from 18.8.1990 till final payment. The claimant has claimed interest @30% per annum with effect from 18.8.1990 till final payment of Award. Keeping in view the reasonability of the claim, I allow interest @12% per annum on the total amount of Award i.e. on Rs. 14.94 lacs with effect from 19.12.1990 (date of first reference of Arbitrator) upto the date of making this award. In case the total amount of award together with this interest is not paid within 30 days from the date of making this award, future interest shall be paid @ 18% per annum on the entire Award from the date of Award upto the actual date of payment". The above portion of the award when read with the operative portion of the award shows that the words entire award used in the para dealing interest and the words sums due used in the operative portion of the award refer to the total amount of award referred to earlier in the said two portions relating to interest. 23. The Arbitrator allowed interest at the rate 12% per annum on the total amount of the award, that is Rs. 14,94,000/-, with effect from 19.12.1990 up to the date of the Award. He further directed that in case the "total amount of the award together with this interest" is not paid within 30 days from the date of making the award, future interest shall be paid at the rate 18% per annum on the entire Award from the date of Award upto the actual date of payment. The words "total amount of the Award together with interest" makes it clear that the Arbitrator has used the words "total amount of the Award" as referring to the total or aggregate of the awards on the substantive claims of the contractor (claims 1 to 7) excluding the ancillary claims (claim No. 8) relating to interest. The Arbitrator has also used the words "entire award" and "sums due" synonymous with the words "total amount of the award". Therefore, when the operative portion states that future interest is awarded on the "sums due", it refers to the "total amount of the award", that is total of the amounts awarded on substantive claims (that is claims (1) to (7) of the contractor) excluding the claim relating interest. Therefore, what was awarded by the Arbitrator was future interest at the rate of 18% per annum on the amounts awarded on various claims (that is Claim No. 1 to 7) in all aggregating to Rs. 14,94,000/- and not upon the interest awarded thereon upto to date of the award. It should be noted that the difference in the interest awarded for the pre-award period and post-award period, is only with reference to the rate of interest and not the quantum of principal (that bears interest). Conclusion 24. Thus it is clear that section 31(7) merely authorizes the arbitral tribunal to award interest in accordance with the contract and in the absence of any prohibition in the contract and in the absence of specific provision relating to interest in the contract, to award simple interest at such rates as it deems fit from the date on which the cause of action arose till the date of payment. It also provides that if the award is silent about interest from the date of award till date of payment, the person in whose favour the award is made will be entitled to interest at 18% per annum on the principal amount awarded, from the date of award till date of payment. The calculation that was made in the execution petition as originally filed was correct and the modification by the respondent increasing the amount due under the award was contrary to the Award.
### Response:
1
### Explanation:
24. Thus it is clear that section 31(7) merely authorizes the arbitral tribunal to award interest in accordance with the contract and in the absence of any prohibition in the contract and in the absence of specific provision relating to interest in the contract, to award simple interest at such rates as it deems fit from the date on which the cause of action arose till the date of payment. It also provides that if the award is silent about interest from the date of award till date of payment, the person in whose favour the award is made will be entitled to interest at 18% per annum on the principal amount awarded, from the date of award till date of payment. The calculation that was made in the execution petition as originally filed was correct and the modification by the respondent increasing the amount due under the award was contrary to the Award15. There is a tendency among contractors to elevate the claims for interest and costs to the level of substantive disputes by describing them as separate and independent heads of claim. The long pendency of arbitration matters either due to prolonged arbitration proceedings or due to litigations (both intervening and, has the unfortunate effect of swelling the interest payable on the amount awarded and costs to very substantial amounts. In many arbitral awards for money, the interest awarded often exceeds the amount awarded, by several times. Leisurely arbitrations, avoidable judicial interventions, and indecisiveness on the part of decision makers in government and statutory bodies in accepting and settling genuine claims either at the stage when the claim is made or at least at the stage when the award is made have resulted in undue emphasis and importance being bestowed upon interest and costs. However substantial their quantum may be in a given case, interest, in particular interest from the date of the award, and costs are ancillary issues and are not substantive disputesIn a nutshell, in regard tod period, interest has to be awarded as specified in the contract and in the absence of contract as per discretion of the Arbitral Tribunal. On the other hand, in regard to thed period, interest is payable as per the discretion of the Arbitral Tribunal and in the absence of exercise of such discretion, at a mandatory statutory rate of 18% per annum19. We will next deal with the three cases relied upon by the learned counsel for the respondent to contend that this Court has recognized and accepted the power of the arbitral tribunals to award interest upon interest: Oil & Natural Gas Commission v. M.C. Clelland Engineers S.A.(1999) (4) SCC 327 , Mcdermott International Inc. vs. Burn Standard Co. Ltd. and Others(2006) 11 SCC 181 , and Uttar Pradesh Cooperative Federation Limited vs. Three Circles(2009) 10 SCC 374. But out of these three decisions only the decision in Mcdermott relates to an award under the Arbitration and Conciliation Act, 1996. The other two decisions relate to awards under the old Act (Arbitration Act, 1940) and are of no assistance in interpreting section 31(7) of the new Act20. In Mcdermott, paras 154 to 159 of the judgment deal with the issue of interest. Relevant portions thereof are extracted below in entirety:"The power of the arbitrator to award interest ford period, interest pendent lite and interestd period is not in dispute. Section 31(7)(a) provides that the arbitral tribunal may award interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which award is made, i.e.,d period. This, however, is subject to the agreement as regard the rate of interest on unpaid sum between the parties. The question as to whether interest would be paid on the whole or part of the amount or whether it should be awarded in thed period would depend upon the facts and circumstances of each case. The arbitral tribunal in this behalf will have to exercise its discretion as regards (i) at what rate interest should be awarded; (ii) whether interest should be awarded on whole or part of the award money; and (iii) whether interest should be awarded for whole or any part of the"The 1996 Act provides for award of 18% interest. The arbitrator in his wisdom has granted 10% interest both for the principal amount as also for the interim. By reason of the award, interest was awarded on the principal Amount. An interest thereon was upto the date of award as also the future interest at the rate of 18% per annumHowever, in some cases, this court was resorted to exercise its jurisdiction under Article 142 in order to do complete justice between the parties..........In this case, given the long lapse of time, it will be in furtherance of justice to reduce the rate of interest to 7 1/2%."A careful reading of the same shows that there is no reference to awarding of compound interest or interest from the date of the award on the interest that had accrued due up to the date of award. The decision dealt with the rate of interest and exercise of jurisdiction under Article 142 of the Constitution to set right anomalies in regard to rate of interest. The said decision is therefore, of no assistance
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Abdui, Gafoor Vs. State Of Mysore | entitle the applicant to a permit. It is the duty of the Regional Transport Authority to decide on a consideration of all relevant matters whether the application should be allowed. Other operators and even the public have a legal right to make representations to persuade the Authority not to grant the permit on the merits of the case. It is for this reason that there was necessity to make the provisions in sub-sec. (3) of S. 57 so that the Regional Transport Authority may receive every assistance in coming to a proper conclusion. When, however, a scheme prepared and published under S. 68-C had been approved and an application has been made in pursuance of the scheme and in the proper manner as specified in Chapter IV nothing more remains to be decided by the Regional Transport Authority. The nature of the matter dealt with under S. 68-F (1) is thus such as does not and cannot attract any of the provisions of S. 57(3).7. It may be mentioned here that in Srinivasa Reddy v. State of Mysore, 1960-2 SCR130 : (AIR 1960 SC 350 ) a question was raised whether S. 57(3) applied or not to an application made under S. 68-F (1). The Court considered it unnecessary then to go into the matter as on the facts of that case it was found that the application had not been made in the manner provided in Chapter IV and was actually in breach of S. 57(2) of the Act and so no permit could be issued on such an application. The provision in S. 57(2) which was applicable to applications under S. 68-F is that an application for a permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. In that case the Court held that this provision in S. 57(2) is in reality a manner of making the application and consequently it applied to applications made under S. 68-F (1). The provisions of S. 57(3) cannot however be said to have anything to do with the manner of making the application and the nature of the matter dealt with under S. 68-F (1) is such that provisions of S. 57(3) are not attracted.8. The next argument is that the Regional Transport Authority functions as a quasi-judicial authority when dealing with an application made by the State Transport Undertaking under S. 68-F (1). It is said that as under S. 68-F (2) the Regional Transport Authority may refuse to entertain an application for renewal of any other permit or cancel an existing permit or modify in certain matters the terms of an existing permit, for the purpose of giving effect to the approved scheme there is a lis between the existing permit holders and the State Transport Undertaking when an application under S. 68-F (1) is dealt with.9. It appears to us that when deciding what action to take under S. 68-F (2) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the scheme. The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme. The duty is, therefore, merely mechanical; and it will be incorrect to say that there is in these matters any lis between the existing operators and the State Transport Undertaking which is to be decided by the Regional Transport Authority. There is no justification therefore for saying that when taking action under S. 68-F (2) the Regional Transport Authority is exercising a quasi-judicial function. Apart from this it has to be pointed out that action under S. 68-F (2) is really independent of the issue of the permits under S. 68-F (1). Once the scheme has been approved, action under S. 68-F (1) flows from it and at the same time action under S. 68-F (2) flows from the same scheme The argument that the Regional Transport Authority should be held to be exercising quasi-judicial function in dealing with applications for permits under S. 68-F (1) because of the action it may take under S. 68-F (2), therefore, fails.10. It was next said that when the Regional Transport Authority issues the permit it can attach to the permit conditions under S. 48(3) of the Act. Section 48(3) authorises the Regional Transport Authority if it decides to grant a stage carriage permit, to attach to the permit any of the conditions specified in the sub-section. It has to be noticed that S. 68-F (1) does not speak of the "grant" of a permit but provides that the Regional Transport Authority shall "issue" a permit. In any case, if the Regional Transport Authority has to decide what conditions to attach to such a permit, it is not possible to say that it is then exercising a quasi-judicial function. For, in deciding that matter the Regional Transport Authority is to have regard to the interests of the public but there is no question because of that, of any lis between the State Transport Undertaking on the one hand and the public on the other.11. In our opinion, the Regional Transport Authority acts wholly in a ministerial capacity while dealing with an application of the State Transport Undertaking under S. 68-F (1). The fact that on other occasions and in other matters the Regional Transport Authority has quasi-judicial functions to perform cannot make its function under S. 68-F (1) a quasi-judicial function.12. Our conclusion, therefore, is that the petitioners contention that no permit can be granted to the State Transport Undertaking until the applications for permit have been duly published and notices have been given to the petitioner of these applications is unsound. Consequently, the petitioner is not entitled to any relief. | 0[ds]This argument, in our opinion, is fallacious. All that S. 68-B pre-supposes is that there are some provisions in Chapter IV which may apply to matters under Chapter IV-A; on that assumption it proceeds to say that if on a matter to which provisions of Chapter IV would prima facie apply there is a provision in Chapter IV-A also which appears applicable the provision in Chapter IV-A will prevail to the extent of its inconsistency with the corresponding provision in Chapter IV. As to what provisions in Chapter IV will apply or not S. 68-B says nothing and provides no guidance either expressly or byappears clear to us that the provisions of S. 57(3) have nothing to do with these matters dealt with by S. 68-F (1).Section 57(3) lays on the Regional Transport Authority certain duties when it considers an application for a permit. These conditions are (1) to make the application available for inspection at the office of the Authority, (2) to publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date and the time and place at which the application and any representations, received will be considered. Under S. 68-F (1) as already mentioned the Regional Transport Authority has no option to refuse the grant of the permit provided it has been made in pursuance of the approved scheme and in the manner mentioned in Chap. IV. The duty of the Regional Transport Authority on receipt of the application from the State Transport Undertaking for a permit is therefore to examine the application for itself to see whether it is in pursuance of an approved scheme and secondly whether it has been made in the manner laid down in Chapter IV. This is a duty which the Regional Transport Authority has to perform for itself and there is no question of its asking for assistance from the public or existing permit holders for Transport Services on the route. Neither the public in general nor the permit holder has any part to play in this matter.6. The provisions of S. 57(3) for making the application made under Chapter IV, available for inspection, for publishing the application or a substance thereof with a notice of the date by which the representations may be submitted and the date, time and place when the representations will be considered are required to enable the Regional Transport Authority to come to a correct conclusion as to whether the application should be granted or not. An application not made in the manner laid down in Chapter IV will not be considered by the Regional Transport Authority at all. But the mere fact that it has been made in the proper manner will not entitle the applicant to a permit. It is the duty of the Regional Transport Authority to decide on a consideration of all relevant matters whether the application should be allowed. Other operators and even the public have a legal right to make representations to persuade the Authority not to grant the permit on the merits of the case. It is for this reason that there was necessity to make the provisions in sub-sec. (3) of S. 57 so that the Regional Transport Authority may receive every assistance in coming to a proper conclusion. When, however, a scheme prepared and published under S. 68-C had been approved and an application has been made in pursuance of the scheme and in the proper manner as specified in Chapter IV nothing more remains to be decided by the Regional Transport Authority. The nature of the matter dealt with under S. 68-F (1) is thus such as does not and cannot attract any of the provisions of S. 57(3).7. It may be mentioned here that in Srinivasa Reddy v. State of Mysore, 1960-2 SCR130 : (AIR 1960 SC 350 ) a question was raised whether S. 57(3) applied or not to an application made under S. 68-F (1). The Court considered it unnecessary then to go into the matter as on the facts of that case it was found that the application had not been made in the manner provided in Chapter IV and was actually in breach of S. 57(2) of the Act and so no permit could be issued on such an application. The provision in S. 57(2) which was applicable to applications under S. 68-F is that an application for a permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. In that case the Court held that this provision in S. 57(2) is in reality a manner of making the application and consequently it applied to applications made under S. 68-F (1). The provisions of S. 57(3) cannot however be said to have anything to do with the manner of making the application and the nature of the matter dealt with under S. 68-F (1) is such that provisions of S. 57(3) are not attracted.It appears to us that when deciding what action to take under S. 68-F (2) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the scheme. The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme. The duty is, therefore, merely mechanical; and it will be incorrect to say that there is in these matters any lis between the existing operators and the State Transport Undertaking which is to be decided by the Regional Transport Authority. There is no justification therefore for saying that when taking action under S. 68-F (2) the Regional Transport Authority is exercising a quasi-judicial function. Apart from this it has to be pointed out that action under S. 68-F (2) is really independent of the issue of the permits under S. 68-F (1). Once the scheme has been approved, action under S. 68-F (1) flows from it and at the same time action under S. 68-F (2) flows from the same scheme The argument that the Regional Transport Authority should be held to be exercising quasi-judicial function in dealing with applications for permits under S. 68-F (1) because of the action it may take under S. 68-F (2), therefore,48(3) authorises the Regional Transport Authority if it decides to grant a stage carriage permit, to attach to the permit any of the conditions specified in the sub-section. It has to be noticed that S. 68-F (1) does not speak of the "grant" of a permit but provides that the Regional Transport Authority shall "issue" a permit. In any case, if the Regional Transport Authority has to decide what conditions to attach to such a permit, it is not possible to say that it is then exercising a quasi-judicial function. For, in deciding that matter the Regional Transport Authority is to have regard to the interests of the public but there is no question because of that, of any lis between the State Transport Undertaking on the one hand and the public on the other.11. In our opinion, the Regional Transport Authority acts wholly in a ministerial capacity while dealing with an application of the State Transport Undertaking under S. 68-F (1). The fact that on other occasions and in other matters the Regional Transport Authority has quasi-judicial functions to perform cannot make its function under S. 68-F (1) a quasi-judicial function.12. Our conclusion, therefore, is that the petitioners contention that no permit can be granted to the State Transport Undertaking until the applications for permit have been duly published and notices have been given to the petitioner of these applications is unsound. Consequently, the petitioner is not entitled to any relief. | 0 | 2,539 | 1,482 | ### 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:
entitle the applicant to a permit. It is the duty of the Regional Transport Authority to decide on a consideration of all relevant matters whether the application should be allowed. Other operators and even the public have a legal right to make representations to persuade the Authority not to grant the permit on the merits of the case. It is for this reason that there was necessity to make the provisions in sub-sec. (3) of S. 57 so that the Regional Transport Authority may receive every assistance in coming to a proper conclusion. When, however, a scheme prepared and published under S. 68-C had been approved and an application has been made in pursuance of the scheme and in the proper manner as specified in Chapter IV nothing more remains to be decided by the Regional Transport Authority. The nature of the matter dealt with under S. 68-F (1) is thus such as does not and cannot attract any of the provisions of S. 57(3).7. It may be mentioned here that in Srinivasa Reddy v. State of Mysore, 1960-2 SCR130 : (AIR 1960 SC 350 ) a question was raised whether S. 57(3) applied or not to an application made under S. 68-F (1). The Court considered it unnecessary then to go into the matter as on the facts of that case it was found that the application had not been made in the manner provided in Chapter IV and was actually in breach of S. 57(2) of the Act and so no permit could be issued on such an application. The provision in S. 57(2) which was applicable to applications under S. 68-F is that an application for a permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. In that case the Court held that this provision in S. 57(2) is in reality a manner of making the application and consequently it applied to applications made under S. 68-F (1). The provisions of S. 57(3) cannot however be said to have anything to do with the manner of making the application and the nature of the matter dealt with under S. 68-F (1) is such that provisions of S. 57(3) are not attracted.8. The next argument is that the Regional Transport Authority functions as a quasi-judicial authority when dealing with an application made by the State Transport Undertaking under S. 68-F (1). It is said that as under S. 68-F (2) the Regional Transport Authority may refuse to entertain an application for renewal of any other permit or cancel an existing permit or modify in certain matters the terms of an existing permit, for the purpose of giving effect to the approved scheme there is a lis between the existing permit holders and the State Transport Undertaking when an application under S. 68-F (1) is dealt with.9. It appears to us that when deciding what action to take under S. 68-F (2) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the scheme. The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme. The duty is, therefore, merely mechanical; and it will be incorrect to say that there is in these matters any lis between the existing operators and the State Transport Undertaking which is to be decided by the Regional Transport Authority. There is no justification therefore for saying that when taking action under S. 68-F (2) the Regional Transport Authority is exercising a quasi-judicial function. Apart from this it has to be pointed out that action under S. 68-F (2) is really independent of the issue of the permits under S. 68-F (1). Once the scheme has been approved, action under S. 68-F (1) flows from it and at the same time action under S. 68-F (2) flows from the same scheme The argument that the Regional Transport Authority should be held to be exercising quasi-judicial function in dealing with applications for permits under S. 68-F (1) because of the action it may take under S. 68-F (2), therefore, fails.10. It was next said that when the Regional Transport Authority issues the permit it can attach to the permit conditions under S. 48(3) of the Act. Section 48(3) authorises the Regional Transport Authority if it decides to grant a stage carriage permit, to attach to the permit any of the conditions specified in the sub-section. It has to be noticed that S. 68-F (1) does not speak of the "grant" of a permit but provides that the Regional Transport Authority shall "issue" a permit. In any case, if the Regional Transport Authority has to decide what conditions to attach to such a permit, it is not possible to say that it is then exercising a quasi-judicial function. For, in deciding that matter the Regional Transport Authority is to have regard to the interests of the public but there is no question because of that, of any lis between the State Transport Undertaking on the one hand and the public on the other.11. In our opinion, the Regional Transport Authority acts wholly in a ministerial capacity while dealing with an application of the State Transport Undertaking under S. 68-F (1). The fact that on other occasions and in other matters the Regional Transport Authority has quasi-judicial functions to perform cannot make its function under S. 68-F (1) a quasi-judicial function.12. Our conclusion, therefore, is that the petitioners contention that no permit can be granted to the State Transport Undertaking until the applications for permit have been duly published and notices have been given to the petitioner of these applications is unsound. Consequently, the petitioner is not entitled to any relief.
### Response:
0
### Explanation:
for Transport Services on the route. Neither the public in general nor the permit holder has any part to play in this matter.6. The provisions of S. 57(3) for making the application made under Chapter IV, available for inspection, for publishing the application or a substance thereof with a notice of the date by which the representations may be submitted and the date, time and place when the representations will be considered are required to enable the Regional Transport Authority to come to a correct conclusion as to whether the application should be granted or not. An application not made in the manner laid down in Chapter IV will not be considered by the Regional Transport Authority at all. But the mere fact that it has been made in the proper manner will not entitle the applicant to a permit. It is the duty of the Regional Transport Authority to decide on a consideration of all relevant matters whether the application should be allowed. Other operators and even the public have a legal right to make representations to persuade the Authority not to grant the permit on the merits of the case. It is for this reason that there was necessity to make the provisions in sub-sec. (3) of S. 57 so that the Regional Transport Authority may receive every assistance in coming to a proper conclusion. When, however, a scheme prepared and published under S. 68-C had been approved and an application has been made in pursuance of the scheme and in the proper manner as specified in Chapter IV nothing more remains to be decided by the Regional Transport Authority. The nature of the matter dealt with under S. 68-F (1) is thus such as does not and cannot attract any of the provisions of S. 57(3).7. It may be mentioned here that in Srinivasa Reddy v. State of Mysore, 1960-2 SCR130 : (AIR 1960 SC 350 ) a question was raised whether S. 57(3) applied or not to an application made under S. 68-F (1). The Court considered it unnecessary then to go into the matter as on the facts of that case it was found that the application had not been made in the manner provided in Chapter IV and was actually in breach of S. 57(2) of the Act and so no permit could be issued on such an application. The provision in S. 57(2) which was applicable to applications under S. 68-F is that an application for a permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. In that case the Court held that this provision in S. 57(2) is in reality a manner of making the application and consequently it applied to applications made under S. 68-F (1). The provisions of S. 57(3) cannot however be said to have anything to do with the manner of making the application and the nature of the matter dealt with under S. 68-F (1) is such that provisions of S. 57(3) are not attracted.It appears to us that when deciding what action to take under S. 68-F (2) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the scheme. The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme. The duty is, therefore, merely mechanical; and it will be incorrect to say that there is in these matters any lis between the existing operators and the State Transport Undertaking which is to be decided by the Regional Transport Authority. There is no justification therefore for saying that when taking action under S. 68-F (2) the Regional Transport Authority is exercising a quasi-judicial function. Apart from this it has to be pointed out that action under S. 68-F (2) is really independent of the issue of the permits under S. 68-F (1). Once the scheme has been approved, action under S. 68-F (1) flows from it and at the same time action under S. 68-F (2) flows from the same scheme The argument that the Regional Transport Authority should be held to be exercising quasi-judicial function in dealing with applications for permits under S. 68-F (1) because of the action it may take under S. 68-F (2), therefore,48(3) authorises the Regional Transport Authority if it decides to grant a stage carriage permit, to attach to the permit any of the conditions specified in the sub-section. It has to be noticed that S. 68-F (1) does not speak of the "grant" of a permit but provides that the Regional Transport Authority shall "issue" a permit. In any case, if the Regional Transport Authority has to decide what conditions to attach to such a permit, it is not possible to say that it is then exercising a quasi-judicial function. For, in deciding that matter the Regional Transport Authority is to have regard to the interests of the public but there is no question because of that, of any lis between the State Transport Undertaking on the one hand and the public on the other.11. In our opinion, the Regional Transport Authority acts wholly in a ministerial capacity while dealing with an application of the State Transport Undertaking under S. 68-F (1). The fact that on other occasions and in other matters the Regional Transport Authority has quasi-judicial functions to perform cannot make its function under S. 68-F (1) a quasi-judicial function.12. Our conclusion, therefore, is that the petitioners contention that no permit can be granted to the State Transport Undertaking until the applications for permit have been duly published and notices have been given to the petitioner of these applications is unsound. Consequently, the petitioner is not entitled to any relief.
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Bhopal Sugar Industries Ltd.Madhya Pradesh, And Another Vs. D.B. Dube, Sales Tax Officer, Bhopal Region, Bhopal An | law with respect to tax on sale of goods under entry 48 must, to be intra vires be one relating in fact to sale of goods and accordingly, the Provincial Legislature cannot, in the purported exercise of its power to tax sales, tax transactions which are not sales by merely enacting that they shall be deemed to be sales. 5. In Gannon Dunkerley and Companys case, 1959 SCR 379 : (AIR 1958 SC 560 ) this Court was called upon to consider whether in a building contract which is one, entire and indivisible, there is sale of goods. It was held by the Court that the Provincial Legislature was not competent under Entry 48 List II, Sch. VII of the Government of India Act, 1935, to impose tax on the supply of materials used in such a contract treating it as a sale. The decision of the Court did not rest upon any peculiar character of a building contract. It was held on the larger ground canvassed in that case that the expression sale of goods within the meaning of the relevant legislative entry had the same connotation as sale of goods in the Indian Sale of Goods Act, 1930, and therefore the State Legislature had no power to enact legislation to levy tax under Entry 48 of List II in respect of transactions which were not of the nature of sales of goods strictly so called; and a building contract not being a transaction in which there was a sale of materials by the contractor who constructed the building, the State was not competent to enact legislation to impose tax on the supply of materials used in a building contract treating it as a sale. It was therefore held that the definition of sale in the Madras General Sales Tax Act IX of 1939 was to the extent of the extension invalid. 6. In Gannon Dunkerley and Companys case, 1959 SCR 379 : (AIR 1958 SC 560 ) the validity of S. 2(h) (ii) of the Madras General Sales Tax Act, 1939 as amended by Act XXV of 1947, in so far as it included goods included in a works contract fell to be determined, in the fight of the competence of the Provincial Legislature under Entry 48, List II in Seventh Schedule of the Government of India Act, 1935.Under the Constitution the relevant entry conferring legislative power upon States to tax sale of goods is Entry 54 of List II. As the scheme of division of legislative power under the Constitution has remained unaltered, the principle of Gannon Dunkerleys case, 1959 SCR 379 : (AIR 1958 SC 560 ) applies in adjudging the validity of the provisions of the Madhya Pradesh Act 4 of 1958. 7. Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of the Sale of Goods Act and therefore it is not sale of goods within the meaning of Entry 54, List II, Sch. VII of the Constitution. The legislative power for levying tax on sale of goods being restricted to enacting legislation for levying tax on transactions which conform to the definition of sale of goods within the meaning of the Sale of Goods Act, 1930, the extended definition which includes consumption by a retail dealer himself of motor spirit or lubricants sold to him for retail sale is beyond the competence of the State Legislature. But the clause in the definition in S. 2(1) and includes the consumption by a retail dealer himself or on his behalf of motor spirit or lubricant sold to him for retail sale which is ultra vires the State Legislature because of lack of competence under Entry 54 in List II, Sch. VII of the Constitution is severable, from the rest of the definition, and that clause alone must be declared invalid. 8. The Sales Tax Officer has sought to impose liability for payment of tax in respect of motor spirit and lubricants consumed by the company for his own vehicle relying solely upon the definition in S. 2(1) of the Act. He has observed : The definition under the said section clarifies the retail sale and consumption by a retail dealer. Since the retail sale has been clearly defined and consumption by itself has been included in the retail sale; I do not agree with the contention of dealers counsel (that the goods consumed for the vehicles of the dealer are not liable to tax under S. 3) and taxed on the goods consumed by the dealer, as above. The order of the Sales Tax Officer founded upon a part of the statute which is ultra vires cannot be sustained. 9. Counsel for the State of Madhya Pradesh contends in this petition that the Company is not the owner of the motor spirit and lubricants in which it deals: it is merely a commission agent for sale in respect of the goods supplied to it by the Caltex (India) Ltd. and on that account consumption for his own purpose of goods belonging to his principal amounts to sale within the meaning of the first part of the definition of S. 2(1) of the Act. But the Sales Tax Officer has not decided the case under the first part of the definition of retail sale : he has expressly founded his decision on the second part of the definition. In the circumstances we do not feel called upon to express any opinion on the question whether the Company is liable to pay sales-tax in respect of goods consumed for its motor-vehicles during the period in question. If it is competent to the Sales Tax Officer to adopt a proceeding to bring to tax consumption of goods by the Company for its own vehicles, relying upon the first part of the definition of retail sale in S. 2(1), because of the terms of the agreement and other relevant surrounding circumstances, it will be open to him to do so. | 1[ds]7. Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of the Sale of Goods Act and therefore it is not sale of goods within the meaning of Entry 54, List II, Sch. VII of the Constitution. The legislative power for levying tax on sale of goods being restricted to enacting legislation for levying tax on transactions which conform to the definition of sale of goods within the meaning of the Sale of Goods Act, 1930, the extended definition which includes consumption by a retail dealer himself of motor spirit or lubricants sold to him for retail sale is beyond the competence of the State Legislature. But the clause in the definition in S. 2(1) and includes the consumption by a retail dealer himself or on his behalf of motor spirit or lubricant sold to him for retail sale which is ultra vires the State Legislature because of lack of competence under Entry 54 in List II, Sch. VII of the Constitution is severable, from the rest of the definition, and that clause alone must be declared invalidBut the Sales Tax Officer has not decided the case under the first part of the definition of retail sale : he has expressly founded his decision on the second part of the definition. In the circumstances we do not feel called upon to express any opinion on the question whether the Company is liable to pay sales-tax in respect of goods consumed for its motor-vehicles during the period in question. If it is competent to the Sales Tax Officer to adopt a proceeding to bring to tax consumption of goods by the Company for its own vehicles, relying upon the first part of the definition of retail sale in S. 2(1), because of the terms of the agreement and other relevant surrounding circumstances, it will be open to him to do so. | 1 | 1,907 | 347 | ### 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:
law with respect to tax on sale of goods under entry 48 must, to be intra vires be one relating in fact to sale of goods and accordingly, the Provincial Legislature cannot, in the purported exercise of its power to tax sales, tax transactions which are not sales by merely enacting that they shall be deemed to be sales. 5. In Gannon Dunkerley and Companys case, 1959 SCR 379 : (AIR 1958 SC 560 ) this Court was called upon to consider whether in a building contract which is one, entire and indivisible, there is sale of goods. It was held by the Court that the Provincial Legislature was not competent under Entry 48 List II, Sch. VII of the Government of India Act, 1935, to impose tax on the supply of materials used in such a contract treating it as a sale. The decision of the Court did not rest upon any peculiar character of a building contract. It was held on the larger ground canvassed in that case that the expression sale of goods within the meaning of the relevant legislative entry had the same connotation as sale of goods in the Indian Sale of Goods Act, 1930, and therefore the State Legislature had no power to enact legislation to levy tax under Entry 48 of List II in respect of transactions which were not of the nature of sales of goods strictly so called; and a building contract not being a transaction in which there was a sale of materials by the contractor who constructed the building, the State was not competent to enact legislation to impose tax on the supply of materials used in a building contract treating it as a sale. It was therefore held that the definition of sale in the Madras General Sales Tax Act IX of 1939 was to the extent of the extension invalid. 6. In Gannon Dunkerley and Companys case, 1959 SCR 379 : (AIR 1958 SC 560 ) the validity of S. 2(h) (ii) of the Madras General Sales Tax Act, 1939 as amended by Act XXV of 1947, in so far as it included goods included in a works contract fell to be determined, in the fight of the competence of the Provincial Legislature under Entry 48, List II in Seventh Schedule of the Government of India Act, 1935.Under the Constitution the relevant entry conferring legislative power upon States to tax sale of goods is Entry 54 of List II. As the scheme of division of legislative power under the Constitution has remained unaltered, the principle of Gannon Dunkerleys case, 1959 SCR 379 : (AIR 1958 SC 560 ) applies in adjudging the validity of the provisions of the Madhya Pradesh Act 4 of 1958. 7. Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of the Sale of Goods Act and therefore it is not sale of goods within the meaning of Entry 54, List II, Sch. VII of the Constitution. The legislative power for levying tax on sale of goods being restricted to enacting legislation for levying tax on transactions which conform to the definition of sale of goods within the meaning of the Sale of Goods Act, 1930, the extended definition which includes consumption by a retail dealer himself of motor spirit or lubricants sold to him for retail sale is beyond the competence of the State Legislature. But the clause in the definition in S. 2(1) and includes the consumption by a retail dealer himself or on his behalf of motor spirit or lubricant sold to him for retail sale which is ultra vires the State Legislature because of lack of competence under Entry 54 in List II, Sch. VII of the Constitution is severable, from the rest of the definition, and that clause alone must be declared invalid. 8. The Sales Tax Officer has sought to impose liability for payment of tax in respect of motor spirit and lubricants consumed by the company for his own vehicle relying solely upon the definition in S. 2(1) of the Act. He has observed : The definition under the said section clarifies the retail sale and consumption by a retail dealer. Since the retail sale has been clearly defined and consumption by itself has been included in the retail sale; I do not agree with the contention of dealers counsel (that the goods consumed for the vehicles of the dealer are not liable to tax under S. 3) and taxed on the goods consumed by the dealer, as above. The order of the Sales Tax Officer founded upon a part of the statute which is ultra vires cannot be sustained. 9. Counsel for the State of Madhya Pradesh contends in this petition that the Company is not the owner of the motor spirit and lubricants in which it deals: it is merely a commission agent for sale in respect of the goods supplied to it by the Caltex (India) Ltd. and on that account consumption for his own purpose of goods belonging to his principal amounts to sale within the meaning of the first part of the definition of S. 2(1) of the Act. But the Sales Tax Officer has not decided the case under the first part of the definition of retail sale : he has expressly founded his decision on the second part of the definition. In the circumstances we do not feel called upon to express any opinion on the question whether the Company is liable to pay sales-tax in respect of goods consumed for its motor-vehicles during the period in question. If it is competent to the Sales Tax Officer to adopt a proceeding to bring to tax consumption of goods by the Company for its own vehicles, relying upon the first part of the definition of retail sale in S. 2(1), because of the terms of the agreement and other relevant surrounding circumstances, it will be open to him to do so.
### Response:
1
### Explanation:
7. Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of the Sale of Goods Act and therefore it is not sale of goods within the meaning of Entry 54, List II, Sch. VII of the Constitution. The legislative power for levying tax on sale of goods being restricted to enacting legislation for levying tax on transactions which conform to the definition of sale of goods within the meaning of the Sale of Goods Act, 1930, the extended definition which includes consumption by a retail dealer himself of motor spirit or lubricants sold to him for retail sale is beyond the competence of the State Legislature. But the clause in the definition in S. 2(1) and includes the consumption by a retail dealer himself or on his behalf of motor spirit or lubricant sold to him for retail sale which is ultra vires the State Legislature because of lack of competence under Entry 54 in List II, Sch. VII of the Constitution is severable, from the rest of the definition, and that clause alone must be declared invalidBut the Sales Tax Officer has not decided the case under the first part of the definition of retail sale : he has expressly founded his decision on the second part of the definition. In the circumstances we do not feel called upon to express any opinion on the question whether the Company is liable to pay sales-tax in respect of goods consumed for its motor-vehicles during the period in question. If it is competent to the Sales Tax Officer to adopt a proceeding to bring to tax consumption of goods by the Company for its own vehicles, relying upon the first part of the definition of retail sale in S. 2(1), because of the terms of the agreement and other relevant surrounding circumstances, it will be open to him to do so.
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Jiju Kuruvila Vs. Kunjujamma Mohan | 21. PW3, an independent eye witness was accompanying the deceased during the journey on the fateful day. He stated that the bus coming from the opposite direction hit the car driven by the deceased and the accident occurred due to rash and negligent driving of the bus driver. 22. Ext.A1, FIR registered by Pampady Police against the bus driver, P.C. Kurian, under Sections 279, 337 and 304A IPC shows that the accident occurred due to rash and negligent driving on the part of the bus driver. After investigation, the police submitted a chargesheet (Ext.A4) against the bus driver under Section 279, 337 and 304A IPC with specific allegation that the bus driver caused the death of Joy Kuruvila due to rash and negligent driving of the bus on 16th April, 1990 at 4.50P.M. In view of the direct evidence, the Tribunal and the High Court held that the accident was occurred due to rash and negligent driving on the part of the bus driver. 23. There is no evidence on record to suggest any negligence on the part of the deceased. Ext.B2, ‘Scene Mahazar’ also does not suggest any rash and negligent driving on the part of the deceased. 24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 25. Post Mortem report, Ext.A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. 26. The aforesaid evidence, Ext.A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.B2, ‘Scene Mahazar’ and the Ext.A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eyewitness, Ext.A1(FIR), Ext.A4(chargesheet) and Ext.B1(F.I. statement) are on record.In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises. 27. The last question relates to just and proper compensation. Both the Tribunal and the High Court have accepted that the deceased was 45 years of age at the time of accident; he was working as manager, Freeman Management Corporation, New York Branch, U.S.A. and was getting a monthly salary of 2500 U.S. Dollars. The High Court accepted that the deceased, as per conditions of service, could have continued the employment upto the age of 65 years.28. Ext.A6, is a certificate issued by the employer of deceased, i.e., Freeman Management Corporation, U.S.A. dated 23rd April, 1990 which shows that his annual salary was 30,000 U.S.Dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service upto the age of 65 years. Ext.A6 was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.29. On the basis of the aforesaid annual income and exchange rate of Rs. 17.30 per US Dollar as applicable in April, 1990 (Ext.A7), the annual income of the deceased if converted in Indian currency will be 30,000 x 17.30 = 5,19,000/- at the time of death. The deceased was 45 years of age, therefore, as per decision in Sarla Verma & Ors. V. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 , multiplier of 14 shall be applicable. But the High Court and the Tribunal wrongly held that the multiplier of 15 will be applicable. Thus, by applying the multiplier of 14, the amount of compensation will be Rs.5,19,000 x 14 = Rs.72,66,000/-. The family of the deceased consisted of 5 persons i.e. deceased himself, wife, two children and his mother. As per the decision of this Court in Sarla Verma (supra) there being four dependents at the time of death, 1/4th of the total income to be deducted towards personal and living expenses of the deceased. The High Court has also noticed that out of 2,500 US Dollars, the deceased used to spend 500 US Dollars i.e. 1/5th of his income. Therefore, if 1/4th of the total income i.e. Rs. 18,16,500/- is deducted towards personal and living expenses of the deceased, the contribution to the family will be (Rs. 72,66,000 – Rs. 18,16,500/=) Rs.54,49,500/. Besides the aforesaid compensation, the claimants are entitled to get Rs.1,00,000/- each towards love and affection of the two children i.e. Rs.2,00,000/- and a sum of Rs.1,00,000/- towards loss of consortium to wife which seems to be reasonable. Therefore, the total amount comes to Rs.57,49,500/-.30. The claimants are entitled to get the said amount of compensation alongwith interest @ 12% from the date of filing of the petition till the date of realisation, leaving rest of the conditions as mentioned in the award intact. 31. | 1[ds]In the present case, admittedly the claimants filed a petition in April, 1990 (affidavit sworn on 24th March, 1990) and claimed compensation in INR i.e. Rs.57,25,000/-. Such compensation was not claimed in U.S. Dollars. For the said reason and in view of the decision of this Court in Forasol (supra) as followed in Renusagar Power Co.Ltd.(supra), we hold that the date of filing of the claim petition (April, 1990) is the proper date for fixing the rate of exchange at which foreign currency amount has to be converted into currency of the country (INR). The Tribunal and the High Court have rightly relied on Ext.A7, to fix the rate of exchange as Rs.17.30 (as was prevailing in April, 1990).17. The second question is relating to contributory negligence of the deceased. According to the claimants, accident occurred due to rash and negligent driving on the part of the bus driver, P.C. Kurian and there was no negligence on the part of the deceased, Joy Kuruvila. Per contra, according to the Insurance Company, the accident took place due to negligent driving on the part of the deceased, who was in the intoxicated condition. They relied on Ext.A5, the post-mortem report.18. Three witnesses, PW.1 to PW.3 deposed before the Tribunal. Parties placed documentary evidence, Ext.A1 to Ext.A8, Ext. B1 and B2. On behalf of the claimants, they relied on the oral evidence and documentary evidence to show rash and negligent driving on the part of the bus driver. On behalf of the Insurance Company, the counsel relied on Ext.B2 ‘Sceneand Ext.A5, post mortem report to suggest negligence on the part of the deceased.19. The High Court based on Ext.B2 ‘Sceneand Ext.A5, post mortem report held that there was also negligence on the part of the deceased asaforesaid evidence, Ext.A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.B2, ‘Sceneand the Ext.A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eyewitness, Ext.A1(FIR), Ext.A4(chargesheet) and Ext.B1(F.I. statement) are on record.In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption andthe Tribunal and the High Court have accepted that the deceased was 45 years of age at the time of accident; he was working as manager, Freeman Management Corporation, New York Branch, U.S.A. and was getting a monthly salary of 2500 U.S. Dollars. The High Court accepted that the deceased, as per conditions of service, could have continued the employment upto the age of 65 years.28. Ext.A6, is a certificate issued by the employer of deceased, i.e., Freeman Management Corporation, U.S.A. dated 23rd April, 1990 which shows that his annual salary was 30,000 U.S.Dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service upto the age of 65 years. Ext.A6 was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.29. On the basis of the aforesaid annual income and exchange rate of Rs. 17.30 per US Dollar as applicable in April, 1990 (Ext.A7), the annual income of the deceased if converted in Indian currency will be 30,000 x 17.30 = 5,19,000/- at the time of death. The deceased was 45 years of age, therefore, as per decision in Sarla Verma & Ors. V. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 , multiplier of 14 shall be applicable. But the High Court and the Tribunal wrongly held that the multiplier of 15 will be applicable. Thus, by applying the multiplier of 14, the amount of compensation will be Rs.5,19,000 x 14 = Rs.72,66,000/-. The family of the deceased consisted of 5 persons i.e. deceased himself, wife, two children and his mother. As per the decision of this Court in Sarla Verma (supra) there being four dependents at the time of death, 1/4th of the total income to be deducted towards personal and living expenses of the deceased. The High Court has also noticed that out of 2,500 US Dollars, the deceased used to spend 500 US Dollars i.e. 1/5th of his income. Therefore, if 1/4th of the total income i.e. Rs. 18,16,500/- is deducted towards personal and living expenses of the deceased, the contribution to the family will be (Rs. 72,66,000 – Rs. 18,16,500/=) Rs.54,49,500/. Besides the aforesaid compensation, the claimants are entitled to get Rs.1,00,000/- each towards love and affection of the two children i.e. Rs.2,00,000/- and a sum of Rs.1,00,000/- towards loss of consortium to wife which seems to be reasonable. Therefore, the total amount comes to Rs.57,49,500/-.30. The claimants are entitled to get the said amount of compensation alongwith interest @ 12% from the date of filing of the petition till the date of realisation, leaving rest of the conditions as mentioned in the award intact. | 1 | 4,542 | 1,037 | ### 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:
21. PW3, an independent eye witness was accompanying the deceased during the journey on the fateful day. He stated that the bus coming from the opposite direction hit the car driven by the deceased and the accident occurred due to rash and negligent driving of the bus driver. 22. Ext.A1, FIR registered by Pampady Police against the bus driver, P.C. Kurian, under Sections 279, 337 and 304A IPC shows that the accident occurred due to rash and negligent driving on the part of the bus driver. After investigation, the police submitted a chargesheet (Ext.A4) against the bus driver under Section 279, 337 and 304A IPC with specific allegation that the bus driver caused the death of Joy Kuruvila due to rash and negligent driving of the bus on 16th April, 1990 at 4.50P.M. In view of the direct evidence, the Tribunal and the High Court held that the accident was occurred due to rash and negligent driving on the part of the bus driver. 23. There is no evidence on record to suggest any negligence on the part of the deceased. Ext.B2, ‘Scene Mahazar’ also does not suggest any rash and negligent driving on the part of the deceased. 24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 25. Post Mortem report, Ext.A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. 26. The aforesaid evidence, Ext.A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.B2, ‘Scene Mahazar’ and the Ext.A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eyewitness, Ext.A1(FIR), Ext.A4(chargesheet) and Ext.B1(F.I. statement) are on record.In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises. 27. The last question relates to just and proper compensation. Both the Tribunal and the High Court have accepted that the deceased was 45 years of age at the time of accident; he was working as manager, Freeman Management Corporation, New York Branch, U.S.A. and was getting a monthly salary of 2500 U.S. Dollars. The High Court accepted that the deceased, as per conditions of service, could have continued the employment upto the age of 65 years.28. Ext.A6, is a certificate issued by the employer of deceased, i.e., Freeman Management Corporation, U.S.A. dated 23rd April, 1990 which shows that his annual salary was 30,000 U.S.Dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service upto the age of 65 years. Ext.A6 was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.29. On the basis of the aforesaid annual income and exchange rate of Rs. 17.30 per US Dollar as applicable in April, 1990 (Ext.A7), the annual income of the deceased if converted in Indian currency will be 30,000 x 17.30 = 5,19,000/- at the time of death. The deceased was 45 years of age, therefore, as per decision in Sarla Verma & Ors. V. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 , multiplier of 14 shall be applicable. But the High Court and the Tribunal wrongly held that the multiplier of 15 will be applicable. Thus, by applying the multiplier of 14, the amount of compensation will be Rs.5,19,000 x 14 = Rs.72,66,000/-. The family of the deceased consisted of 5 persons i.e. deceased himself, wife, two children and his mother. As per the decision of this Court in Sarla Verma (supra) there being four dependents at the time of death, 1/4th of the total income to be deducted towards personal and living expenses of the deceased. The High Court has also noticed that out of 2,500 US Dollars, the deceased used to spend 500 US Dollars i.e. 1/5th of his income. Therefore, if 1/4th of the total income i.e. Rs. 18,16,500/- is deducted towards personal and living expenses of the deceased, the contribution to the family will be (Rs. 72,66,000 – Rs. 18,16,500/=) Rs.54,49,500/. Besides the aforesaid compensation, the claimants are entitled to get Rs.1,00,000/- each towards love and affection of the two children i.e. Rs.2,00,000/- and a sum of Rs.1,00,000/- towards loss of consortium to wife which seems to be reasonable. Therefore, the total amount comes to Rs.57,49,500/-.30. The claimants are entitled to get the said amount of compensation alongwith interest @ 12% from the date of filing of the petition till the date of realisation, leaving rest of the conditions as mentioned in the award intact. 31.
### Response:
1
### Explanation:
In the present case, admittedly the claimants filed a petition in April, 1990 (affidavit sworn on 24th March, 1990) and claimed compensation in INR i.e. Rs.57,25,000/-. Such compensation was not claimed in U.S. Dollars. For the said reason and in view of the decision of this Court in Forasol (supra) as followed in Renusagar Power Co.Ltd.(supra), we hold that the date of filing of the claim petition (April, 1990) is the proper date for fixing the rate of exchange at which foreign currency amount has to be converted into currency of the country (INR). The Tribunal and the High Court have rightly relied on Ext.A7, to fix the rate of exchange as Rs.17.30 (as was prevailing in April, 1990).17. The second question is relating to contributory negligence of the deceased. According to the claimants, accident occurred due to rash and negligent driving on the part of the bus driver, P.C. Kurian and there was no negligence on the part of the deceased, Joy Kuruvila. Per contra, according to the Insurance Company, the accident took place due to negligent driving on the part of the deceased, who was in the intoxicated condition. They relied on Ext.A5, the post-mortem report.18. Three witnesses, PW.1 to PW.3 deposed before the Tribunal. Parties placed documentary evidence, Ext.A1 to Ext.A8, Ext. B1 and B2. On behalf of the claimants, they relied on the oral evidence and documentary evidence to show rash and negligent driving on the part of the bus driver. On behalf of the Insurance Company, the counsel relied on Ext.B2 ‘Sceneand Ext.A5, post mortem report to suggest negligence on the part of the deceased.19. The High Court based on Ext.B2 ‘Sceneand Ext.A5, post mortem report held that there was also negligence on the part of the deceased asaforesaid evidence, Ext.A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.B2, ‘Sceneand the Ext.A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eyewitness, Ext.A1(FIR), Ext.A4(chargesheet) and Ext.B1(F.I. statement) are on record.In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption andthe Tribunal and the High Court have accepted that the deceased was 45 years of age at the time of accident; he was working as manager, Freeman Management Corporation, New York Branch, U.S.A. and was getting a monthly salary of 2500 U.S. Dollars. The High Court accepted that the deceased, as per conditions of service, could have continued the employment upto the age of 65 years.28. Ext.A6, is a certificate issued by the employer of deceased, i.e., Freeman Management Corporation, U.S.A. dated 23rd April, 1990 which shows that his annual salary was 30,000 U.S.Dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service upto the age of 65 years. Ext.A6 was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.29. On the basis of the aforesaid annual income and exchange rate of Rs. 17.30 per US Dollar as applicable in April, 1990 (Ext.A7), the annual income of the deceased if converted in Indian currency will be 30,000 x 17.30 = 5,19,000/- at the time of death. The deceased was 45 years of age, therefore, as per decision in Sarla Verma & Ors. V. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 , multiplier of 14 shall be applicable. But the High Court and the Tribunal wrongly held that the multiplier of 15 will be applicable. Thus, by applying the multiplier of 14, the amount of compensation will be Rs.5,19,000 x 14 = Rs.72,66,000/-. The family of the deceased consisted of 5 persons i.e. deceased himself, wife, two children and his mother. As per the decision of this Court in Sarla Verma (supra) there being four dependents at the time of death, 1/4th of the total income to be deducted towards personal and living expenses of the deceased. The High Court has also noticed that out of 2,500 US Dollars, the deceased used to spend 500 US Dollars i.e. 1/5th of his income. Therefore, if 1/4th of the total income i.e. Rs. 18,16,500/- is deducted towards personal and living expenses of the deceased, the contribution to the family will be (Rs. 72,66,000 – Rs. 18,16,500/=) Rs.54,49,500/. Besides the aforesaid compensation, the claimants are entitled to get Rs.1,00,000/- each towards love and affection of the two children i.e. Rs.2,00,000/- and a sum of Rs.1,00,000/- towards loss of consortium to wife which seems to be reasonable. Therefore, the total amount comes to Rs.57,49,500/-.30. The claimants are entitled to get the said amount of compensation alongwith interest @ 12% from the date of filing of the petition till the date of realisation, leaving rest of the conditions as mentioned in the award intact.
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M/s. Vijayawada Bottling Company Limited Vs. Collector of Central Excise, Guntur | bottling have to be considered a part of manufacturing process and the cost of the same has to be reckoned towards the manufacture of the appellants product. In view of the difference of opinion among the two learned Members, the matter was referred to the third Member of the Tribunal on the following point of difference "Whether in the facts and circumstances of the case, the service charges do not relate to the manufacture of aerated water, as claimed by the appellants, and are, therefore, to be excluded for arriving at the assessable value as held by Member (Judicial) or these relate to the manufacture of aerated water and are, therefore, to be included for arriving at the assessable value as held by Member (Technical)." * 2. The third learned Member of the Tribunal (Shri P. C. Jam) agreed with the view of the Technical Member and held that the service charges collected by the appellant in respect of the activities undertaken by them related to the manufacture of the excisable goods in question. In view of the majority opinion the Tribunal has held that the service charges, namely, for sorting out the printed bottles separating the broken bottles before they are sent to automatic bottle-washing plant relate to manufacture of aerated water and a are includible in the assessable value of aerated water. The appeal of the appellant as regards service charges was therefore, dismissed, but the appeal was allowed in respect of the rental charges and the matter was remitted to the Assistant Collector to verify the actual rental charges and redetermine the assessable value of aerated water for deducting the same from the price of the aerated water. Feeling aggrieved by the decision of the Tribunal, relating to inclusion of service charges in the price, the appellant has filed this appeal 3. Section 4 of the Act makes provision for valuation of excisable goods for the purpose of charging of excise duty in cases where under the Act duty of excise is chargeable on any excisable goods with reference to value. For the purpose of Section 4, the expression "value" is defined in clause (d) of Section 4(4). The relevant part of the said definition is produced as under "4. (4) (d) value in relation to any excisable goods, -(i) where the goods are delivered at the time of removal in a packed condition, includes the cost of such packing except the cost of the packing which is of a durable nature and is returnable by the buyer to the assessee. Explanation. -In this sub-clause packing means the wrapper, container, bobbin, pirn, spool, reel or warp beam or any other thing in which or on which the excisable goods are wrapped, contained or wound;" * 4. In the case of CCE v. Century Spg. and Mfg. Co. Ltd. 2 the assessee was manufacturer of liquid chlorine which was supplied to the customers in tonners and cylinders made of steel, which were accepted as durable and returnable containers. The assessee claimed deduction of Rs 100 in the case of tonners (800 to 1000 kgs capacity) and Rs 150 in the case of cylinders (20 to 100 kgs capacity) towards cost of packing on account of maintenance of cylinders/tonners, service charges, etc. The Tribunal found that the department accepts that the containers were durable and returnable and that their cost is not includible in the assessable value of chlorine as per Section 4(4) (d) (i). The Tribunal, therefore, held that the cost has to be the full cost of packing which should take in not only the initial purchase price of the container but also the further expenses on its maintenance and repairs. The said decision of the Tribunal has been affirmed in appeal in CCE v. Century Spg. and Mfg. Co. Ltd. 5. In the present case, as recorded by the Tribunal, the fact that the bottles are returnable and durable are not disputed. Before the Tribunal it was pointed out that the service charges pertain to the following activities : "After unloading of the empty bottles at a place about 100 yards outside the factory, the bottles are sorted brandwise, (sometimes the bottles get mixed with bottles of other manufacturers which are to be separated). Thereafter, the bottles are examined for any defects which a are also separated. Cleaning of the bottles is done chemically. These are then loaded in the trolleys, brought to the factory and placed in conveyors to automatic bottle-washing plant from where they come out after washing. Bottles are examined again in strong light to avoid contamination." * 6. The process referred to above relates to preparing the bottles that were used earlier to be reused for the purpose of bottling of the aerated water produced by the appellant. Since the aerated water has to be supplied in packed bottles only, the activities for which the appellant was claiming service charges related to the process of packing after the manufacture of aerated water. We find it difficult to appreciate how these activities can be treated as a part of the manufacturing process of aerated water. Since there is no dispute that the bottles are durable and returnable containers, the activities referred to above undertaken by the appellant to ensure that the empty bottles which have been received back are available for reuse for bottling of aerated water, have to be treated as part of the process of packing and not as part of the manufacturing process of aerated water. The position is not very different from that in the case of Century Spg. & Mfg. Ltd. 3 where the durable and returnable containers were used again for supply of gas and it was held that charges for maintenance and repairs of such containers were not includible in the assessable value of the gas. We are, therefore, unable to uphold the view of the majority in the Tribunal that the service charges claimed by the appellant have to be included in the assessable value | 1[ds]5. In the present case, as recorded by the Tribunal, the fact that the bottles are returnable and durable are not disputed. Before the Tribunal it was pointed out that the service charges pertain to the following activitiesunloading of the empty bottles at a place about 100 yards outside the factory, the bottles are sorted brandwise, (sometimes the bottles get mixed with bottles of other manufacturers which are to be separated). Thereafter, the bottles are examined for any defects which a are also separated. Cleaning of the bottles is done chemically. These are then loaded in the trolleys, brought to the factory and placed in conveyors to automatic bottle-washing plant from where they come out after washing. Bottles are examined again in strong light to avoid contamination."The process referred to above relates to preparing the bottles that were used earlier to be reused for the purpose of bottling of the aerated water produced by the appellant. Since the aerated water has to be supplied in packed bottles only, the activities for which the appellant was claiming service charges related to the process of packing after the manufacture of aerated water. We find it difficult to appreciate how these activities can be treated as a part of the manufacturing process of aerated water. Since there is no dispute that the bottles are durable and returnable containers, the activities referred to above undertaken by the appellant to ensure that the empty bottles which have been received back are available for reuse for bottling of aerated water, have to be treated as part of the process of packing and not as part of the manufacturing process of aerated water. The position is not very different from that in the case of Century Spg. & Mfg. Ltd. 3 where the durable and returnable containers were used again for supply of gas and it was held that charges for maintenance and repairs of such containers were not includible in the assessable value of the gas. We are, therefore, unable to uphold the view of the majority in the Tribunal that the service charges claimed by the appellant have to be included in the assessable value | 1 | 1,639 | 393 | ### 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:
bottling have to be considered a part of manufacturing process and the cost of the same has to be reckoned towards the manufacture of the appellants product. In view of the difference of opinion among the two learned Members, the matter was referred to the third Member of the Tribunal on the following point of difference "Whether in the facts and circumstances of the case, the service charges do not relate to the manufacture of aerated water, as claimed by the appellants, and are, therefore, to be excluded for arriving at the assessable value as held by Member (Judicial) or these relate to the manufacture of aerated water and are, therefore, to be included for arriving at the assessable value as held by Member (Technical)." * 2. The third learned Member of the Tribunal (Shri P. C. Jam) agreed with the view of the Technical Member and held that the service charges collected by the appellant in respect of the activities undertaken by them related to the manufacture of the excisable goods in question. In view of the majority opinion the Tribunal has held that the service charges, namely, for sorting out the printed bottles separating the broken bottles before they are sent to automatic bottle-washing plant relate to manufacture of aerated water and a are includible in the assessable value of aerated water. The appeal of the appellant as regards service charges was therefore, dismissed, but the appeal was allowed in respect of the rental charges and the matter was remitted to the Assistant Collector to verify the actual rental charges and redetermine the assessable value of aerated water for deducting the same from the price of the aerated water. Feeling aggrieved by the decision of the Tribunal, relating to inclusion of service charges in the price, the appellant has filed this appeal 3. Section 4 of the Act makes provision for valuation of excisable goods for the purpose of charging of excise duty in cases where under the Act duty of excise is chargeable on any excisable goods with reference to value. For the purpose of Section 4, the expression "value" is defined in clause (d) of Section 4(4). The relevant part of the said definition is produced as under "4. (4) (d) value in relation to any excisable goods, -(i) where the goods are delivered at the time of removal in a packed condition, includes the cost of such packing except the cost of the packing which is of a durable nature and is returnable by the buyer to the assessee. Explanation. -In this sub-clause packing means the wrapper, container, bobbin, pirn, spool, reel or warp beam or any other thing in which or on which the excisable goods are wrapped, contained or wound;" * 4. In the case of CCE v. Century Spg. and Mfg. Co. Ltd. 2 the assessee was manufacturer of liquid chlorine which was supplied to the customers in tonners and cylinders made of steel, which were accepted as durable and returnable containers. The assessee claimed deduction of Rs 100 in the case of tonners (800 to 1000 kgs capacity) and Rs 150 in the case of cylinders (20 to 100 kgs capacity) towards cost of packing on account of maintenance of cylinders/tonners, service charges, etc. The Tribunal found that the department accepts that the containers were durable and returnable and that their cost is not includible in the assessable value of chlorine as per Section 4(4) (d) (i). The Tribunal, therefore, held that the cost has to be the full cost of packing which should take in not only the initial purchase price of the container but also the further expenses on its maintenance and repairs. The said decision of the Tribunal has been affirmed in appeal in CCE v. Century Spg. and Mfg. Co. Ltd. 5. In the present case, as recorded by the Tribunal, the fact that the bottles are returnable and durable are not disputed. Before the Tribunal it was pointed out that the service charges pertain to the following activities : "After unloading of the empty bottles at a place about 100 yards outside the factory, the bottles are sorted brandwise, (sometimes the bottles get mixed with bottles of other manufacturers which are to be separated). Thereafter, the bottles are examined for any defects which a are also separated. Cleaning of the bottles is done chemically. These are then loaded in the trolleys, brought to the factory and placed in conveyors to automatic bottle-washing plant from where they come out after washing. Bottles are examined again in strong light to avoid contamination." * 6. The process referred to above relates to preparing the bottles that were used earlier to be reused for the purpose of bottling of the aerated water produced by the appellant. Since the aerated water has to be supplied in packed bottles only, the activities for which the appellant was claiming service charges related to the process of packing after the manufacture of aerated water. We find it difficult to appreciate how these activities can be treated as a part of the manufacturing process of aerated water. Since there is no dispute that the bottles are durable and returnable containers, the activities referred to above undertaken by the appellant to ensure that the empty bottles which have been received back are available for reuse for bottling of aerated water, have to be treated as part of the process of packing and not as part of the manufacturing process of aerated water. The position is not very different from that in the case of Century Spg. & Mfg. Ltd. 3 where the durable and returnable containers were used again for supply of gas and it was held that charges for maintenance and repairs of such containers were not includible in the assessable value of the gas. We are, therefore, unable to uphold the view of the majority in the Tribunal that the service charges claimed by the appellant have to be included in the assessable value
### Response:
1
### Explanation:
5. In the present case, as recorded by the Tribunal, the fact that the bottles are returnable and durable are not disputed. Before the Tribunal it was pointed out that the service charges pertain to the following activitiesunloading of the empty bottles at a place about 100 yards outside the factory, the bottles are sorted brandwise, (sometimes the bottles get mixed with bottles of other manufacturers which are to be separated). Thereafter, the bottles are examined for any defects which a are also separated. Cleaning of the bottles is done chemically. These are then loaded in the trolleys, brought to the factory and placed in conveyors to automatic bottle-washing plant from where they come out after washing. Bottles are examined again in strong light to avoid contamination."The process referred to above relates to preparing the bottles that were used earlier to be reused for the purpose of bottling of the aerated water produced by the appellant. Since the aerated water has to be supplied in packed bottles only, the activities for which the appellant was claiming service charges related to the process of packing after the manufacture of aerated water. We find it difficult to appreciate how these activities can be treated as a part of the manufacturing process of aerated water. Since there is no dispute that the bottles are durable and returnable containers, the activities referred to above undertaken by the appellant to ensure that the empty bottles which have been received back are available for reuse for bottling of aerated water, have to be treated as part of the process of packing and not as part of the manufacturing process of aerated water. The position is not very different from that in the case of Century Spg. & Mfg. Ltd. 3 where the durable and returnable containers were used again for supply of gas and it was held that charges for maintenance and repairs of such containers were not includible in the assessable value of the gas. We are, therefore, unable to uphold the view of the majority in the Tribunal that the service charges claimed by the appellant have to be included in the assessable value
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M/S.Rollatainers Ltd., Haryana Vs. The Union Of India | to printing of books, literature, newspapers and periodicals etc. The advanced Printing Industry covers a much wider field of activity than it did in the past. Can we, therefore, say that every material on which printing work is done becomes a product of the Printing Industry ? The answer has to be in the negative. An ordinary carton without any printing on it is a completed product and undisputably the product of Packaging Industry. The question for our consideration is, does it cease to be the product of Packaging Industry as and when some printing is done on the said carton ? We are of the view that to a common man in the trade and in common parlance a carton remains a carton whether it is a plain carton or a printed carton. The extreme contention that all products, on which some printing is done, are the products of the Printing Industry cannot be accepted. The Division Bench of the High Court has rightly rejected the contention on the following reasoning :- "In our view, it would be an extreme proposition to hold that all products on which some printing is done is a product of the printing industry. In that event, printed cloth would be a product of the printing industry and not of the textile industry. A metal can with printed material on it will similarly be a product of the printing industry and not of the textile industry. A metal can with printed material on it will similarly be a product of the printing industry and not the packaging industry. The same can be said of card-board packet and even wooden boxes over which some printing is done to identify the goods or its manufacturer. In our view, the mere fact that something is printed on a product by itself does not make it a product of the printing industry. A carton is a carton and has only one use, namely of packing a product to be sold in the market. The mere fact that something is printed on it does not change its essential nature or use. The learned Judge has observed that the end- use of a product is immaterial. In the case of a carton the question does not arise, because it has only one use and therefore any distinction between its intermediate use and end-use is unwarranted. In our view, the printed cartons are designed at times to make the product attractive for the purchaser, and at times to identify the goods and highlight its qualities, and at times to identify the manufacturer of the goods. All the same, the carton remains a carton and is used for the purpose of packaging." * 10. It was vehemently contended before us that the cost involved in printing a carton is much more than the price of the paper or other material used for making the carton. It was further urged that most of the stages through which the printed carton as a product is processed relate to printing and primarily the printing machines and presses are used in the process. It is thus contended that the product is of Printing Industry and not of Packaging Industry. The argument has been lucidly dealt with by the Division Bench of the High Court and rejected the following reasoning :- "The classification of manufactured goods cannot be dependent merely upon their place of production. The product wherever produced must be classified having regard to what it means and how it is understood in common parlance. The guiding factor is not where it is produced, but what is produced [see 1989 (43) ELT 175 (SC)]. There appears to be no principle on which a distinction can be drawn between an ordinary carton and a printed carton, and to hold that an ordinary carton is a product of a packaging industry, while a printed carton is a product of the printing industry, if it emerges in its final shape from a printing press. At best it can be said that with technological advancement, it has become possible to have composite industries which can provide a variety of services, not necessarily confined to a single industry as conventionally understood, and which may produce a variety of manufactured items. In such cases the products have to be classified having regard to their purpose and as they are understood in ordinary parlance. So viewed, a paper carton, whether printed or not must be classified as a product of the packaging industry, and not a product of the paper industry or printing industry. A carton is used for packing goods whether it is made of printed paper or not, and therefore the printing of cartons does not add to its essential function as a container. Mere printing does not make a carton. An ordinary man in the trade has no use for a printed paper, unless it can be given shape as a container in which he can pack his products. What makes it a carton is its capacity to contain which is, its essential characteristic and not the printing work on it, which is merely incidental. In our view, the fact that sometimes more money may be spent on printing than other things, will make no difference." * 11. We agree with the reasoning and the conclusions reached by the Division bench of the High Court. What is exempt under the Notification is the "Product" of the "Printing Industry". The "product" in this case is the carton. The Printing Industry by itself cannot bring the carton into existence. Any amount of fancy printing on a card-board would not make it a carton. In the process of manufacturing the printed cartons, the card-board has to be cut, printed, creased and given the shape of a carton by using paste or gum. Simply because there are expensive prints on the carton such a printed carton would not become the product of the Printing Industry. It shall remain the product of the Packaging Industry. | 0[ds]9. The literature referred to by the appellant only shows that the printing industry has advanced to such an extent that one can print on almost anything such as glass, metal or synthetic base. Earlier the printing activity was primarily confined to printing of books, literature, newspapers and periodicals etc. The advanced Printing Industry covers a much wider field of activity than it did in the past. Canwe, therefore, say that every material on which printing work is done becomes a product of the Printing Industry ?The answer has to be in the negative. An ordinary carton without any printing on it is a completed product and undisputably the product of Packaging Industry. The question for our consideration is, doesit cease to be the product of Packaging Industry as and when some printing is done on the said carton? We are of the view that to a common man in the trade and in common parlance a carton remains a carton whether it is a plain carton or a printed carton. The extreme contention that all products, on which some printing is done, are the products of the Printing Industry cannot beWe agree with the reasoning and the conclusions reached by the Division bench of the High Court. What is exempt under the Notification is the "Product" of the "Printing Industry". The "product" in this case is the carton. The Printing Industry by itself cannot bring the carton into existence. Any amount of fancy printing on awould not make it a carton. In the process of manufacturing the printed cartons, thehas to be cut, printed, creased and given the shape of a carton by using paste or gum. Simply because there are expensive prints on the carton such a printed carton would not become the product of the Printing Industry. It shall remain the product of the Packaging Industry. | 0 | 2,139 | 349 | ### Instruction:
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to printing of books, literature, newspapers and periodicals etc. The advanced Printing Industry covers a much wider field of activity than it did in the past. Can we, therefore, say that every material on which printing work is done becomes a product of the Printing Industry ? The answer has to be in the negative. An ordinary carton without any printing on it is a completed product and undisputably the product of Packaging Industry. The question for our consideration is, does it cease to be the product of Packaging Industry as and when some printing is done on the said carton ? We are of the view that to a common man in the trade and in common parlance a carton remains a carton whether it is a plain carton or a printed carton. The extreme contention that all products, on which some printing is done, are the products of the Printing Industry cannot be accepted. The Division Bench of the High Court has rightly rejected the contention on the following reasoning :- "In our view, it would be an extreme proposition to hold that all products on which some printing is done is a product of the printing industry. In that event, printed cloth would be a product of the printing industry and not of the textile industry. A metal can with printed material on it will similarly be a product of the printing industry and not of the textile industry. A metal can with printed material on it will similarly be a product of the printing industry and not the packaging industry. The same can be said of card-board packet and even wooden boxes over which some printing is done to identify the goods or its manufacturer. In our view, the mere fact that something is printed on a product by itself does not make it a product of the printing industry. A carton is a carton and has only one use, namely of packing a product to be sold in the market. The mere fact that something is printed on it does not change its essential nature or use. The learned Judge has observed that the end- use of a product is immaterial. In the case of a carton the question does not arise, because it has only one use and therefore any distinction between its intermediate use and end-use is unwarranted. In our view, the printed cartons are designed at times to make the product attractive for the purchaser, and at times to identify the goods and highlight its qualities, and at times to identify the manufacturer of the goods. All the same, the carton remains a carton and is used for the purpose of packaging." * 10. It was vehemently contended before us that the cost involved in printing a carton is much more than the price of the paper or other material used for making the carton. It was further urged that most of the stages through which the printed carton as a product is processed relate to printing and primarily the printing machines and presses are used in the process. It is thus contended that the product is of Printing Industry and not of Packaging Industry. The argument has been lucidly dealt with by the Division Bench of the High Court and rejected the following reasoning :- "The classification of manufactured goods cannot be dependent merely upon their place of production. The product wherever produced must be classified having regard to what it means and how it is understood in common parlance. The guiding factor is not where it is produced, but what is produced [see 1989 (43) ELT 175 (SC)]. There appears to be no principle on which a distinction can be drawn between an ordinary carton and a printed carton, and to hold that an ordinary carton is a product of a packaging industry, while a printed carton is a product of the printing industry, if it emerges in its final shape from a printing press. At best it can be said that with technological advancement, it has become possible to have composite industries which can provide a variety of services, not necessarily confined to a single industry as conventionally understood, and which may produce a variety of manufactured items. In such cases the products have to be classified having regard to their purpose and as they are understood in ordinary parlance. So viewed, a paper carton, whether printed or not must be classified as a product of the packaging industry, and not a product of the paper industry or printing industry. A carton is used for packing goods whether it is made of printed paper or not, and therefore the printing of cartons does not add to its essential function as a container. Mere printing does not make a carton. An ordinary man in the trade has no use for a printed paper, unless it can be given shape as a container in which he can pack his products. What makes it a carton is its capacity to contain which is, its essential characteristic and not the printing work on it, which is merely incidental. In our view, the fact that sometimes more money may be spent on printing than other things, will make no difference." * 11. We agree with the reasoning and the conclusions reached by the Division bench of the High Court. What is exempt under the Notification is the "Product" of the "Printing Industry". The "product" in this case is the carton. The Printing Industry by itself cannot bring the carton into existence. Any amount of fancy printing on a card-board would not make it a carton. In the process of manufacturing the printed cartons, the card-board has to be cut, printed, creased and given the shape of a carton by using paste or gum. Simply because there are expensive prints on the carton such a printed carton would not become the product of the Printing Industry. It shall remain the product of the Packaging Industry.
### Response:
0
### Explanation:
9. The literature referred to by the appellant only shows that the printing industry has advanced to such an extent that one can print on almost anything such as glass, metal or synthetic base. Earlier the printing activity was primarily confined to printing of books, literature, newspapers and periodicals etc. The advanced Printing Industry covers a much wider field of activity than it did in the past. Canwe, therefore, say that every material on which printing work is done becomes a product of the Printing Industry ?The answer has to be in the negative. An ordinary carton without any printing on it is a completed product and undisputably the product of Packaging Industry. The question for our consideration is, doesit cease to be the product of Packaging Industry as and when some printing is done on the said carton? We are of the view that to a common man in the trade and in common parlance a carton remains a carton whether it is a plain carton or a printed carton. The extreme contention that all products, on which some printing is done, are the products of the Printing Industry cannot beWe agree with the reasoning and the conclusions reached by the Division bench of the High Court. What is exempt under the Notification is the "Product" of the "Printing Industry". The "product" in this case is the carton. The Printing Industry by itself cannot bring the carton into existence. Any amount of fancy printing on awould not make it a carton. In the process of manufacturing the printed cartons, thehas to be cut, printed, creased and given the shape of a carton by using paste or gum. Simply because there are expensive prints on the carton such a printed carton would not become the product of the Printing Industry. It shall remain the product of the Packaging Industry.
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Workmen Of Shri Rangavilas Motors (P) Ltd.& Anr Vs. Shri Rangavilas Motors (P) Ltd. And Ors | placed before it to indicate that the Government have applied their mind to the applicability of the proviso to the facts of this case or have actually acted pursuant to the proviso in making the references to the Labour Court, and secondly, that there can be no doubt that more than one hundred persons are interested in and are therefore likely to be affected by the dispute in question. In our view it is not necessary that the order of reference should expressly state that it is because of the proviso that a reference is being made to the Labour Court, and if the reference can be justified on the facts, there is nothing in the Act which makes such a reference invalid. The second reason given by the High Court, with respect, is erroneous because it seems to have equated the words "interested" and "affected". It would be noticed that S. 10(1A). uses both the words "interested" or "affected". S. 10(5) also uses both the words "interested" or "affected". It seems to us that there is a difference in the import of the words "interested" or "affected". The Union which sponsors the cause of an individual workman is interested in the dispute but the workmen who are the members of the Union are not necessarily affected by the dispute. The dispute in this case was regarding the validity of the transfer and consequent removal of the appellant. The other workmen would naturally be interested in the dispute but they are not affected by this dispute. In our opinion, the High Court erred in holding that the first proviso to S. 10(1)(d) did not apply to the facts of this case. In view of our decision on this point, it is not necessary to go into the question whether the points in dispute fell within the second or the third Schedule to the Act. 14. Therefore, the appeal must succeed unless the Company can satisfy us that the points decided against it should have been decided in its favour. This takes us to the other points. Mr. O. P. Malhotra strongly urges that the State Government of Mysore was not the appropriate Government to make the reference. He says that although the dispute started at Bangalore, the resolution sponsoring this dispute was passed in Krishnagiri, and, that the proper test to be applied in the case of individual disputes is where the dispute has been sponsored. It seems to us that on the facts of this case it is clear that there was a separate establishment at Bangalore and Mahalingam was working there. There were a number of other workmen working in this place. The order of transfer, it is true, was made in Krishnagiri at the Head-office, but the order was to operate on a workman working in Bangalore. In our view the High Court was right in holding that the proper question to raise is : where did the dispute arise ? Ordinarily, if there is a separate establishment and the workman is working in that establishment, the dispute would arise at that place. As the High Court observed, there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arose. This Court in Indian Cable Co. Ltd. v. Its Workmen, (1962) I Lab LJ 409 (SC) held as follows:"The Act contained no provisions bearing on this question, which must, consequently, be decided on the principles governing the jurisdiction of Courts to entertain actions or proceedings. Dealing with a similar question under the provisions of the Bombay Industrial Relations Act, 1946, Chagla, C. J., observed in Lalbhai Tricumlal Mills Ltd. v. Vin, 1956-1 Lab LJ 557, 558 : (AIR 1955 Bom 463 at p. 464) : "But what we are concerned with to decide is : where did the dispute substantially arise ? Now, the Act does not deal with the cause of action, nor does it indicate what factors will confer jurisdiction upon the labour Court. But applying the well-known tests of jurisdiction, a Court or Tribunal would have jurisdiction if the parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction". In our opinion, those principles are applicable for deciding which of the States has jurisdiction to make a reference under S. 10 of the Act". Applying the above principles to the facts of this case it is quite clear that the subject-matter of the dispute in this case substantially arose within the jurisdiction of the Mysore Government. 15. Mr. Malhotra further urges that the High Court erred in holding that it was an industrial dispute. We see no force in this contention. The High Court rightly observed that once the findings of fact recorded by the Labour Court are accepted, there is no doubt in law that in the circumstances of this case, what was originally an individual grievance of Mahaligam did assume at the time the reference was made by the Government, the character of an industrial dispute. 16. Mr. Malhotra urges that the finding of the Labour Court that the transfer was illegal was perverse. It is not necessary to go into this question because once it is held that there is an agreement between the Company and Mahalingam that he could not be transferred from Bangalore, the transfer would be bad. The Labour Court had observed that one of the terms of agreement was that the Company had agreed not to transfer Mahalingam to an place out of Bangalore for a period of ten years; the Company had transferred Mahalingam from Bangalore to the Head Office at Krishnagiri and this action of the Company was in contravention of the terms of the agreement. 17. Then Mr. Malhotra tried to urge the fifth point formulated by the High Court. This point was not taken before the Labour Court and we did not allow him to raise this point. | 1[ds]We have already reproduced the order of reference and,in our opinion, there is force in what Mr. Ramamurti urges. It seems to us that the order of reference is quite clear if regard is had to the words "re-instatement in Bangalore branch with benefits of back wages if the words "with benefits of back wages" are not considered, and with respect, the High Court did not consider them, the High Courts conclusion might possibly be justified. It seems to us that by the time the reference came to be made everybody knew that Mahalingam had been removed from service. The words "with benefits of back wages" coupled with the word "re-instatement" are appropriate only to a case of removal and not to a case of transfer. On the facts of this case it is quite clear that the contention of Mahalingam was that the transfer was illegal and if the transfer was illegal, his removal from service would fall automatically with the finding that the transfer was illegal, and one of the appropriate reliefs that would be given would be re-instatement in the Bangalore Branch with benefits of back wages. In our view it is because of the above considerations that the word removal was not expressly mentioned12. We are unable to appreciate how this sub-section has any relevance to the question of construction of the order of reference made by the Government. It is true that the points in dispute must be specified, but the point with which we are concerned is, whether as a matter of construction the point in dispute has been specified or not, and according to us the dispute regarding removal has been specifiedIn our opinion, the High Court erred in holding that the first proviso to S. 10(1)(d) did not apply to the facts of this case. In view of our decision on this point, it is not necessary to go into the question whether the points in dispute fell within the second or the third Schedule to the Act14. Therefore, the appeal must succeed unless the Company can satisfy us that the points decided against it should have been decided in its favour. This takes us to the other pointsMr. O. P. Malhotra strongly urges that the State Government of Mysore was not the appropriate Government to make the reference. He says that although the dispute started at Bangalore, the resolution sponsoring this dispute was passed in Krishnagiri, and, that the proper test to be applied in the case of individual disputes is where the dispute has been sponsored. It seems to us that on the facts of this case it is clear that there was a separate establishment at Bangalore and Mahalingam was working there. There were a number of other workmen working in this place. The order of transfer, it is true, was made in Krishnagiri at the Head-office, but the order was to operate on a workman working in Bangalore. In our view the High Court was right in holding that the proper question to raise is : where did the dispute arise ? Ordinarily, if there is a separate establishment and the workman is working in that establishment, the dispute would arise at that placeApplying the above principles to the facts of this case it is quite clear that the subject-matter of the dispute in this case substantially arose within the jurisdiction of the Mysore Government15. Mr. Malhotra further urges that the High Court erred in holding that it was an industrial dispute. We see no force in this contention. The High Court rightly observed that once the findings of fact recorded by the Labour Court are accepted, there is no doubt in law that in the circumstances of this case, what was originally an individual grievance of Mahaligam did assume at the time the reference was made by the Government, the character of an industrial dispute16. Mr. Malhotra urges that the finding of the Labour Court that the transfer was illegal was perverse. It is not necessary to go into this question because once it is held that there is an agreement between the Company and Mahalingam that he could not be transferred from Bangalore, the transfer would be bad. The Labour Court had observed that one of the terms of agreement was that the Company had agreed not to transfer Mahalingam to an place out of Bangalore for a period of ten years; the Company had transferred Mahalingam from Bangalore to the Head Office at Krishnagiri and this action of the Company was in contravention of the terms of the agreement17. Then Mr. Malhotra tried to urge the fifth point formulated by the High Court. This point was not taken before the Labour Court and we did not allow him to raise this point. | 1 | 3,030 | 866 | ### Instruction:
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placed before it to indicate that the Government have applied their mind to the applicability of the proviso to the facts of this case or have actually acted pursuant to the proviso in making the references to the Labour Court, and secondly, that there can be no doubt that more than one hundred persons are interested in and are therefore likely to be affected by the dispute in question. In our view it is not necessary that the order of reference should expressly state that it is because of the proviso that a reference is being made to the Labour Court, and if the reference can be justified on the facts, there is nothing in the Act which makes such a reference invalid. The second reason given by the High Court, with respect, is erroneous because it seems to have equated the words "interested" and "affected". It would be noticed that S. 10(1A). uses both the words "interested" or "affected". S. 10(5) also uses both the words "interested" or "affected". It seems to us that there is a difference in the import of the words "interested" or "affected". The Union which sponsors the cause of an individual workman is interested in the dispute but the workmen who are the members of the Union are not necessarily affected by the dispute. The dispute in this case was regarding the validity of the transfer and consequent removal of the appellant. The other workmen would naturally be interested in the dispute but they are not affected by this dispute. In our opinion, the High Court erred in holding that the first proviso to S. 10(1)(d) did not apply to the facts of this case. In view of our decision on this point, it is not necessary to go into the question whether the points in dispute fell within the second or the third Schedule to the Act. 14. Therefore, the appeal must succeed unless the Company can satisfy us that the points decided against it should have been decided in its favour. This takes us to the other points. Mr. O. P. Malhotra strongly urges that the State Government of Mysore was not the appropriate Government to make the reference. He says that although the dispute started at Bangalore, the resolution sponsoring this dispute was passed in Krishnagiri, and, that the proper test to be applied in the case of individual disputes is where the dispute has been sponsored. It seems to us that on the facts of this case it is clear that there was a separate establishment at Bangalore and Mahalingam was working there. There were a number of other workmen working in this place. The order of transfer, it is true, was made in Krishnagiri at the Head-office, but the order was to operate on a workman working in Bangalore. In our view the High Court was right in holding that the proper question to raise is : where did the dispute arise ? Ordinarily, if there is a separate establishment and the workman is working in that establishment, the dispute would arise at that place. As the High Court observed, there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arose. This Court in Indian Cable Co. Ltd. v. Its Workmen, (1962) I Lab LJ 409 (SC) held as follows:"The Act contained no provisions bearing on this question, which must, consequently, be decided on the principles governing the jurisdiction of Courts to entertain actions or proceedings. Dealing with a similar question under the provisions of the Bombay Industrial Relations Act, 1946, Chagla, C. J., observed in Lalbhai Tricumlal Mills Ltd. v. Vin, 1956-1 Lab LJ 557, 558 : (AIR 1955 Bom 463 at p. 464) : "But what we are concerned with to decide is : where did the dispute substantially arise ? Now, the Act does not deal with the cause of action, nor does it indicate what factors will confer jurisdiction upon the labour Court. But applying the well-known tests of jurisdiction, a Court or Tribunal would have jurisdiction if the parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction". In our opinion, those principles are applicable for deciding which of the States has jurisdiction to make a reference under S. 10 of the Act". Applying the above principles to the facts of this case it is quite clear that the subject-matter of the dispute in this case substantially arose within the jurisdiction of the Mysore Government. 15. Mr. Malhotra further urges that the High Court erred in holding that it was an industrial dispute. We see no force in this contention. The High Court rightly observed that once the findings of fact recorded by the Labour Court are accepted, there is no doubt in law that in the circumstances of this case, what was originally an individual grievance of Mahaligam did assume at the time the reference was made by the Government, the character of an industrial dispute. 16. Mr. Malhotra urges that the finding of the Labour Court that the transfer was illegal was perverse. It is not necessary to go into this question because once it is held that there is an agreement between the Company and Mahalingam that he could not be transferred from Bangalore, the transfer would be bad. The Labour Court had observed that one of the terms of agreement was that the Company had agreed not to transfer Mahalingam to an place out of Bangalore for a period of ten years; the Company had transferred Mahalingam from Bangalore to the Head Office at Krishnagiri and this action of the Company was in contravention of the terms of the agreement. 17. Then Mr. Malhotra tried to urge the fifth point formulated by the High Court. This point was not taken before the Labour Court and we did not allow him to raise this point.
### Response:
1
### Explanation:
We have already reproduced the order of reference and,in our opinion, there is force in what Mr. Ramamurti urges. It seems to us that the order of reference is quite clear if regard is had to the words "re-instatement in Bangalore branch with benefits of back wages if the words "with benefits of back wages" are not considered, and with respect, the High Court did not consider them, the High Courts conclusion might possibly be justified. It seems to us that by the time the reference came to be made everybody knew that Mahalingam had been removed from service. The words "with benefits of back wages" coupled with the word "re-instatement" are appropriate only to a case of removal and not to a case of transfer. On the facts of this case it is quite clear that the contention of Mahalingam was that the transfer was illegal and if the transfer was illegal, his removal from service would fall automatically with the finding that the transfer was illegal, and one of the appropriate reliefs that would be given would be re-instatement in the Bangalore Branch with benefits of back wages. In our view it is because of the above considerations that the word removal was not expressly mentioned12. We are unable to appreciate how this sub-section has any relevance to the question of construction of the order of reference made by the Government. It is true that the points in dispute must be specified, but the point with which we are concerned is, whether as a matter of construction the point in dispute has been specified or not, and according to us the dispute regarding removal has been specifiedIn our opinion, the High Court erred in holding that the first proviso to S. 10(1)(d) did not apply to the facts of this case. In view of our decision on this point, it is not necessary to go into the question whether the points in dispute fell within the second or the third Schedule to the Act14. Therefore, the appeal must succeed unless the Company can satisfy us that the points decided against it should have been decided in its favour. This takes us to the other pointsMr. O. P. Malhotra strongly urges that the State Government of Mysore was not the appropriate Government to make the reference. He says that although the dispute started at Bangalore, the resolution sponsoring this dispute was passed in Krishnagiri, and, that the proper test to be applied in the case of individual disputes is where the dispute has been sponsored. It seems to us that on the facts of this case it is clear that there was a separate establishment at Bangalore and Mahalingam was working there. There were a number of other workmen working in this place. The order of transfer, it is true, was made in Krishnagiri at the Head-office, but the order was to operate on a workman working in Bangalore. In our view the High Court was right in holding that the proper question to raise is : where did the dispute arise ? Ordinarily, if there is a separate establishment and the workman is working in that establishment, the dispute would arise at that placeApplying the above principles to the facts of this case it is quite clear that the subject-matter of the dispute in this case substantially arose within the jurisdiction of the Mysore Government15. Mr. Malhotra further urges that the High Court erred in holding that it was an industrial dispute. We see no force in this contention. The High Court rightly observed that once the findings of fact recorded by the Labour Court are accepted, there is no doubt in law that in the circumstances of this case, what was originally an individual grievance of Mahaligam did assume at the time the reference was made by the Government, the character of an industrial dispute16. Mr. Malhotra urges that the finding of the Labour Court that the transfer was illegal was perverse. It is not necessary to go into this question because once it is held that there is an agreement between the Company and Mahalingam that he could not be transferred from Bangalore, the transfer would be bad. The Labour Court had observed that one of the terms of agreement was that the Company had agreed not to transfer Mahalingam to an place out of Bangalore for a period of ten years; the Company had transferred Mahalingam from Bangalore to the Head Office at Krishnagiri and this action of the Company was in contravention of the terms of the agreement17. Then Mr. Malhotra tried to urge the fifth point formulated by the High Court. This point was not taken before the Labour Court and we did not allow him to raise this point.
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Ranjit Singh And Others Vs. State Of Punjab And Others(And Connected Appeals) | estate within the meaning of Art. 31-A(2)(b) of the Constitution. The Kochuni case (1960) 3 SCR 887 : (AIR 1960 SC 1080 ) was decided on May 4, 1960 and the decision in the Assam case was given on April 4, 1961 but there is no mention of the dicta in the former case. It was held that the rights which were extinguished undoubtedly constituted "rights in relation to an estate" and Mr. N. C. Chatterjee who argued the case, conceded that this was so (see at p.730) (of SCR) : (at p. 140 of AIR). The same conclusion regarding the meaning of the word "modification was reached in Burrakur Coal Co. Ltd. v.Union of India, (1962) 1 SCR 44 at p. 61 : (AIR 1961 SC 954 ) without adverting to Kochuni case, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ). See also State of Bihar v. Rameshwar Pratap Narain Singh, (1962) 2 SCR 382 : (AIR 1961 SC 1649 ) and State of Bihar v. Umesh Jha, (1962) 2 SCR 687 : (AIR 1962 SC 50 ). In the latter a provision of the Bihar Land Reforms Act 1950, as amended by the Bihar Land Reforms (Amendment) Act, 1959 which empowered the Collector to annual anticipatory transfer of land designed to defeat the object of the Act was held to be protected by Art. 31-A, though the section by itself did not provide for the extinguishment or modification of any rights in an estate. It was justified as an integral part of a statute which did so and thus received the protection of Art. 31-A along with the parent Act.18. From a review of these authorities it follows that when the Punjab High Court decided these cases on the authority of Jagat Singhs case, 64 Pun LR 241 : (AIR 1962 Punj 221 (FB) the view taken in this Court was in favour of giving a large and liberal meaning to the terms estate rights in an estate and extinguishment and modification of such rights in Art. 31-A. No doubt Kochunis case, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ) considered a bare transfer of the rights of the sthanee to the tarwad without alteration of the tenure and without any pretence of agrarian reform, as not one contemplated by Art. 31-A however liberally construed. But that was a special case and we cannot apply it to cases where the general scheme of legislation is definitely agrarian reform and under its provisions something ancillary thereto in the interests of rural economy, has to be undertaken to give full effect to the reforms. In our judgment the High Court was right in not applying the strict rule in Kochunis case, (1960) 3 SCR 887 : (AIR 1960 SC 1980) to the facts here.19. The High Court was also right in its view that the proposed changes in the shamlat deh and abadi deh were included in the general scheme of planning of rural areas and the productive utilisation of vacant and waste lands. The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few, on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc. enure for the benefit of rural population and must be considered to be essential part of the redistribution of holdings and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands. Further, the village Panchayat is an authority for purposes of Part III as was conceded before us and it has the protection of Art. 31-A because of this character even if the taking over of shamlat deh amounts to acquisition. In our opinion, the High Court was right in deciding as it did on this part of the case.20. With respect to abadi deh the same reasoning must apply. The settling of a body of agricultural artisans (such as the village carpenter, the village blacksmith, the village tanner, farrier, wheelwright, barber, washerman etc. etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that India lives in villages and a scheme to make villages self-sufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate. The four Acts, namely, the Consolidation Act, the Village Panchayat Act, the Common Lands Regulation Act and the Security of Tenure Act are a part of a general scheme of reforms and any modification of rights such as the present has the protection of Art. 31-A. The High Court was thus right in its conclusion on this part of the case also.21. In our opinion these appeals must fail. We, however, make it clear that by reason of the circumstances which have supervened we have done no more than examine the correctness of the decisions under appeal (particularly the Full Bench decision in Jagat Singhs case, 64 Pun LR 241 : (AIR 1962 Punj 221 FB) which was followed in them) in the light of facts and law present to the mind of the Full Bench. For obvious reasons we have not strayed beyond that limit but if we have expressed any opinion which seems to bear on the Seventeenth Amendment, it should not be regarded as deliberate or binding. | 0[ds]From a review of these authorities it follows that when the Punjab High Court decided these cases on the authority of Jagat Singhs case, 64 Pun LR 241 : (AIR 1962 Punj 221 (FB) the view taken in this Court was in favour of giving a large and liberal meaning to the terms estate rights in an estate and extinguishment and modification of such rights in Art. 31-A. No doubt Kochunis case, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ) considered a bare transfer of the rights of the sthanee to the tarwad without alteration of the tenure and without any pretence of agrarian reform, as not one contemplated by Art. 31-A however liberally construed. But that was a special case and we cannot apply it to cases where the general scheme of legislation is definitely agrarian reform and under its provisions something ancillary thereto in the interests of rural economy, has to be undertaken to give full effect to the reforms. In our judgment the High Court was right in not applying the strict rule in Kochunis case, (1960) 3 SCR 887 : (AIR 1960 SC 1980) to the facts here.The High Court was also right in its view that the proposed changes in the shamlat deh and abadi deh were included in the general scheme of planning of rural areas and the productive utilisation of vacant and waste lands. The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few, on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc. enure for the benefit of rural population and must be considered to be essential part of the redistribution of holdings and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands. Further, the village Panchayat is an authority for purposes of Part III as was conceded before us and it has the protection of Art. 31-A because of this character even if the taking over of shamlat deh amounts to acquisition. In our opinion, the High Court was right in deciding as it did on this part of the case.With respect to abadi deh the same reasoning must apply. The settling of a body of agricultural artisans (such as the village carpenter, the village blacksmith, the village tanner, farrier, wheelwright, barber, washerman etc. etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that India lives in villages and a scheme to make villages self-sufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate. The four Acts, namely, the Consolidation Act, the Village Panchayat Act, the Common Lands Regulation Act and the Security of Tenure Act are a part of a general scheme of reforms and any modification of rights such as the present has the protection of Art. 31-A. The High Court was thus right in its conclusion on this part of the case also.In our opinion these appeals must fail. We, however, make it clear that by reason of the circumstances which have supervened we have done no more than examine the correctness of the decisions under appeal (particularly the Full Bench decision in Jagat Singhs case, 64 Pun LR 241 : (AIR 1962 Punj 221 FB) which was followed in them) in the light of facts and law present to the mind of the Full Bench. For obvious reasons we have not strayed beyond that limit but if we have expressed any opinion which seems to bear on the Seventeenth Amendment, it should not be regarded as deliberate or binding. | 0 | 5,744 | 798 | ### Instruction:
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estate within the meaning of Art. 31-A(2)(b) of the Constitution. The Kochuni case (1960) 3 SCR 887 : (AIR 1960 SC 1080 ) was decided on May 4, 1960 and the decision in the Assam case was given on April 4, 1961 but there is no mention of the dicta in the former case. It was held that the rights which were extinguished undoubtedly constituted "rights in relation to an estate" and Mr. N. C. Chatterjee who argued the case, conceded that this was so (see at p.730) (of SCR) : (at p. 140 of AIR). The same conclusion regarding the meaning of the word "modification was reached in Burrakur Coal Co. Ltd. v.Union of India, (1962) 1 SCR 44 at p. 61 : (AIR 1961 SC 954 ) without adverting to Kochuni case, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ). See also State of Bihar v. Rameshwar Pratap Narain Singh, (1962) 2 SCR 382 : (AIR 1961 SC 1649 ) and State of Bihar v. Umesh Jha, (1962) 2 SCR 687 : (AIR 1962 SC 50 ). In the latter a provision of the Bihar Land Reforms Act 1950, as amended by the Bihar Land Reforms (Amendment) Act, 1959 which empowered the Collector to annual anticipatory transfer of land designed to defeat the object of the Act was held to be protected by Art. 31-A, though the section by itself did not provide for the extinguishment or modification of any rights in an estate. It was justified as an integral part of a statute which did so and thus received the protection of Art. 31-A along with the parent Act.18. From a review of these authorities it follows that when the Punjab High Court decided these cases on the authority of Jagat Singhs case, 64 Pun LR 241 : (AIR 1962 Punj 221 (FB) the view taken in this Court was in favour of giving a large and liberal meaning to the terms estate rights in an estate and extinguishment and modification of such rights in Art. 31-A. No doubt Kochunis case, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ) considered a bare transfer of the rights of the sthanee to the tarwad without alteration of the tenure and without any pretence of agrarian reform, as not one contemplated by Art. 31-A however liberally construed. But that was a special case and we cannot apply it to cases where the general scheme of legislation is definitely agrarian reform and under its provisions something ancillary thereto in the interests of rural economy, has to be undertaken to give full effect to the reforms. In our judgment the High Court was right in not applying the strict rule in Kochunis case, (1960) 3 SCR 887 : (AIR 1960 SC 1980) to the facts here.19. The High Court was also right in its view that the proposed changes in the shamlat deh and abadi deh were included in the general scheme of planning of rural areas and the productive utilisation of vacant and waste lands. The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few, on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc. enure for the benefit of rural population and must be considered to be essential part of the redistribution of holdings and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands. Further, the village Panchayat is an authority for purposes of Part III as was conceded before us and it has the protection of Art. 31-A because of this character even if the taking over of shamlat deh amounts to acquisition. In our opinion, the High Court was right in deciding as it did on this part of the case.20. With respect to abadi deh the same reasoning must apply. The settling of a body of agricultural artisans (such as the village carpenter, the village blacksmith, the village tanner, farrier, wheelwright, barber, washerman etc. etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that India lives in villages and a scheme to make villages self-sufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate. The four Acts, namely, the Consolidation Act, the Village Panchayat Act, the Common Lands Regulation Act and the Security of Tenure Act are a part of a general scheme of reforms and any modification of rights such as the present has the protection of Art. 31-A. The High Court was thus right in its conclusion on this part of the case also.21. In our opinion these appeals must fail. We, however, make it clear that by reason of the circumstances which have supervened we have done no more than examine the correctness of the decisions under appeal (particularly the Full Bench decision in Jagat Singhs case, 64 Pun LR 241 : (AIR 1962 Punj 221 FB) which was followed in them) in the light of facts and law present to the mind of the Full Bench. For obvious reasons we have not strayed beyond that limit but if we have expressed any opinion which seems to bear on the Seventeenth Amendment, it should not be regarded as deliberate or binding.
### Response:
0
### Explanation:
From a review of these authorities it follows that when the Punjab High Court decided these cases on the authority of Jagat Singhs case, 64 Pun LR 241 : (AIR 1962 Punj 221 (FB) the view taken in this Court was in favour of giving a large and liberal meaning to the terms estate rights in an estate and extinguishment and modification of such rights in Art. 31-A. No doubt Kochunis case, (1960) 3 SCR 887 : (AIR 1960 SC 1080 ) considered a bare transfer of the rights of the sthanee to the tarwad without alteration of the tenure and without any pretence of agrarian reform, as not one contemplated by Art. 31-A however liberally construed. But that was a special case and we cannot apply it to cases where the general scheme of legislation is definitely agrarian reform and under its provisions something ancillary thereto in the interests of rural economy, has to be undertaken to give full effect to the reforms. In our judgment the High Court was right in not applying the strict rule in Kochunis case, (1960) 3 SCR 887 : (AIR 1960 SC 1980) to the facts here.The High Court was also right in its view that the proposed changes in the shamlat deh and abadi deh were included in the general scheme of planning of rural areas and the productive utilisation of vacant and waste lands. The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few, on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc. enure for the benefit of rural population and must be considered to be essential part of the redistribution of holdings and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands. Further, the village Panchayat is an authority for purposes of Part III as was conceded before us and it has the protection of Art. 31-A because of this character even if the taking over of shamlat deh amounts to acquisition. In our opinion, the High Court was right in deciding as it did on this part of the case.With respect to abadi deh the same reasoning must apply. The settling of a body of agricultural artisans (such as the village carpenter, the village blacksmith, the village tanner, farrier, wheelwright, barber, washerman etc. etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that India lives in villages and a scheme to make villages self-sufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate. The four Acts, namely, the Consolidation Act, the Village Panchayat Act, the Common Lands Regulation Act and the Security of Tenure Act are a part of a general scheme of reforms and any modification of rights such as the present has the protection of Art. 31-A. The High Court was thus right in its conclusion on this part of the case also.In our opinion these appeals must fail. We, however, make it clear that by reason of the circumstances which have supervened we have done no more than examine the correctness of the decisions under appeal (particularly the Full Bench decision in Jagat Singhs case, 64 Pun LR 241 : (AIR 1962 Punj 221 FB) which was followed in them) in the light of facts and law present to the mind of the Full Bench. For obvious reasons we have not strayed beyond that limit but if we have expressed any opinion which seems to bear on the Seventeenth Amendment, it should not be regarded as deliberate or binding.
|
M/S. Transmission Corporation Of A.P.Ltd Vs. M/S. Lanco Kondapalli Power Pvt. Ltd | interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted." [See also M/s Power Control Appliances and Others v. Sumeet Machines Pvt. Ltd. [(1994) 2 SCC 448] . 50. The interim direction ordinarily would precede finding of a prima facie case. When existence of a prima facie case is established, the court shall consider the other relevant factors, namely, balance of convenience and irreparable injuries. The High Court in its impugned judgment although not directly but indirectly has considered this aspect of the matter when on merit it noticed that the Appellant has raised a dispute as regard payment of an excess amount of Rs.35 crores although according to the Respondent a sum of Rs.132 crores is due to it from the Appellant and the Appellant had been paying the amount for the last two years as per the contract.51. Conduct of the parties is also a relevant factor. If the parties had been acting in a particular manner for a long time upon interpreting the terms and conditions of the contract, if pending determination of the lis, an order is passed that the parties would continue to do so, the same would not render the decision as an arbitrary one, as was contended by Mr. Rao. Even the Appellant had prayed for adjudication at the hands of the Commission in the same manner. Thus, it itself thought that the final relief would be granted only by the Arbitrator. 52. The Commission is yet to apply its mind. Even before the Commission, the Appellant has not made any application for a direction in terms of sub-section (2) of Section 94 of the Act. 53. The Respondent has installed the Power Generation Plant. It has continuously been supplying electrical energy to the Appellant. Indisputably, it has to discharge its contractual obligation. The Appellant being the only consumer, the Respondent has no other option but to supply electrical energy to it. In the event, the dispute is referred to the arbitrator, the equity between the parties can be adjusted. Without going into the correctness or otherwise of the claim of the Respondent, we may notice, that according to it, the Appellant owes a hefty sum of Rs.132 crores to it. According to the Appellant, in the event, the disputes and differences between the parties are determined in its favour, it may be held, that it has paid an excess sum of Rs.35 crores only.54. Clause 2 of Article 14 postulates that pending arbitration, the rights and obligations of the parties shall remain in full force and effect pending the award in such arbitration proceedings, which award shall determine whether and when termination of the said agreement if irrelevant shall become effective.55. It is now well-settled that this Court would not interfere with an order of the High Court only because it will be lawful to do so. Article 136 of the Constitution vests this Court with a discretionary jurisdiction. In a given case, it may or may not exercise its power. The question came up for consideration before this Court in Chandra Singh and Others v. State of Rajasthan and Another [(2003) 6 SCC 545] wherein it was observed: "42. In any event, even assuming that there is some force in the contention of the appellants, this Court will be justified in following Taherakhatoon v. Salambin Mohd. wherein this Court declared that even if the appellants contention is right in law having regard to the overall circumstances of the case, this Court would be justified in declining to grant relief under Article 136 while declaring the law in favour of the appellants." [See also State of Punjab v. Savinderjit Kaur, (2004) 4 SCC 58 ] 56. The said principle was reiterated in N.K. Prasada v. Government of India and Others [(2004) 6 SCC 299] stating: "It is trite that in a given case, the Court may refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution." 56. In Inder Parkash Gupta v. State of J&K and Others [(2004) 6 SCC 786] , it was stated: "42. In ordinary course we would have allowed the appeal but we cannot lose sight of the fact that the selections had been made in the year 1994. A valuable period of 10 years has elapsed. The private respondents have been working in their posts for the last 10 years. It is trite that with a view to do complete justice between the parties, this Court in a given case may not exercise its jurisdiction under Article 136 of the Constitution of India." 57. The same principle has been reiterated in State of Uttaranchal Through Collector, Dehradun and Another v. Ajit Singh Bhola and Another [(2004) 6 SCC 800] wherein it was stated: "9 - Having regard to the manner in which the District Magistrate took over possession of the premises, which appears to us as at present advised, to be high-handed, arbitrary and without any legal sanction we are not persuaded to exercise our discretion under Article 136 of the Constitution of India to set aside the interim order passed by the High Court. It is well settled that this Court will not exercise its discretion and quash an order which appears to be illegal, if its effect is to revive another illegal order."58. We, therefore, are of the opinion that it is not a fit case where interference with the High Courts judgment would be a proper exercise of jurisdiction under Article 136 of the Constitution of India. | 0[ds]24. It is not in dispute that the Commission was constituted in terms of the Act. Section 37 of the said Act contains a non-obstante clause stating that notwithstanding anything contained in the 1996 Act, any dispute arising between the licensees shall be referred to the Commission. The Commission may proceed to act as arbitrator or nominate arbitrator or arbitrators to adjudicate and settle such disputes. Section 28 of the 1998 Act empowers the Commission to issue an interim order as it deems proper for securing compliance if it is satisfied that a licensee is contravening or is likely to contravene any relevant condition or requirement of the licence.The Appellant is a licensee within the meaning of both the 1998 Act and the 2003 Act.29. The question as to whether the Respondent should have taken a licence or permit under the 2003 Act or not is not a matter which requires our immediate attention. The Appellant is a licensee and the Respondent is a generating company in terms of the provisions of the 2003 Act. Section 37 of the 1998 Act deals with disputes between the licensees.The learned Counsel for the parties, as noticed hereinbefore, have argued before us on the interpretation of the provisions of the relevant statutes and agreement for determining the effect and purport thereof.32. As at present advised, however, we refrain ourselves from expressing any opinion one way or the other having regard to the fact that the matter ultimately must receive a detailed consideration at the hands of the High Court both in the writ petition as also in the application filed by the Respondent under Section 11 of the 1996 Act..45. We have referred to Firm Ashok Traders (supra) not because we agree with the principle laid down therein but only to suggest that Section 9 of the 1996 Act should be applied so that status quo may be directed to be maintained having regard to the fact that the parties understood the workability of the agreement in a particular manner.46. A writ court can also grant injunction in exercise of its power under Article 226 of the Constitution of India. If injunction is refused in this proceeding, the interim order passed in the writ proceedings shall continue. It may give rise to a stalemate. It may violate the well-known rule of judicial comity.The High Court, therefore, while noticing the interim order passed in the writ proceedings may have the said principle in mind.The interim direction ordinarily would precede finding of a prima facie case. When existence of a prima facie case is established, the court shall consider the other relevant factors, namely, balance of convenience and irreparable injuries. The High Court in its impugned judgment although not directly but indirectly has considered this aspect of the matter when on merit it noticed that the Appellant has raised a dispute as regard payment of an excess amount of Rs.35 crores although according to the Respondent a sum of Rs.132 crores is due to it from the Appellant and the Appellant had been paying the amount for the last two years as per the contract.51. Conduct of the parties is also a relevant factor. If the parties had been acting in a particular manner for a long time upon interpreting the terms and conditions of the contract, if pending determination of the lis, an order is passed that the parties would continue to do so, the same would not render the decision as an arbitrary one, as was contended by Mr. Rao. Even the Appellant had prayed for adjudication at the hands of the Commission in the same manner. Thus, it itself thought that the final relief would be granted only by the Arbitrator.The Respondent has installed the Power Generation Plant. It has continuously been supplying electrical energy to the Appellant. Indisputably, it has to discharge its contractual obligation. The Appellant being the only consumer, the Respondent has no other option but to supply electrical energy to it. In the event, the dispute is referred to the arbitrator, the equity between the parties can be adjusted. Without going into the correctness or otherwise of the claim of the Respondent, we may notice, that according to it, the Appellant owes a hefty sum of Rs.132 crores to it. According to the Appellant, in the event, the disputes and differences between the parties are determined in its favour, it may be held, that it has paid an excess sum of Rs.35 crores only.54. Clause 2 of Article 14 postulates that pending arbitration, the rights and obligations of the parties shall remain in full force and effect pending the award in such arbitration proceedings, which award shall determine whether and when termination of the said agreement if irrelevant shall become effective.55. It is now well-settled that this Court would not interfere with an order of the High Court only because it will be lawful to do so. Article 136 of the Constitution vests this Court with a discretionary jurisdiction. In a given case, it may or may not exercise its power.58. We, therefore, are of the opinion that it is not a fit case where interference with the High Courts judgment would be a proper exercise of jurisdiction under Article 136 of the Constitution of India. | 0 | 6,916 | 949 | ### Instruction:
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interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted." [See also M/s Power Control Appliances and Others v. Sumeet Machines Pvt. Ltd. [(1994) 2 SCC 448] . 50. The interim direction ordinarily would precede finding of a prima facie case. When existence of a prima facie case is established, the court shall consider the other relevant factors, namely, balance of convenience and irreparable injuries. The High Court in its impugned judgment although not directly but indirectly has considered this aspect of the matter when on merit it noticed that the Appellant has raised a dispute as regard payment of an excess amount of Rs.35 crores although according to the Respondent a sum of Rs.132 crores is due to it from the Appellant and the Appellant had been paying the amount for the last two years as per the contract.51. Conduct of the parties is also a relevant factor. If the parties had been acting in a particular manner for a long time upon interpreting the terms and conditions of the contract, if pending determination of the lis, an order is passed that the parties would continue to do so, the same would not render the decision as an arbitrary one, as was contended by Mr. Rao. Even the Appellant had prayed for adjudication at the hands of the Commission in the same manner. Thus, it itself thought that the final relief would be granted only by the Arbitrator. 52. The Commission is yet to apply its mind. Even before the Commission, the Appellant has not made any application for a direction in terms of sub-section (2) of Section 94 of the Act. 53. The Respondent has installed the Power Generation Plant. It has continuously been supplying electrical energy to the Appellant. Indisputably, it has to discharge its contractual obligation. The Appellant being the only consumer, the Respondent has no other option but to supply electrical energy to it. In the event, the dispute is referred to the arbitrator, the equity between the parties can be adjusted. Without going into the correctness or otherwise of the claim of the Respondent, we may notice, that according to it, the Appellant owes a hefty sum of Rs.132 crores to it. According to the Appellant, in the event, the disputes and differences between the parties are determined in its favour, it may be held, that it has paid an excess sum of Rs.35 crores only.54. Clause 2 of Article 14 postulates that pending arbitration, the rights and obligations of the parties shall remain in full force and effect pending the award in such arbitration proceedings, which award shall determine whether and when termination of the said agreement if irrelevant shall become effective.55. It is now well-settled that this Court would not interfere with an order of the High Court only because it will be lawful to do so. Article 136 of the Constitution vests this Court with a discretionary jurisdiction. In a given case, it may or may not exercise its power. The question came up for consideration before this Court in Chandra Singh and Others v. State of Rajasthan and Another [(2003) 6 SCC 545] wherein it was observed: "42. In any event, even assuming that there is some force in the contention of the appellants, this Court will be justified in following Taherakhatoon v. Salambin Mohd. wherein this Court declared that even if the appellants contention is right in law having regard to the overall circumstances of the case, this Court would be justified in declining to grant relief under Article 136 while declaring the law in favour of the appellants." [See also State of Punjab v. Savinderjit Kaur, (2004) 4 SCC 58 ] 56. The said principle was reiterated in N.K. Prasada v. Government of India and Others [(2004) 6 SCC 299] stating: "It is trite that in a given case, the Court may refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution." 56. In Inder Parkash Gupta v. State of J&K and Others [(2004) 6 SCC 786] , it was stated: "42. In ordinary course we would have allowed the appeal but we cannot lose sight of the fact that the selections had been made in the year 1994. A valuable period of 10 years has elapsed. The private respondents have been working in their posts for the last 10 years. It is trite that with a view to do complete justice between the parties, this Court in a given case may not exercise its jurisdiction under Article 136 of the Constitution of India." 57. The same principle has been reiterated in State of Uttaranchal Through Collector, Dehradun and Another v. Ajit Singh Bhola and Another [(2004) 6 SCC 800] wherein it was stated: "9 - Having regard to the manner in which the District Magistrate took over possession of the premises, which appears to us as at present advised, to be high-handed, arbitrary and without any legal sanction we are not persuaded to exercise our discretion under Article 136 of the Constitution of India to set aside the interim order passed by the High Court. It is well settled that this Court will not exercise its discretion and quash an order which appears to be illegal, if its effect is to revive another illegal order."58. We, therefore, are of the opinion that it is not a fit case where interference with the High Courts judgment would be a proper exercise of jurisdiction under Article 136 of the Constitution of India.
### Response:
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### Explanation:
24. It is not in dispute that the Commission was constituted in terms of the Act. Section 37 of the said Act contains a non-obstante clause stating that notwithstanding anything contained in the 1996 Act, any dispute arising between the licensees shall be referred to the Commission. The Commission may proceed to act as arbitrator or nominate arbitrator or arbitrators to adjudicate and settle such disputes. Section 28 of the 1998 Act empowers the Commission to issue an interim order as it deems proper for securing compliance if it is satisfied that a licensee is contravening or is likely to contravene any relevant condition or requirement of the licence.The Appellant is a licensee within the meaning of both the 1998 Act and the 2003 Act.29. The question as to whether the Respondent should have taken a licence or permit under the 2003 Act or not is not a matter which requires our immediate attention. The Appellant is a licensee and the Respondent is a generating company in terms of the provisions of the 2003 Act. Section 37 of the 1998 Act deals with disputes between the licensees.The learned Counsel for the parties, as noticed hereinbefore, have argued before us on the interpretation of the provisions of the relevant statutes and agreement for determining the effect and purport thereof.32. As at present advised, however, we refrain ourselves from expressing any opinion one way or the other having regard to the fact that the matter ultimately must receive a detailed consideration at the hands of the High Court both in the writ petition as also in the application filed by the Respondent under Section 11 of the 1996 Act..45. We have referred to Firm Ashok Traders (supra) not because we agree with the principle laid down therein but only to suggest that Section 9 of the 1996 Act should be applied so that status quo may be directed to be maintained having regard to the fact that the parties understood the workability of the agreement in a particular manner.46. A writ court can also grant injunction in exercise of its power under Article 226 of the Constitution of India. If injunction is refused in this proceeding, the interim order passed in the writ proceedings shall continue. It may give rise to a stalemate. It may violate the well-known rule of judicial comity.The High Court, therefore, while noticing the interim order passed in the writ proceedings may have the said principle in mind.The interim direction ordinarily would precede finding of a prima facie case. When existence of a prima facie case is established, the court shall consider the other relevant factors, namely, balance of convenience and irreparable injuries. The High Court in its impugned judgment although not directly but indirectly has considered this aspect of the matter when on merit it noticed that the Appellant has raised a dispute as regard payment of an excess amount of Rs.35 crores although according to the Respondent a sum of Rs.132 crores is due to it from the Appellant and the Appellant had been paying the amount for the last two years as per the contract.51. Conduct of the parties is also a relevant factor. If the parties had been acting in a particular manner for a long time upon interpreting the terms and conditions of the contract, if pending determination of the lis, an order is passed that the parties would continue to do so, the same would not render the decision as an arbitrary one, as was contended by Mr. Rao. Even the Appellant had prayed for adjudication at the hands of the Commission in the same manner. Thus, it itself thought that the final relief would be granted only by the Arbitrator.The Respondent has installed the Power Generation Plant. It has continuously been supplying electrical energy to the Appellant. Indisputably, it has to discharge its contractual obligation. The Appellant being the only consumer, the Respondent has no other option but to supply electrical energy to it. In the event, the dispute is referred to the arbitrator, the equity between the parties can be adjusted. Without going into the correctness or otherwise of the claim of the Respondent, we may notice, that according to it, the Appellant owes a hefty sum of Rs.132 crores to it. According to the Appellant, in the event, the disputes and differences between the parties are determined in its favour, it may be held, that it has paid an excess sum of Rs.35 crores only.54. Clause 2 of Article 14 postulates that pending arbitration, the rights and obligations of the parties shall remain in full force and effect pending the award in such arbitration proceedings, which award shall determine whether and when termination of the said agreement if irrelevant shall become effective.55. It is now well-settled that this Court would not interfere with an order of the High Court only because it will be lawful to do so. Article 136 of the Constitution vests this Court with a discretionary jurisdiction. In a given case, it may or may not exercise its power.58. We, therefore, are of the opinion that it is not a fit case where interference with the High Courts judgment would be a proper exercise of jurisdiction under Article 136 of the Constitution of India.
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Amin Lal Vs. Hunna Mal | to promote feelings of enmity etc. He also contended that the allegations in the petition are, strictly speaking, against the respondent and not Suraj Bhan and that merely alleging that Suraj Bhan distributed the pamphlets without imputing to him the knowledge, express or implied, of the contents of the pamphlets does not amount to an allegation of corrupt practice. In support of this he pointed out that the appellant had expressly submitted to the Tribunal that no allegation of corrupt practice was ever intended to be made against Suraj Bhan. This is not quite correct because the Tribunal in para 16 of its order has observed as follows:"It has not been seriously challenged that (sic) in fact it cannot be challenged that the allegations made against Suraj Bhan in the amended petition amount to allegations of corrupt practice."11. Apart from that the allegation against the respondent himself is in practically the same terms as that against Suraj Bhan and other persons mentioned in paragraph 9(c)(i) of the petition. The appellant did not say in his petition that the respondent had no knowledge express or implied of the contents of the pamphlets. Yet, according to him, he was guilty of corrupt practice by distributing and causing the distribution of the pamphlets through Suraj Bhan and others. If the averments contained in the aforesaid paragraph are, therefore, not to be regarded as allegations of corrupt practice against Suraj Bhan they could also not be regarded as allegations of that type against the respondent. If that were so, the whole of paragraph 9(c)(i) would lose its meaning and significance. Indeed, both the High Court and the Tribunal have regarded the allegations therein as allegations of corrupt practices and we ourselves do not see how else they could be construed.12. Mr. Setalvad then contended that the Tribunal had no power to allow or direct the amendment of the election petition as it is not a suit between two parties but is a proceeding in which the entire constituency is interested and referred in this connection to two decisions of this Court in K. Kamaraja Nadar v. Kunju Thevar, 1959 SCR 583 : (AIR 1958 SC 687 ) and Mallappa Basappa v. Basavaraj Ayyapa, 1959 SCR 611 : (AIR 1958 SC 696).13. In the Act as it stood prior to its amendment in 1956 the provisions of the Code of Civil Procedure relating to trial of suits were made applicable to trial of election petition by S. 90(2). Those provisions are now reproduced in S. 90(1) of the Act. As regards allegations of corrupt and illegal practice S. 83(2) provided, as does S. 83(1)(a) now, that full particulars of the parties alleged to be guilty of such practices be given. Sub-section (3) empowered the Tribunal to permit amendment of the particulars. This latter provision has been deleted. But while it was still in force this Court held in Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370 : ((S) AIR 1957 SC 444 ) that despite this provision, the Tribunal had power to permit amendment under O. VI, R. 17, Code of Civil Procedure in regard to matters other than those falling within sub-section (3) of S. 83. Bhagwati J., who was a party to this decision and who delivered the judgment of the Court in the two cases earlier referred to has not expressed any disent from this view. What he did say in those cases, in so far as permission to amend is concerned was that the Tribunal had no power to grant it so as to enable the petitioner whose petition did not comply with the provisions of S. 81 or S. 82 to remedy the defect. In the case before us, the Tribunal did not, by giving an option to the appellant either to amend the petition or furnish particulars or to have para 9(c)(i) struck off as being vague enable the appellant to remove a defect pertaining to the presentation of a petition or joinder of parties (which are matters dealt with by Ss. 81 and 82). We agree, with what has been said in Harischandra Bajpais case, 1957 SCR 370 : ( (S) AIR 1957 SC 444 ) and hold that the Tribunal was competent to allow or give an option to the appellant to amend the petition.14. The next contention of learned counsel is that since the petition had become defective by reason of the amendment the Tribunal should either have permitted the appellant to join Suraj Bhan as a respondent or to further amend the petition by deleting reference to Suraj Bhan. A party can avail himself of the provisions of O. 1, R.10(1), C.P.C. subject to the law of limitation. Assuming that a Tribunal can permit the joinder of parties, we must point out that under S. 81 of the Act an election petition has to be presented within 45 days of the date of the election of the returned candidate. The application under O. 1, R.10 was made more than eight months after the election of the respondent and was thus inordinately late and could, therefore, not be granted. As regards joinder of Suraj Bhan in exercise of the powers conferred on a court by O. 1, R. 10(2) all that we need say is that the matter was in the discretion of the Tribunal and we would not lightly interfere with what the Tribunal has done. As regards the last submission, it cannot be forgotten that the appellant did have the choice when the Tribunal made its order on September 3, 1962 to decline to amend and suffer para 9(c)(i) being struck off. He chose to amend and has lost the right to adopt the alternative. Moreover, though the decision in K. Kamaraja Nadars case, 1959 SCR 583 : (ARI 158 SC 687) may not strictly apply, to allow a further amendment for avoiding the penalty under S.90(3) of the Act would have been grossly improper and the Tribunal was right in rejecting it.15. | 0[ds]Since there is, according to him, no provision for amendment of an election petition during the time the Election Commission is seized with it, and since under sub-section (3) of S. 90 the powers of the Tribunal are identical with those of the Election Commission under S. 35, we must take the expression "election petition" to mean an unamended election petition. It is not necessary for us to consider whether the Election Commission can permit amendment of an election petition, but assuming that it has no such power it does not follow that the Tribunal to whom the petition has been sent for trial has no power to dismiss it after it has been amended by the petitioner. The procedure regarding the trial of election petition is contained in Chapter III of the Act, the first section in which is S. 86. That section deals with the appointment of an Election Tribunal. It provides that if the petition is not dismissed under S. 85 by the Election Commission, it shall be referred to an Election Tribunal for trial. Sub-section (1) of S. 90 provides that subject to the provisions of the Act and rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under theCode of Civil Procedure, 1908 to the trial of suits. Under O. VI, R. 17 of theCode of Civil Procedure a Civil Court has power to permit amendment of pleadings and, therefore, it is obvious that the Tribunal can exercise the same power with respect to a petition referred to it for trial as the civil court. Sub-section (3) provides that the Tribunal shall dismiss the petition if it does not comply with the provisions of S. 81 or S. 82 notwithstanding that it has not been dismissed by the Election Commission under S. 85. It would follow from this that the power of the Tribunal to dismiss an election petition is not in any way affected by the fact that it was not dismissed by the Election Commission under Sec. 85. Indeed this provision gives an independent power to the Tribunal to dismiss an election petition on the ground of non-compliance with the provisions of Ss. 81 and 82 despite the fact that the Election Commission has not chosen to dismiss it upon those grounds that S. 85. Since an election petition can be permitted by the Tribunal to be amended, a petition which has been amended would, from the date of amendment, be the only petition before it. Therefore, that would be the petition with respect to which it could exercise the powers conferred upon it by sub-section (3) of S. 90. To hold otherwise would lead to the result that the powers conferred by the legislature on the Tribunal by this provision will become non-exercisable in respect of one category of election petitions. There is nothing in S. 90 which deprives the Tribunal of any of the powers conferred upon it by the aforesaid provision. No other provision has been brought to our notice which has the effect of taking away the express powers conferred by sub-section (3) of S. 90 on the Tribunal by reason of an amendment of the petition. We cannot, therefore, accept hissub-section (3-A) of S. 123 of the Act the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language, by a candidate or his agent or any other persons with the, consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate amounts to a corrupt practice. The allegations against Suraj Bhan are thus obviously allegations of corruptfrom that the allegation against the respondent himself is in practically the same terms as that against Suraj Bhan and other persons mentioned in paragraph 9(c)(i) of the petition. The appellant did not say in his petition that the respondent had no knowledge express or implied of the contents of the pamphlets. Yet, according to him, he was guilty of corrupt practice by distributing and causing the distribution of the pamphlets through Suraj Bhan and others. If the averments contained in the aforesaid paragraph are, therefore, not to be regarded as allegations of corrupt practice against Suraj Bhan they could also not be regarded as allegations of that type against the respondent. If that were so, the whole of paragraph 9(c)(i) would lose its meaning and significance. Indeed, both the High Court and the Tribunal have regarded the allegations therein as allegations of corrupt practices and we ourselves do not see how else they could be construed.In the Act as it stood prior to its amendment in 1956 the provisions of theCode of Civil Procedure relating to trial of suits were made applicable to trial of election petition by S. 90(2). Those provisions are now reproduced in S. 90(1) of the Act. As regards allegations of corrupt and illegal practice S. 83(2) provided, as does S. 83(1)(a) now, that full particulars of the parties alleged to be guilty of such practices be given. Sub-section (3) empowered the Tribunal to permit amendment of the particulars. This latter provision has been deleted. But while it was still in force this Court held in Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370 : ((S) AIR 1957 SC 444 ) that despite this provision, the Tribunal had power to permit amendment under O. VI, R. 17,Code of Civil Procedure in regard to matters other than those falling within sub-section (3) of S. 83. Bhagwati J., who was a party to this decision and who delivered the judgment of the Court in the two cases earlier referred to has not expressed any disent from this view. What he did say in those cases, in so far as permission to amend is concerned was that the Tribunal had no power to grant it so as to enable the petitioner whose petition did not comply with the provisions of S. 81 or S. 82 to remedy the defect. In the case before us, the Tribunal did not, by giving an option to the appellant either to amend the petition or furnish particulars or to have para 9(c)(i) struck off as being vague enable the appellant to remove a defect pertaining to the presentation of a petition or joinder of parties (which are matters dealt with by Ss. 81 and 82). We agree, with what has been said in Harischandra Bajpais case, 1957 SCR 370 : ( (S) AIR 1957 SC 444 ) and hold that the Tribunal was competent to allow or give an option to the appellant to amend thethat a Tribunal can permit the joinder of parties, we must point out that under S. 81 of the Act an election petition has to be presented within 45 days of the date of the election of the returned candidate. The application under O. 1, R.10 was made more than eight months after the election of the respondent and was thus inordinately late and could, therefore, not be granted. As regards joinder of Suraj Bhan in exercise of the powers conferred on a court by O. 1, R. 10(2) all that we need say is that the matter was in the discretion of the Tribunal and we would not lightly interfere with what the Tribunal has done. As regards the last submission, it cannot be forgotten that the appellant did have the choice when the Tribunal made its order on September 3, 1962 to decline to amend and suffer para 9(c)(i) being struck off. He chose to amend and has lost the right to adopt the alternative. Moreover, though the decision in K. Kamaraja Nadars case, 1959 SCR 583 : (ARI 158 SC 687) may not strictly apply, to allow a further amendment for avoiding the penalty under S.90(3) of the Act would have been grossly improper and the Tribunal was right in rejecting it. | 0 | 4,179 | 1,523 | ### Instruction:
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to promote feelings of enmity etc. He also contended that the allegations in the petition are, strictly speaking, against the respondent and not Suraj Bhan and that merely alleging that Suraj Bhan distributed the pamphlets without imputing to him the knowledge, express or implied, of the contents of the pamphlets does not amount to an allegation of corrupt practice. In support of this he pointed out that the appellant had expressly submitted to the Tribunal that no allegation of corrupt practice was ever intended to be made against Suraj Bhan. This is not quite correct because the Tribunal in para 16 of its order has observed as follows:"It has not been seriously challenged that (sic) in fact it cannot be challenged that the allegations made against Suraj Bhan in the amended petition amount to allegations of corrupt practice."11. Apart from that the allegation against the respondent himself is in practically the same terms as that against Suraj Bhan and other persons mentioned in paragraph 9(c)(i) of the petition. The appellant did not say in his petition that the respondent had no knowledge express or implied of the contents of the pamphlets. Yet, according to him, he was guilty of corrupt practice by distributing and causing the distribution of the pamphlets through Suraj Bhan and others. If the averments contained in the aforesaid paragraph are, therefore, not to be regarded as allegations of corrupt practice against Suraj Bhan they could also not be regarded as allegations of that type against the respondent. If that were so, the whole of paragraph 9(c)(i) would lose its meaning and significance. Indeed, both the High Court and the Tribunal have regarded the allegations therein as allegations of corrupt practices and we ourselves do not see how else they could be construed.12. Mr. Setalvad then contended that the Tribunal had no power to allow or direct the amendment of the election petition as it is not a suit between two parties but is a proceeding in which the entire constituency is interested and referred in this connection to two decisions of this Court in K. Kamaraja Nadar v. Kunju Thevar, 1959 SCR 583 : (AIR 1958 SC 687 ) and Mallappa Basappa v. Basavaraj Ayyapa, 1959 SCR 611 : (AIR 1958 SC 696).13. In the Act as it stood prior to its amendment in 1956 the provisions of the Code of Civil Procedure relating to trial of suits were made applicable to trial of election petition by S. 90(2). Those provisions are now reproduced in S. 90(1) of the Act. As regards allegations of corrupt and illegal practice S. 83(2) provided, as does S. 83(1)(a) now, that full particulars of the parties alleged to be guilty of such practices be given. Sub-section (3) empowered the Tribunal to permit amendment of the particulars. This latter provision has been deleted. But while it was still in force this Court held in Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370 : ((S) AIR 1957 SC 444 ) that despite this provision, the Tribunal had power to permit amendment under O. VI, R. 17, Code of Civil Procedure in regard to matters other than those falling within sub-section (3) of S. 83. Bhagwati J., who was a party to this decision and who delivered the judgment of the Court in the two cases earlier referred to has not expressed any disent from this view. What he did say in those cases, in so far as permission to amend is concerned was that the Tribunal had no power to grant it so as to enable the petitioner whose petition did not comply with the provisions of S. 81 or S. 82 to remedy the defect. In the case before us, the Tribunal did not, by giving an option to the appellant either to amend the petition or furnish particulars or to have para 9(c)(i) struck off as being vague enable the appellant to remove a defect pertaining to the presentation of a petition or joinder of parties (which are matters dealt with by Ss. 81 and 82). We agree, with what has been said in Harischandra Bajpais case, 1957 SCR 370 : ( (S) AIR 1957 SC 444 ) and hold that the Tribunal was competent to allow or give an option to the appellant to amend the petition.14. The next contention of learned counsel is that since the petition had become defective by reason of the amendment the Tribunal should either have permitted the appellant to join Suraj Bhan as a respondent or to further amend the petition by deleting reference to Suraj Bhan. A party can avail himself of the provisions of O. 1, R.10(1), C.P.C. subject to the law of limitation. Assuming that a Tribunal can permit the joinder of parties, we must point out that under S. 81 of the Act an election petition has to be presented within 45 days of the date of the election of the returned candidate. The application under O. 1, R.10 was made more than eight months after the election of the respondent and was thus inordinately late and could, therefore, not be granted. As regards joinder of Suraj Bhan in exercise of the powers conferred on a court by O. 1, R. 10(2) all that we need say is that the matter was in the discretion of the Tribunal and we would not lightly interfere with what the Tribunal has done. As regards the last submission, it cannot be forgotten that the appellant did have the choice when the Tribunal made its order on September 3, 1962 to decline to amend and suffer para 9(c)(i) being struck off. He chose to amend and has lost the right to adopt the alternative. Moreover, though the decision in K. Kamaraja Nadars case, 1959 SCR 583 : (ARI 158 SC 687) may not strictly apply, to allow a further amendment for avoiding the penalty under S.90(3) of the Act would have been grossly improper and the Tribunal was right in rejecting it.15.
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independent power to the Tribunal to dismiss an election petition on the ground of non-compliance with the provisions of Ss. 81 and 82 despite the fact that the Election Commission has not chosen to dismiss it upon those grounds that S. 85. Since an election petition can be permitted by the Tribunal to be amended, a petition which has been amended would, from the date of amendment, be the only petition before it. Therefore, that would be the petition with respect to which it could exercise the powers conferred upon it by sub-section (3) of S. 90. To hold otherwise would lead to the result that the powers conferred by the legislature on the Tribunal by this provision will become non-exercisable in respect of one category of election petitions. There is nothing in S. 90 which deprives the Tribunal of any of the powers conferred upon it by the aforesaid provision. No other provision has been brought to our notice which has the effect of taking away the express powers conferred by sub-section (3) of S. 90 on the Tribunal by reason of an amendment of the petition. We cannot, therefore, accept hissub-section (3-A) of S. 123 of the Act the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language, by a candidate or his agent or any other persons with the, consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate amounts to a corrupt practice. The allegations against Suraj Bhan are thus obviously allegations of corruptfrom that the allegation against the respondent himself is in practically the same terms as that against Suraj Bhan and other persons mentioned in paragraph 9(c)(i) of the petition. The appellant did not say in his petition that the respondent had no knowledge express or implied of the contents of the pamphlets. Yet, according to him, he was guilty of corrupt practice by distributing and causing the distribution of the pamphlets through Suraj Bhan and others. If the averments contained in the aforesaid paragraph are, therefore, not to be regarded as allegations of corrupt practice against Suraj Bhan they could also not be regarded as allegations of that type against the respondent. If that were so, the whole of paragraph 9(c)(i) would lose its meaning and significance. Indeed, both the High Court and the Tribunal have regarded the allegations therein as allegations of corrupt practices and we ourselves do not see how else they could be construed.In the Act as it stood prior to its amendment in 1956 the provisions of theCode of Civil Procedure relating to trial of suits were made applicable to trial of election petition by S. 90(2). Those provisions are now reproduced in S. 90(1) of the Act. As regards allegations of corrupt and illegal practice S. 83(2) provided, as does S. 83(1)(a) now, that full particulars of the parties alleged to be guilty of such practices be given. Sub-section (3) empowered the Tribunal to permit amendment of the particulars. This latter provision has been deleted. But while it was still in force this Court held in Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370 : ((S) AIR 1957 SC 444 ) that despite this provision, the Tribunal had power to permit amendment under O. VI, R. 17,Code of Civil Procedure in regard to matters other than those falling within sub-section (3) of S. 83. Bhagwati J., who was a party to this decision and who delivered the judgment of the Court in the two cases earlier referred to has not expressed any disent from this view. What he did say in those cases, in so far as permission to amend is concerned was that the Tribunal had no power to grant it so as to enable the petitioner whose petition did not comply with the provisions of S. 81 or S. 82 to remedy the defect. In the case before us, the Tribunal did not, by giving an option to the appellant either to amend the petition or furnish particulars or to have para 9(c)(i) struck off as being vague enable the appellant to remove a defect pertaining to the presentation of a petition or joinder of parties (which are matters dealt with by Ss. 81 and 82). We agree, with what has been said in Harischandra Bajpais case, 1957 SCR 370 : ( (S) AIR 1957 SC 444 ) and hold that the Tribunal was competent to allow or give an option to the appellant to amend thethat a Tribunal can permit the joinder of parties, we must point out that under S. 81 of the Act an election petition has to be presented within 45 days of the date of the election of the returned candidate. The application under O. 1, R.10 was made more than eight months after the election of the respondent and was thus inordinately late and could, therefore, not be granted. As regards joinder of Suraj Bhan in exercise of the powers conferred on a court by O. 1, R. 10(2) all that we need say is that the matter was in the discretion of the Tribunal and we would not lightly interfere with what the Tribunal has done. As regards the last submission, it cannot be forgotten that the appellant did have the choice when the Tribunal made its order on September 3, 1962 to decline to amend and suffer para 9(c)(i) being struck off. He chose to amend and has lost the right to adopt the alternative. Moreover, though the decision in K. Kamaraja Nadars case, 1959 SCR 583 : (ARI 158 SC 687) may not strictly apply, to allow a further amendment for avoiding the penalty under S.90(3) of the Act would have been grossly improper and the Tribunal was right in rejecting it.
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Shaikh Matin Vs. State of Maharashtra & Another | 1. The accused appellant who has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life is in appeal before us. 2. We have heard the learned counsels for the parties. 3. The undisputed facts of the case that will require a notice for the purposes of determination of the liability of the accused appellant are that he had come to the place of occurrence without being armed with the weapon of the alleged offence which was a heavy wooden log. Admittedly, the assault by the accused appellant on the deceased was a single blow assault which had caused the following injuries on the deceased: 1. 3 cm. Contused lacerated wound over saggital suture of scalp. 2. 4 cm. Fracture skull of frontal bone over right side above right eye. 3. Subdural haematome 3 x 4 cm. below fracture site, brain was congested. 4. The doctor (P.W.13) who had conducted the postmortem had categorically deposed that the injuries found on the person of the deceased, as described above, were caused by a single blow and that the victim had suffered only one external injury, namely, 3 cm. contused lacerated wound over saggital suture of scalp. In fact, it is the opinion of the doctor (P.W.13) that the same blow had caused the fracture which is injury No.2 and subdural haematome which is injury No.3. 5. Taking into account the fact that the accused appellant had delivered only a single blow but on a vital part of the body of the deceased i.e. head and that despite opportunities he had refrained/restrained himself from inflicting any further injury on the deceased we are of the view that the present is not a case under Section 302 of the IPC. Rather, according to us, it would be more appropriate to hold that the accused appellant is liable for the offence under Section 304 Part I IPC. We, therefore, convert the conviction of the accused appellant to one under Section 304 Part I IPC. As the accused appellant admittedly has been in custody for nearly nine years now we are of the view that the ends of justice would be met if the sentence is converted to the period of custody already suffered. | 1[ds]5. Taking into account the fact that the accused appellant had delivered only a single blow but on a vital part of the body of the deceased i.e. head and that despite opportunities he had refrained/restrained himself from inflicting any further injury on the deceased we are of the view that the present is not a case under Section 302 of the IPC. Rather, according to us, it would be more appropriate to hold that the accused appellant is liable for the offence under Section 304 Part I IPC. We, therefore, convert the conviction of the accused appellant to one under Section 304 Part I IPC. As the accused appellant admittedly has been in custody for nearly nine years now we are of the view that the ends of justice would be met if the sentence is converted to the period of custody already suffered. | 1 | 414 | 159 | ### Instruction:
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1. The accused appellant who has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life is in appeal before us. 2. We have heard the learned counsels for the parties. 3. The undisputed facts of the case that will require a notice for the purposes of determination of the liability of the accused appellant are that he had come to the place of occurrence without being armed with the weapon of the alleged offence which was a heavy wooden log. Admittedly, the assault by the accused appellant on the deceased was a single blow assault which had caused the following injuries on the deceased: 1. 3 cm. Contused lacerated wound over saggital suture of scalp. 2. 4 cm. Fracture skull of frontal bone over right side above right eye. 3. Subdural haematome 3 x 4 cm. below fracture site, brain was congested. 4. The doctor (P.W.13) who had conducted the postmortem had categorically deposed that the injuries found on the person of the deceased, as described above, were caused by a single blow and that the victim had suffered only one external injury, namely, 3 cm. contused lacerated wound over saggital suture of scalp. In fact, it is the opinion of the doctor (P.W.13) that the same blow had caused the fracture which is injury No.2 and subdural haematome which is injury No.3. 5. Taking into account the fact that the accused appellant had delivered only a single blow but on a vital part of the body of the deceased i.e. head and that despite opportunities he had refrained/restrained himself from inflicting any further injury on the deceased we are of the view that the present is not a case under Section 302 of the IPC. Rather, according to us, it would be more appropriate to hold that the accused appellant is liable for the offence under Section 304 Part I IPC. We, therefore, convert the conviction of the accused appellant to one under Section 304 Part I IPC. As the accused appellant admittedly has been in custody for nearly nine years now we are of the view that the ends of justice would be met if the sentence is converted to the period of custody already suffered.
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5. Taking into account the fact that the accused appellant had delivered only a single blow but on a vital part of the body of the deceased i.e. head and that despite opportunities he had refrained/restrained himself from inflicting any further injury on the deceased we are of the view that the present is not a case under Section 302 of the IPC. Rather, according to us, it would be more appropriate to hold that the accused appellant is liable for the offence under Section 304 Part I IPC. We, therefore, convert the conviction of the accused appellant to one under Section 304 Part I IPC. As the accused appellant admittedly has been in custody for nearly nine years now we are of the view that the ends of justice would be met if the sentence is converted to the period of custody already suffered.
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Commissioner Of Trade Tax, U.P Vs. M/S. Malviya Chemicals & Pharmaceutical Private Limited, Ghaziabad | is higher. 6.(a) Turnover of sale of goods in any assessment year to the extent of the quantity covered by production of that year and the stock of base production of previous years shall be deemed to be the turnover of base production. (b) Only the turnover of goods in any assessment year in excess of the quantity referred to in clause (a) shall be entitled to the facility of exemption from or reduction in the rate of tax. ANNEXURE I - ANNEXURE II RULE 41- Submission of returns and assessment of tax (1) Every dealer liable to tax, the aggregate of whose turnover, of purchases and sales in any assessment year exceeds rupees five lakhs, shall before the expiry of the next succeeding month, submit to the Trade Tax Officer a monthly return of his turnover in Form IV, giving Annexure I and II thereof, detailed information, according to Code numbers notified by the State Government from time to time, in respect of each category of goods in which he carries on business: Provided that the return for the month of February shall be submitted to the Trade Tax Officer on or before the twentieth day of March: Provided further that the dealer may, instead of submitting a return as aforesaid, estimate his turnover for the years on the basis of the turnover admitted by him in his return, or disclosed in his account books, whichever is greater, for the immediately preceding year, calculate the amount of tax payable thereon and deposit a sum equal to one twelfth thereof during each of the first two months of every quarter, and deposit the balance of tax due on the turnover admitted by him in his return for the relevant quarter, which shall be prepared and submitted in the manner laid down in this rule. (8) Upon the expiry of the assessment year, the Assessing Authority shall, after such enquiry, as he may deem necessary, determine the turnover of sales or of purchases, or both, as the case may be, of the dealer in respect of the assessment year and shall assess the tax payable thereon; Provided that in the case of a dealer to whom sub-section (1) of Section 18 applies or owner or in charge of the vehicle to whom sub-section (1) of Section 28-B applies, the assessing authority may make an assessment order and assess the tax payable thereon before the expiry of the assessment year: Provided further that, before determining the turnover of the dealer to the best of his judgment, the assessing authority shall cause a notice to be served on the dealer, stating the reasons, for non-acceptance of the turnover of sales or purchases or both, as disclosed in the returns, if any, submitted by him and shall give him a reasonable opportunity of furnishing his reply thereto. Section 7.-Determination of turnover and assessment of tax. (1-A) Before submitting the return under sub-Section (1) or along with such return, the dealer shall deposit, in such manner as may be prescribed, the amount of due on the turn- over shown in such return. 9. A similar issue came up for consideration in Commissioner of Trade Tax, U.P. Vs. Modipan Fibres Co. (2006 (6) SCC 577 ). In that case, this Court was considering an appeal filed by the present appellant where challenge lay to the decision rendered by the High Court in Modipan Fibres Co. Vs. C.T.T. (2000 UPTC 319). 10. The said case was relied upon by the High Court in support of its conclusions which are challenged in the present appeal. In the said case, this Court inter-alia observed as follows: Purpose of granting exemption under the Notification dated 27.7.1999 was to promote the development of certain industries in the State. By the said Notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernization. The units of dealers in all the revisions are units, which had undertaken expansion/modernization. The units of the dealers (respondents) are covered by Clause (1-B) (a) of the Notification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6(a) of the said Notification, turnover of sale of goods in any assessment year to the extent of quantity covered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6(b) of the Notification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause (a) of clause 6. A conjoint reading of Clause (1-B) (a), clause 6(a) and 6 (b) makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment near in excess of the base production. Assessment Year has been defined in Section 3 (j) to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act. Simply because dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does not mean that question of exemption on the turnover of the production in excess of the base production can be considered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalization of the assessment. Intention of the legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production. We do not find any substance in the submission advanced on behalf of the appellants. | 0[ds]9. A similar issue came up for consideration in Commissioner of Trade Tax, U.P. Vs. Modipan Fibres Co. (2006 (6) SCC 577 ). In that case, this Court was considering an appeal filed by the present appellant where challenge lay to the decision rendered by the High Court in Modipan Fibres Co. Vs. C.T.T. (2000 UPTC 319)10. The said case was relied upon by the High Court in support of its conclusions which are challenged in the present appeal. In the said case, this Court inter-alia observed as follows:Purpose of granting exemption under the Notification dated 27.7.1999 was to promote the development of certain industries in the State. By the said Notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernization. The units of dealers in all the revisions are units, which had undertaken expansion/modernization. The units of the dealers (respondents) are covered by Clause (1-B) (a) of the Notification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6(a) of the said Notification, turnover of sale of goods in any assessment year to the extent of quantity covered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6(b) of the Notification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause (a) of clause 6. A conjoint reading of Clause (1-B) (a), clause 6(a) and 6 (b) makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment near in excess of the base production. Assessment Year has been defined in Section 3 (j) to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act. Simply because dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does not mean that question of exemption on the turnover of the production in excess of the base production can be considered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalization of the assessment. Intention of the legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production. We do not find any substance in the submission advanced on behalf of the appellants | 0 | 3,996 | 548 | ### 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:
is higher. 6.(a) Turnover of sale of goods in any assessment year to the extent of the quantity covered by production of that year and the stock of base production of previous years shall be deemed to be the turnover of base production. (b) Only the turnover of goods in any assessment year in excess of the quantity referred to in clause (a) shall be entitled to the facility of exemption from or reduction in the rate of tax. ANNEXURE I - ANNEXURE II RULE 41- Submission of returns and assessment of tax (1) Every dealer liable to tax, the aggregate of whose turnover, of purchases and sales in any assessment year exceeds rupees five lakhs, shall before the expiry of the next succeeding month, submit to the Trade Tax Officer a monthly return of his turnover in Form IV, giving Annexure I and II thereof, detailed information, according to Code numbers notified by the State Government from time to time, in respect of each category of goods in which he carries on business: Provided that the return for the month of February shall be submitted to the Trade Tax Officer on or before the twentieth day of March: Provided further that the dealer may, instead of submitting a return as aforesaid, estimate his turnover for the years on the basis of the turnover admitted by him in his return, or disclosed in his account books, whichever is greater, for the immediately preceding year, calculate the amount of tax payable thereon and deposit a sum equal to one twelfth thereof during each of the first two months of every quarter, and deposit the balance of tax due on the turnover admitted by him in his return for the relevant quarter, which shall be prepared and submitted in the manner laid down in this rule. (8) Upon the expiry of the assessment year, the Assessing Authority shall, after such enquiry, as he may deem necessary, determine the turnover of sales or of purchases, or both, as the case may be, of the dealer in respect of the assessment year and shall assess the tax payable thereon; Provided that in the case of a dealer to whom sub-section (1) of Section 18 applies or owner or in charge of the vehicle to whom sub-section (1) of Section 28-B applies, the assessing authority may make an assessment order and assess the tax payable thereon before the expiry of the assessment year: Provided further that, before determining the turnover of the dealer to the best of his judgment, the assessing authority shall cause a notice to be served on the dealer, stating the reasons, for non-acceptance of the turnover of sales or purchases or both, as disclosed in the returns, if any, submitted by him and shall give him a reasonable opportunity of furnishing his reply thereto. Section 7.-Determination of turnover and assessment of tax. (1-A) Before submitting the return under sub-Section (1) or along with such return, the dealer shall deposit, in such manner as may be prescribed, the amount of due on the turn- over shown in such return. 9. A similar issue came up for consideration in Commissioner of Trade Tax, U.P. Vs. Modipan Fibres Co. (2006 (6) SCC 577 ). In that case, this Court was considering an appeal filed by the present appellant where challenge lay to the decision rendered by the High Court in Modipan Fibres Co. Vs. C.T.T. (2000 UPTC 319). 10. The said case was relied upon by the High Court in support of its conclusions which are challenged in the present appeal. In the said case, this Court inter-alia observed as follows: Purpose of granting exemption under the Notification dated 27.7.1999 was to promote the development of certain industries in the State. By the said Notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernization. The units of dealers in all the revisions are units, which had undertaken expansion/modernization. The units of the dealers (respondents) are covered by Clause (1-B) (a) of the Notification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6(a) of the said Notification, turnover of sale of goods in any assessment year to the extent of quantity covered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6(b) of the Notification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause (a) of clause 6. A conjoint reading of Clause (1-B) (a), clause 6(a) and 6 (b) makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment near in excess of the base production. Assessment Year has been defined in Section 3 (j) to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act. Simply because dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does not mean that question of exemption on the turnover of the production in excess of the base production can be considered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalization of the assessment. Intention of the legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production. We do not find any substance in the submission advanced on behalf of the appellants.
### Response:
0
### Explanation:
9. A similar issue came up for consideration in Commissioner of Trade Tax, U.P. Vs. Modipan Fibres Co. (2006 (6) SCC 577 ). In that case, this Court was considering an appeal filed by the present appellant where challenge lay to the decision rendered by the High Court in Modipan Fibres Co. Vs. C.T.T. (2000 UPTC 319)10. The said case was relied upon by the High Court in support of its conclusions which are challenged in the present appeal. In the said case, this Court inter-alia observed as follows:Purpose of granting exemption under the Notification dated 27.7.1999 was to promote the development of certain industries in the State. By the said Notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernization. The units of dealers in all the revisions are units, which had undertaken expansion/modernization. The units of the dealers (respondents) are covered by Clause (1-B) (a) of the Notification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6(a) of the said Notification, turnover of sale of goods in any assessment year to the extent of quantity covered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6(b) of the Notification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause (a) of clause 6. A conjoint reading of Clause (1-B) (a), clause 6(a) and 6 (b) makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment near in excess of the base production. Assessment Year has been defined in Section 3 (j) to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act. Simply because dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does not mean that question of exemption on the turnover of the production in excess of the base production can be considered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalization of the assessment. Intention of the legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production. We do not find any substance in the submission advanced on behalf of the appellants
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Som Mittal Vs. Govt. of Karnataka | in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. 13. In Hazari Lal Gupta v. Rameshwar Prasad 1972CriLJ298 this Court at SCC p. 455 pointed out: In exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable, offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. 14. In Jehan Singh v. Delhi Administration 1974CriLJ802 the application filed by the accused under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence. 15. In Kurukshetra University v. State of Haryana 1977CriLJ1900 , this Court pointed out: It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. (emphasis supplied) 16. In State of Bihar v. Murad Ali Khan 1989CriLJ1005 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. 17. In State of Haryana and Ors. (appellant) v. Bhajan Lal and Ors. (respondents) 1992CriLJ527 , this Court after referring to various decisions of this Court, enumerated various categories of cases by way of illustration wherein the inherent power under Section 482 of the Code should be exercised by the High Court. They are: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 18. We may observe here that despite this Courts consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold. 19. The rulings cited by Mr. K.K. Venugopal - East India Commercial Co. Ltd., Calcutta and Anr. v. The Collector of Customs, Calcutta 1983(13)ELT1342(SC) ; T. Prem Sagar v. The Standard Vacuum Oil Company Madras and Ors. (1964)ILLJ47SC ; Boothalinga Agencies v. V.T.C. Poriaswami Nadar [1969]1SCR65 ; and S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. 2005CriLJ4140 are not applicable in the facts of this case at this stage in view of our view above. | 0[ds]9. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner, It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.10. This Court, in a catena of decisions, consistently gave a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. This Court also held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims and caprice.18. We may observe here that despite this Courts consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold.19. The rulings cited by Mr. K.K. Venugopal - East India Commercial Co. Ltd., Calcutta and Anr. v. The Collector of Customs, Calcutta 1983(13)ELT1342(SC) ; T. Prem Sagar v. The Standard Vacuum Oil Company Madras and Ors.(1964)ILLJ47SC ; Boothalinga Agencies v. V.T.C. Poriaswami Nadar [1969]1SCR65 ; and S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. 2005CriLJ4140 are not applicable in the facts of this case at this stage in view of our view above. | 0 | 2,061 | 564 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. 13. In Hazari Lal Gupta v. Rameshwar Prasad 1972CriLJ298 this Court at SCC p. 455 pointed out: In exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable, offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. 14. In Jehan Singh v. Delhi Administration 1974CriLJ802 the application filed by the accused under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence. 15. In Kurukshetra University v. State of Haryana 1977CriLJ1900 , this Court pointed out: It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. (emphasis supplied) 16. In State of Bihar v. Murad Ali Khan 1989CriLJ1005 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. 17. In State of Haryana and Ors. (appellant) v. Bhajan Lal and Ors. (respondents) 1992CriLJ527 , this Court after referring to various decisions of this Court, enumerated various categories of cases by way of illustration wherein the inherent power under Section 482 of the Code should be exercised by the High Court. They are: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 18. We may observe here that despite this Courts consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold. 19. The rulings cited by Mr. K.K. Venugopal - East India Commercial Co. Ltd., Calcutta and Anr. v. The Collector of Customs, Calcutta 1983(13)ELT1342(SC) ; T. Prem Sagar v. The Standard Vacuum Oil Company Madras and Ors. (1964)ILLJ47SC ; Boothalinga Agencies v. V.T.C. Poriaswami Nadar [1969]1SCR65 ; and S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. 2005CriLJ4140 are not applicable in the facts of this case at this stage in view of our view above.
### Response:
0
### Explanation:
9. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner, It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.10. This Court, in a catena of decisions, consistently gave a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. This Court also held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims and caprice.18. We may observe here that despite this Courts consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold.19. The rulings cited by Mr. K.K. Venugopal - East India Commercial Co. Ltd., Calcutta and Anr. v. The Collector of Customs, Calcutta 1983(13)ELT1342(SC) ; T. Prem Sagar v. The Standard Vacuum Oil Company Madras and Ors.(1964)ILLJ47SC ; Boothalinga Agencies v. V.T.C. Poriaswami Nadar [1969]1SCR65 ; and S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. 2005CriLJ4140 are not applicable in the facts of this case at this stage in view of our view above.
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Farooq Vs. Sandhya Anthraper Kurishingal & Others | No.1071 of 2003 filed on 11th December, 2003 by two partners against the remaining partner and an unregistered firm seeking to cancel a sale made on 26th April, 2003 by the defendant partner without the consent of all the partners. A preliminary objection was taken stating that the suit was hit by Section 69 of the Indian Partnership Act, which reads as follows:-"69. Effect of non-registration.-(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect-(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner.(4) This section shall not apply-(a) to firms or to partners in firms which have no place of business in the territories to which this Act extends or whose places of business in the said territories, are situated in areas to which, by notification under Section 56, this Chapter does not apply, or(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.3. The trial court, by a Judgment dated 19th April, 2006, held, on a reading of the plaint as a whole, that the suit was hit by the said Section and, therefore, was not maintainable. The High Court in appeal against the said Judgment reversed the finding of the Trial Court by the impugned judgment dated 8th November, 2013, holding that a reading of the plaint leads to the conclusion that the plaintiffs are actually enforcing their rights as co-owners of the property, and not as partners of a firm and, therefore, the suit would be maintainable.4. Shri S. Gurukrishna Kumar, learned Senior counsel appearing on behalf of the appellant, pressed into service Section 69 of the Act after copiously reading the plaint before us. According to him, the plaint, if read as a whole, would show that the suit was only to enforce a right arising from the partnership itself, in that clause 25 (d) of the partnership deed was specifically set out in the plaint. This being the case, according to him, the trial court was correct and the High Court was in error.5. Shri Subramonium Prasad, learned Senior counsel appearing on behalf of the respondents supported the High Courts Judgment, and in particular, drew our attention to paragraph 18 of the plaint which reads as follows:-"Although the suit schedule property belongs to M/s. Windsor Wings Developers, the plaintiffs, being partners of the said firm, are co-owners of the same. Hence, the plaintiffs are entitled to file this suit even independently of the partnership firm. The cause of action for filing this suit is common to both the plaintiffs and has arisen in common against all the defendants. The plaintiffs are represented by their respective constituted attorneys in this case. The concerned powers of attorney are produced herewith as Document Nos. 16 and 17."6. Having heard the learned Senior counsel appearing for the parties, it is clear that the plaint, read as a whole, relied upon clause 25 (d) of the Partnership Deed which specifically states that no partners of the firm shall without the consent in writing of the other partners be entitled to transfer immovable property belonging to the firm. The plaint then goes on to say that the suit schedule property was purchased out of the funds of the firm for the purpose of development and sale. In paragraph 11, the plaintiffs discovered that a sale deed has been executed by the first defendant. It has been specifically stated that the plaintiffs had never consented to the same and the first defendant has no authority to sell any immovable property belonging to the firm. The plaint, read as a whole, leaves no manner of doubt that the basis for the suit is Section 69 of the Partnership Act read with clause 25 (d) of the Partnership Deed dated 29th December, 1995. Paragraph 18 of the plaint does not carry the matter further inasmuch as the only sentence which could possibly be relied upon, and which was relied upon by the High Court, is that the plaintiffs are entitled to file the suit even independently of the partnership firm. Having found that the basis of the suit is the factum of partnership and having relied upon clause 25 (d) of the Partnership Deed, it is clear that the Trial Court correctly found that the bar of Section 69 of the Act was attracted in the facts of this case. | 1[ds]6. Having heard the learned Senior counsel appearing for the parties, it is clear that the plaint, read as a whole, relied upon clause 25 (d) of the Partnership Deed which specifically states that no partners of the firm shall without the consent in writing of the other partners be entitled to transfer immovable property belonging to the firm. The plaint then goes on to say that the suit schedule property was purchased out of the funds of the firm for the purpose of development and sale. In paragraph 11, the plaintiffs discovered that a sale deed has been executed by the first defendant. It has been specifically stated that the plaintiffs had never consented to the same and the first defendant has no authority to sell any immovable property belonging to the firm. The plaint, read as a whole, leaves no manner of doubt that the basis for the suit is Section 69 of the Partnership Act read with clause 25 (d) of the Partnership Deed dated 29th December, 1995. Paragraph 18 of the plaint does not carry the matter further inasmuch as the only sentence which could possibly be relied upon, and which was relied upon by the High Court, is that the plaintiffs are entitled to file the suit even independently of the partnership firm. Having found that the basis of the suit is the factum of partnership and having relied upon clause 25 (d) of the Partnership Deed, it is clear that the Trial Court correctly found that the bar of Section 69 of the Act was attracted in the facts of this case | 1 | 1,151 | 295 | ### 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:
No.1071 of 2003 filed on 11th December, 2003 by two partners against the remaining partner and an unregistered firm seeking to cancel a sale made on 26th April, 2003 by the defendant partner without the consent of all the partners. A preliminary objection was taken stating that the suit was hit by Section 69 of the Indian Partnership Act, which reads as follows:-"69. Effect of non-registration.-(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect-(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner.(4) This section shall not apply-(a) to firms or to partners in firms which have no place of business in the territories to which this Act extends or whose places of business in the said territories, are situated in areas to which, by notification under Section 56, this Chapter does not apply, or(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.3. The trial court, by a Judgment dated 19th April, 2006, held, on a reading of the plaint as a whole, that the suit was hit by the said Section and, therefore, was not maintainable. The High Court in appeal against the said Judgment reversed the finding of the Trial Court by the impugned judgment dated 8th November, 2013, holding that a reading of the plaint leads to the conclusion that the plaintiffs are actually enforcing their rights as co-owners of the property, and not as partners of a firm and, therefore, the suit would be maintainable.4. Shri S. Gurukrishna Kumar, learned Senior counsel appearing on behalf of the appellant, pressed into service Section 69 of the Act after copiously reading the plaint before us. According to him, the plaint, if read as a whole, would show that the suit was only to enforce a right arising from the partnership itself, in that clause 25 (d) of the partnership deed was specifically set out in the plaint. This being the case, according to him, the trial court was correct and the High Court was in error.5. Shri Subramonium Prasad, learned Senior counsel appearing on behalf of the respondents supported the High Courts Judgment, and in particular, drew our attention to paragraph 18 of the plaint which reads as follows:-"Although the suit schedule property belongs to M/s. Windsor Wings Developers, the plaintiffs, being partners of the said firm, are co-owners of the same. Hence, the plaintiffs are entitled to file this suit even independently of the partnership firm. The cause of action for filing this suit is common to both the plaintiffs and has arisen in common against all the defendants. The plaintiffs are represented by their respective constituted attorneys in this case. The concerned powers of attorney are produced herewith as Document Nos. 16 and 17."6. Having heard the learned Senior counsel appearing for the parties, it is clear that the plaint, read as a whole, relied upon clause 25 (d) of the Partnership Deed which specifically states that no partners of the firm shall without the consent in writing of the other partners be entitled to transfer immovable property belonging to the firm. The plaint then goes on to say that the suit schedule property was purchased out of the funds of the firm for the purpose of development and sale. In paragraph 11, the plaintiffs discovered that a sale deed has been executed by the first defendant. It has been specifically stated that the plaintiffs had never consented to the same and the first defendant has no authority to sell any immovable property belonging to the firm. The plaint, read as a whole, leaves no manner of doubt that the basis for the suit is Section 69 of the Partnership Act read with clause 25 (d) of the Partnership Deed dated 29th December, 1995. Paragraph 18 of the plaint does not carry the matter further inasmuch as the only sentence which could possibly be relied upon, and which was relied upon by the High Court, is that the plaintiffs are entitled to file the suit even independently of the partnership firm. Having found that the basis of the suit is the factum of partnership and having relied upon clause 25 (d) of the Partnership Deed, it is clear that the Trial Court correctly found that the bar of Section 69 of the Act was attracted in the facts of this case.
### Response:
1
### Explanation:
6. Having heard the learned Senior counsel appearing for the parties, it is clear that the plaint, read as a whole, relied upon clause 25 (d) of the Partnership Deed which specifically states that no partners of the firm shall without the consent in writing of the other partners be entitled to transfer immovable property belonging to the firm. The plaint then goes on to say that the suit schedule property was purchased out of the funds of the firm for the purpose of development and sale. In paragraph 11, the plaintiffs discovered that a sale deed has been executed by the first defendant. It has been specifically stated that the plaintiffs had never consented to the same and the first defendant has no authority to sell any immovable property belonging to the firm. The plaint, read as a whole, leaves no manner of doubt that the basis for the suit is Section 69 of the Partnership Act read with clause 25 (d) of the Partnership Deed dated 29th December, 1995. Paragraph 18 of the plaint does not carry the matter further inasmuch as the only sentence which could possibly be relied upon, and which was relied upon by the High Court, is that the plaintiffs are entitled to file the suit even independently of the partnership firm. Having found that the basis of the suit is the factum of partnership and having relied upon clause 25 (d) of the Partnership Deed, it is clear that the Trial Court correctly found that the bar of Section 69 of the Act was attracted in the facts of this case
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Srinivas Ram Kumar Vs. Mahabir Prasad And Others | To quote the words of Lord Thankerton in Bibhabati v. Rammendra Narayan,51 C. W. N. 98 : (A. I. R. (34) 1947 P. C.19) "it is not by any means a cast iron practice"; there may occur cases of unusual nature which might constrain us in interfere with the concurrent findings of fact in avoid miscarriage of justice. The case before us, however, has nothing unusual in it and involves a pure question of fact. There is no document in writing in proof of the agreements upon which the pltfs case is based and the decision hinges primarily upon appreciation of the oral evidence that has been adduced by the parties. The trial Judge, who had the witnesses before him, was the best person to weigh and appraise their credibility and the conclusion, which he arrived at, have been affirmed in their entirety by the H. C. on appeal. In these circumstances, we see no reason whatsoever to go beyond the facts which have been found against the applt. by both the Cts. below.9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right and that the H. C. took an undoubtedly rigid and technical view in reversing this part of the decree at the Subordinate Judge. It is true that it was no part of the pltfs case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursusance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A pltf. may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleading and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the defts own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances when no injustice can possibly result to the deft., it may not be proper to drive the pltf, to file a separate suit.As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee inMohan Manucha v. Manzoor Ahmad,70 I. A. 1 : (A. I. R. (30) 1943 P. C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P. C. But the P. C. held that it was open in such circumstances to the pltf to repudiate the transaction altogether and claim a relief outside it in the form of restitution under S. 65, Contract Art. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the resp. could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the applt. even though the appeal was heardex partein the absence of the resp.10. Mr. Harish Chandra, appearing for the second party defts., raised the question of interest in connection with the pltfs. claim for a money decree. His contention is that the pltf. could not claim any interest so long as he was in possession of the house and he could not also claim any interest after that, as his clients made a tender of the sum of Rs. 30,000 by sending a hundi for that amount to the pltf. by registered post on 12-7-1943 which the pltf. refused to accept. The first part of the contention is undoubtedly correct and is not disputed on behalf of the pltf. We feel difficulty, however, in accepting the second part of the contention raised by Mr. Harish Chandra. The receipt of this hundi was totally denied by the pltf. both in the plaint as well as in the evidence and it is doubtful whether even if the story was true, it could constitute a valid tender in law. The defts. undoubtedly had the use of this money all this time and in our opinion the pltf. is entitled to some interest. The learned counsel appearing for both the parties, at the close of their arguments, left this question of interest to be determined by us and we think that it would be quite fair if we allow interest on the sum of Rs. 30,000 at the rate of 4% per annum from the beginning of September 1943. It is admitted that the pltfs possession of the house ceased by the end of August 1943.1 | 1[ds]8. The first contention put forward by the learned counsel appears to us to be plainly unsustainable. When the Cls. below have given concurrent findings on pure questions of fact, this Ct. would not ordinarily interfere with these findings and review the evidence for the third time unless there are exceptional circumstances justifying departure from this normal practice. The position may undoubtedly be different if the inference is one of law from facts admitted and proved or where the finding ,of fact is materially affected by violation of any rule of law or procedure. The practice adopted by this Ct. is similar to what has always been acted upon by the Judicialcase before us, however, has nothing unusual in it and involves a pure question of fact. There is no document in writing in proof of the agreements upon which the pltfs case is based and the decision hinges primarily upon appreciation of the oral evidence that has been adduced by the parties. The trial Judge, who had the witnesses before him, was the best person to weigh and appraise their credibility and the conclusion, which he arrived at, have been affirmed in their entirety by the H. C. on appeal. In these circumstances, we see no reason whatsoever to go beyond the facts which have been found against the applt. by both the Cts. below.9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right and that the H. C. took an undoubtedly rigid and technical view in reversing this part of the decree at the Subordinate Judge. It is true that it was no part of the pltfs case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursusance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A pltf. may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleading and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the defts own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances when no injustice can possibly result to the deft., it may not be proper to drive the pltf, to file a separate suit.As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee inMohan Manucha v. Manzoor Ahmad,70 I. A. 1 : (A. I. R. (30) 1943 P. C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P. C. But the P. C. held that it was open in such circumstances to the pltf to repudiate the transaction altogether and claim a relief outside it in the form of restitution under S. 65, Contract Art. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the resp. could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the applt. even though the appeal was heardex partein the absence of thereceipt of this hundi was totally denied by the pltf. both in the plaint as well as in the evidence and it is doubtful whether even if the story was true, it could constitute a valid tender in law. The defts. undoubtedly had the use of this money all this time and in our opinion the pltf. is entitled to some interest. The learned counsel appearing for both the parties, at the close of their arguments, left this question of interest to be determined by us and we think that it would be quite fair if we allow interest on the sum of Rs. 30,000 at the rate of 4% per annum from the beginning of SeptemberIt is admitted that the pltfs possession of the house ceased by the end of August 1943. | 1 | 2,377 | 1,012 | ### 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 quote the words of Lord Thankerton in Bibhabati v. Rammendra Narayan,51 C. W. N. 98 : (A. I. R. (34) 1947 P. C.19) "it is not by any means a cast iron practice"; there may occur cases of unusual nature which might constrain us in interfere with the concurrent findings of fact in avoid miscarriage of justice. The case before us, however, has nothing unusual in it and involves a pure question of fact. There is no document in writing in proof of the agreements upon which the pltfs case is based and the decision hinges primarily upon appreciation of the oral evidence that has been adduced by the parties. The trial Judge, who had the witnesses before him, was the best person to weigh and appraise their credibility and the conclusion, which he arrived at, have been affirmed in their entirety by the H. C. on appeal. In these circumstances, we see no reason whatsoever to go beyond the facts which have been found against the applt. by both the Cts. below.9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right and that the H. C. took an undoubtedly rigid and technical view in reversing this part of the decree at the Subordinate Judge. It is true that it was no part of the pltfs case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursusance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A pltf. may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleading and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the defts own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances when no injustice can possibly result to the deft., it may not be proper to drive the pltf, to file a separate suit.As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee inMohan Manucha v. Manzoor Ahmad,70 I. A. 1 : (A. I. R. (30) 1943 P. C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P. C. But the P. C. held that it was open in such circumstances to the pltf to repudiate the transaction altogether and claim a relief outside it in the form of restitution under S. 65, Contract Art. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the resp. could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the applt. even though the appeal was heardex partein the absence of the resp.10. Mr. Harish Chandra, appearing for the second party defts., raised the question of interest in connection with the pltfs. claim for a money decree. His contention is that the pltf. could not claim any interest so long as he was in possession of the house and he could not also claim any interest after that, as his clients made a tender of the sum of Rs. 30,000 by sending a hundi for that amount to the pltf. by registered post on 12-7-1943 which the pltf. refused to accept. The first part of the contention is undoubtedly correct and is not disputed on behalf of the pltf. We feel difficulty, however, in accepting the second part of the contention raised by Mr. Harish Chandra. The receipt of this hundi was totally denied by the pltf. both in the plaint as well as in the evidence and it is doubtful whether even if the story was true, it could constitute a valid tender in law. The defts. undoubtedly had the use of this money all this time and in our opinion the pltf. is entitled to some interest. The learned counsel appearing for both the parties, at the close of their arguments, left this question of interest to be determined by us and we think that it would be quite fair if we allow interest on the sum of Rs. 30,000 at the rate of 4% per annum from the beginning of September 1943. It is admitted that the pltfs possession of the house ceased by the end of August 1943.1
### Response:
1
### Explanation:
8. The first contention put forward by the learned counsel appears to us to be plainly unsustainable. When the Cls. below have given concurrent findings on pure questions of fact, this Ct. would not ordinarily interfere with these findings and review the evidence for the third time unless there are exceptional circumstances justifying departure from this normal practice. The position may undoubtedly be different if the inference is one of law from facts admitted and proved or where the finding ,of fact is materially affected by violation of any rule of law or procedure. The practice adopted by this Ct. is similar to what has always been acted upon by the Judicialcase before us, however, has nothing unusual in it and involves a pure question of fact. There is no document in writing in proof of the agreements upon which the pltfs case is based and the decision hinges primarily upon appreciation of the oral evidence that has been adduced by the parties. The trial Judge, who had the witnesses before him, was the best person to weigh and appraise their credibility and the conclusion, which he arrived at, have been affirmed in their entirety by the H. C. on appeal. In these circumstances, we see no reason whatsoever to go beyond the facts which have been found against the applt. by both the Cts. below.9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right and that the H. C. took an undoubtedly rigid and technical view in reversing this part of the decree at the Subordinate Judge. It is true that it was no part of the pltfs case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursusance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A pltf. may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleading and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the defts own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances when no injustice can possibly result to the deft., it may not be proper to drive the pltf, to file a separate suit.As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee inMohan Manucha v. Manzoor Ahmad,70 I. A. 1 : (A. I. R. (30) 1943 P. C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P. C. But the P. C. held that it was open in such circumstances to the pltf to repudiate the transaction altogether and claim a relief outside it in the form of restitution under S. 65, Contract Art. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the resp. could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the applt. even though the appeal was heardex partein the absence of thereceipt of this hundi was totally denied by the pltf. both in the plaint as well as in the evidence and it is doubtful whether even if the story was true, it could constitute a valid tender in law. The defts. undoubtedly had the use of this money all this time and in our opinion the pltf. is entitled to some interest. The learned counsel appearing for both the parties, at the close of their arguments, left this question of interest to be determined by us and we think that it would be quite fair if we allow interest on the sum of Rs. 30,000 at the rate of 4% per annum from the beginning of SeptemberIt is admitted that the pltfs possession of the house ceased by the end of August 1943.
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THE STATE BANK OF INDIA AND ORS Vs. P. SOUPRAMANIANE | has observed on multiple occasions that in criminal jurisdiction, Courts do not have the power to pass a direction that the said conviction will not have any impact on the convicts services. See: Girraj Prasad Meena v. State of Rajasthan (2014) 13 SCC 674 ) on the employer who has the liberty of dealing with his employees suitably. 6. Though we do not agree with the reasons given by the High Court for setting aside the order of discharge of the Respondent from service, it is necessary to examine whether Section 10 (1)(b)(i) of Banking Regulation Act is applicable to the facts of the case. Conviction for an offence involving moral turpitude disqualifies a person from continuing in service in a bank. The conundrum that arises in this case is whether the conviction of the Respondent under Section 324 IPC can be said to be for an offence involving moral turpitude. 7. Moral Turpitude as defined in the Blacks Law Dictionary (6 th ed.) is as follows: The Act of baseness, vileness, or the depravity in the private and social duties which man owes to 1 Sushil Kumar Singhal v. Punjab National Bank, (2010) 8 SCC 573 2 This Court has observed on multiple occasions that in criminal jurisdiction, Courts do not have the power to pass a direction that the said conviction will not have any impact on the convicts services. See: Girraj Prasad Meena v. State of Rajasthan (2014) 13 SCC 674 his follow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man.( p. 1008). implies something immoral in itself regardless of it being punishable by law restricted to the gravest offences, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind. (p. 1517). According to Bouviers Law Dictionary, Moral Turpitude is : An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man. Burton Legal Thesaurus defines Moral Turpitude as : Bad faith, bad repute, corruption, defilement, delinquency, discredit, dishonor, shame, guilt, knavery, misdoing, perversion, shame, ice, wrong. 8. There is no doubt that there is an obligation on the Management of the Bank to discontinue the services of an employee who has been convicted by a criminal court for an offence involving moral turpitude ( Sushil Kumar Singhal ). Though every offence is a crime against the society, discontinuance from service according to the Banking Regulation Act can be only for committing an offence involving moral turpitude. Acts which disclose depravity and wickedness of character can be categorized as offences involving moral turpitude. Whether an offence involves moral turpitude or not depends upon the facts ( Allahabad Bank v. Deepak Kumar Bhola ) and the circumstances of the case. Pawan Kumar v. State of Haryana, (1996) 4 SCC 17 & para;12. Ordinarily, the tests that can be applied for judging an offence involving moral turpitude are: a) Whether the act leading to a conviction was such as could shock the moral conscience or society in general; b) Whether the motive which led to the act was a base one, and c) Whether on account of the act having been committed the perpetrators could be considered to be of a depraved character or a person who was to be looked down upon by the society. Mangali v. Chakki Lal, AIR 1963 ALL 527 . The other important factors that are to be kept in mind to conclude that an offence involves moral turpitude are :– the person who commits the offence; the person against whom it is committed; the manner and circumstances in which it is alleged to have been committed; and the values of the society. Jorabhai Hirabhai Rabari v. District Development Officer, Mehsana, AIR 1996 Guj 3 . According to the National Incident – Based Reporting System (NIBRS), a crime data collection system used in the United States of America, each offence belongs to one of the three categories which are: crimes against persons, crimes against property, and crimes against society. Crimes against persons include murder, rape, and assault where the victims are always individuals. The object of crimes against property, for example, robbery and burglary is to obtain money, property, or some other benefits. Crimes against society for example gambling, prostitution, and drug violations, represent societys prohibition against engaging in certain types of activities. Conviction of any alien of a crime involving moral turpitude is a ground for deportation under the Immigration Law in the United States of America. To qualify as a crime involving moral turpitude for such purpose, it requires both reprehensible conduct and scienter, whether with specific intent, deliberateness, willfulness or recklessness. Cristoval Silva – Trevina 241 & N Dec 687 (AG 2008). 9. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act, NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause 10 Cristoval Silva – Trevina 241 & N Dec 687 (AG 2008) the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. | 0[ds]5. We do not agree with the reasons given by the High Court for setting aside the order of discharge and directing the reinstatement of the Respondent in service. A show- cause notice was issued to the Respondent in which it was categorically mentioned that the Respondent cannot continue in service after his conviction in a criminal case involving moral turpitude in view of Section 10(1)(b)(i) of the Banking Regulation Act, 1949. After considering the explanation of the Respondent, an order of discharge was passed. The High Court is not right in holding that no reasons had been given by the bank for discontinuing the Respondent from service. The High Court committed an error in holding that the order of discharge should be set aside on the ground that the provision of law under which the Respondent was discharged was not mentioned in the order. Yet another reason given by the High Court for interference with the order of discharge is that the criminal court released the Respondent on probation only to permit him to continue in service. The release under probation does not entitle an employee to claim a right to continue in service. In fact the employer is under an obligation todiscontinue the services of an employee convicted of an offence involving moral turpitude. Sushil Kumar Singhal v. Punjab National Bank, (2010) 8 SCC 573 The observations made by a criminal court are not binding (This Court has observed on multiple occasions that in criminal jurisdiction, Courts do not have the power to pass a direction that the said conviction will not have any impact on the convicts services.6. Though we do not agree with the reasons given by the High Court for setting aside the order of discharge of the Respondent from service, it is necessary to examine whether Section 10 (1)(b)(i) of Banking Regulation Act is applicable to the facts of the case. Conviction for an offence involving moral turpitude disqualifies a person from continuing in service in a bank.8. There is no doubt that there is an obligation on the Management of the Bank to discontinue the services of an employee who has been convicted by a criminal court for an offence involving moral turpitude ( Sushil Kumar Singhal ). Though every offence is a crime against the society, discontinuance from service according to the Banking Regulation Act can be only for committing an offence involving moral turpitude. Acts which disclose depravity and wickedness of character can be categorized as offences involving moral turpitude. Whether an offence involves moral turpitude or not depends upon the facts ( Allahabad Bank v. Deepak Kumar Bhola ) and the circumstancesof the case. Pawan Kumar v. State of Haryana, (1996) 4 SCC 17 & para;12. Ordinarily, the tests that can be applied for judging an offence involving moral turpitudea) Whether the act leading to a conviction was such as could shock the moral conscience or society in general;b) Whether the motive which led to the act was a base one, andc) Whether on account of the act having been committed the perpetrators could be considered to be of a depraved character or a person who was to be looked down upon by the society. Mangali v. Chakki Lal, AIR 1963 ALL 527 The other important factors that are to be kept in mind to conclude that an offence involves moral turpitude are :– the person who commits the offence; the person against whom it is committed; the manner and circumstances in which it is alleged to have been committed; and the values of the society. Jorabhai Hirabhai Rabari v. District Development Officer, Mehsana, AIR 1996 Guj 3 . According to the National Incident – Based Reporting System (NIBRS), a crime data collection system used in the United States of America, each offence belongs to one of the three categories which are: crimes against persons, crimes against property, and crimes against society. Crimes against persons include murder, rape, and assault where the victims are always individuals. The object of crimes against property, for example, robbery and burglary is to obtain money, property, or some other benefits. Crimes against society for example gambling, prostitution, and drug violations, represent societys prohibition against engaging in certain types of activities. Conviction of any alien of a crime involving moral turpitude is a ground for deportation under the Immigration Law in the United States of America. To qualify as a crime involving moral turpitude for such purpose, it requires both reprehensible conduct and scienter, whether with specific intent, deliberateness, willfulness or recklessness. Cristoval Silva – Trevina 241 & N Dec 687 (AG 2008)9. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act, NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause 10 Cristoval Silva – Trevina 241 & N Dec 687 (AG 2008) the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. | 0 | 2,104 | 1,064 | ### Instruction:
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has observed on multiple occasions that in criminal jurisdiction, Courts do not have the power to pass a direction that the said conviction will not have any impact on the convicts services. See: Girraj Prasad Meena v. State of Rajasthan (2014) 13 SCC 674 ) on the employer who has the liberty of dealing with his employees suitably. 6. Though we do not agree with the reasons given by the High Court for setting aside the order of discharge of the Respondent from service, it is necessary to examine whether Section 10 (1)(b)(i) of Banking Regulation Act is applicable to the facts of the case. Conviction for an offence involving moral turpitude disqualifies a person from continuing in service in a bank. The conundrum that arises in this case is whether the conviction of the Respondent under Section 324 IPC can be said to be for an offence involving moral turpitude. 7. Moral Turpitude as defined in the Blacks Law Dictionary (6 th ed.) is as follows: The Act of baseness, vileness, or the depravity in the private and social duties which man owes to 1 Sushil Kumar Singhal v. Punjab National Bank, (2010) 8 SCC 573 2 This Court has observed on multiple occasions that in criminal jurisdiction, Courts do not have the power to pass a direction that the said conviction will not have any impact on the convicts services. See: Girraj Prasad Meena v. State of Rajasthan (2014) 13 SCC 674 his follow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man.( p. 1008). implies something immoral in itself regardless of it being punishable by law restricted to the gravest offences, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind. (p. 1517). According to Bouviers Law Dictionary, Moral Turpitude is : An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man. Burton Legal Thesaurus defines Moral Turpitude as : Bad faith, bad repute, corruption, defilement, delinquency, discredit, dishonor, shame, guilt, knavery, misdoing, perversion, shame, ice, wrong. 8. There is no doubt that there is an obligation on the Management of the Bank to discontinue the services of an employee who has been convicted by a criminal court for an offence involving moral turpitude ( Sushil Kumar Singhal ). Though every offence is a crime against the society, discontinuance from service according to the Banking Regulation Act can be only for committing an offence involving moral turpitude. Acts which disclose depravity and wickedness of character can be categorized as offences involving moral turpitude. Whether an offence involves moral turpitude or not depends upon the facts ( Allahabad Bank v. Deepak Kumar Bhola ) and the circumstances of the case. Pawan Kumar v. State of Haryana, (1996) 4 SCC 17 & para;12. Ordinarily, the tests that can be applied for judging an offence involving moral turpitude are: a) Whether the act leading to a conviction was such as could shock the moral conscience or society in general; b) Whether the motive which led to the act was a base one, and c) Whether on account of the act having been committed the perpetrators could be considered to be of a depraved character or a person who was to be looked down upon by the society. Mangali v. Chakki Lal, AIR 1963 ALL 527 . The other important factors that are to be kept in mind to conclude that an offence involves moral turpitude are :– the person who commits the offence; the person against whom it is committed; the manner and circumstances in which it is alleged to have been committed; and the values of the society. Jorabhai Hirabhai Rabari v. District Development Officer, Mehsana, AIR 1996 Guj 3 . According to the National Incident – Based Reporting System (NIBRS), a crime data collection system used in the United States of America, each offence belongs to one of the three categories which are: crimes against persons, crimes against property, and crimes against society. Crimes against persons include murder, rape, and assault where the victims are always individuals. The object of crimes against property, for example, robbery and burglary is to obtain money, property, or some other benefits. Crimes against society for example gambling, prostitution, and drug violations, represent societys prohibition against engaging in certain types of activities. Conviction of any alien of a crime involving moral turpitude is a ground for deportation under the Immigration Law in the United States of America. To qualify as a crime involving moral turpitude for such purpose, it requires both reprehensible conduct and scienter, whether with specific intent, deliberateness, willfulness or recklessness. Cristoval Silva – Trevina 241 & N Dec 687 (AG 2008). 9. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act, NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause 10 Cristoval Silva – Trevina 241 & N Dec 687 (AG 2008) the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature.
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5. We do not agree with the reasons given by the High Court for setting aside the order of discharge and directing the reinstatement of the Respondent in service. A show- cause notice was issued to the Respondent in which it was categorically mentioned that the Respondent cannot continue in service after his conviction in a criminal case involving moral turpitude in view of Section 10(1)(b)(i) of the Banking Regulation Act, 1949. After considering the explanation of the Respondent, an order of discharge was passed. The High Court is not right in holding that no reasons had been given by the bank for discontinuing the Respondent from service. The High Court committed an error in holding that the order of discharge should be set aside on the ground that the provision of law under which the Respondent was discharged was not mentioned in the order. Yet another reason given by the High Court for interference with the order of discharge is that the criminal court released the Respondent on probation only to permit him to continue in service. The release under probation does not entitle an employee to claim a right to continue in service. In fact the employer is under an obligation todiscontinue the services of an employee convicted of an offence involving moral turpitude. Sushil Kumar Singhal v. Punjab National Bank, (2010) 8 SCC 573 The observations made by a criminal court are not binding (This Court has observed on multiple occasions that in criminal jurisdiction, Courts do not have the power to pass a direction that the said conviction will not have any impact on the convicts services.6. Though we do not agree with the reasons given by the High Court for setting aside the order of discharge of the Respondent from service, it is necessary to examine whether Section 10 (1)(b)(i) of Banking Regulation Act is applicable to the facts of the case. Conviction for an offence involving moral turpitude disqualifies a person from continuing in service in a bank.8. There is no doubt that there is an obligation on the Management of the Bank to discontinue the services of an employee who has been convicted by a criminal court for an offence involving moral turpitude ( Sushil Kumar Singhal ). Though every offence is a crime against the society, discontinuance from service according to the Banking Regulation Act can be only for committing an offence involving moral turpitude. Acts which disclose depravity and wickedness of character can be categorized as offences involving moral turpitude. Whether an offence involves moral turpitude or not depends upon the facts ( Allahabad Bank v. Deepak Kumar Bhola ) and the circumstancesof the case. Pawan Kumar v. State of Haryana, (1996) 4 SCC 17 & para;12. Ordinarily, the tests that can be applied for judging an offence involving moral turpitudea) Whether the act leading to a conviction was such as could shock the moral conscience or society in general;b) Whether the motive which led to the act was a base one, andc) Whether on account of the act having been committed the perpetrators could be considered to be of a depraved character or a person who was to be looked down upon by the society. Mangali v. Chakki Lal, AIR 1963 ALL 527 The other important factors that are to be kept in mind to conclude that an offence involves moral turpitude are :– the person who commits the offence; the person against whom it is committed; the manner and circumstances in which it is alleged to have been committed; and the values of the society. Jorabhai Hirabhai Rabari v. District Development Officer, Mehsana, AIR 1996 Guj 3 . According to the National Incident – Based Reporting System (NIBRS), a crime data collection system used in the United States of America, each offence belongs to one of the three categories which are: crimes against persons, crimes against property, and crimes against society. Crimes against persons include murder, rape, and assault where the victims are always individuals. The object of crimes against property, for example, robbery and burglary is to obtain money, property, or some other benefits. Crimes against society for example gambling, prostitution, and drug violations, represent societys prohibition against engaging in certain types of activities. Conviction of any alien of a crime involving moral turpitude is a ground for deportation under the Immigration Law in the United States of America. To qualify as a crime involving moral turpitude for such purpose, it requires both reprehensible conduct and scienter, whether with specific intent, deliberateness, willfulness or recklessness. Cristoval Silva – Trevina 241 & N Dec 687 (AG 2008)9. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act, NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause 10 Cristoval Silva – Trevina 241 & N Dec 687 (AG 2008) the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature.
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Madanlal Fakirchand Dudhediya Vs. Changdeo Sugar Mills Limited, Bombay & Others | of Lord Davey in the case of Hilder v. Dexter (C), the observations being :"This sub-section, therefore, permits a limited application of the companys capital in payment of a commission (Lord Davey was referring to sub-s. (1) of S. 8 of the English Act of 1900)." I have stated above that these observations of Lord Davey lend no authority for contending that the profit of a company may not be applied in paying a commission. In our view, the word commission in the Act of 1956 is not a word of art and there is no reason why we should not construe it in the ordinary way.17. It was next contended for the plaintiff that the agreements dated 18-12-1939 and 22-4-1941 were executed agreements. Shares to which reference was made in these agreements were already allotted to the plaintiff and other promoters. Payments in respect of the shares were also already made. In these circumstances it was contended for the plaintiff that the above said agreements would not fall within the purview of S. 76 of the Act. It was contended that the provisions of S. 76 were prospective provisions and that the section provided that a company might pay a commission to any person in consideration of the said person subscribing or agreeing to subscribe, for shares or debentures or procuring or agreeing to procure subscriptions for shares or debentures. Mr. Munshis argument was that if a commission had to be paid as consideration for his having already subscribed or agreed to subscribe, or having already procured or agreed to procure subscriptions, for shares or debentures before the coming into force of the Act, the provisions of S. 76 would not be attracted. Here the plaintiff and other promoters had already, before 1-4-1956, agreed to subscribe for shares and, therefore, said Mr. Munshi, the provisions of S. 76 would not apply to this case, and since S. 76 would not apply, the provisions of S. 9 also would not be attracted. We have examined this contention carefully, but we regret we are unable to accept it. The agreements dated 18-12-1939 and 22-04-1941 represented a contract between the parties. In pursuance of that contract, the Company agreed to pay a certain commission to the promoters; and the consideration for this was the agreement on the part of the promoters to subscribe for shares. That being so, we cannot accept the contention that the provisions of sub-s. (1) of S. 76 would not be attracted in this case. Whatever commission the plaintiff is asking the Company to pay to him under these agreements, he is claiming by way of a consideration for the agreement between himself and the Company, the agreement being one of subscription for shares. The learned counsel for the first defendant company has contended before us, and rightly, that after the coming into force of the Act of 1956, no such payment by way of commission could be legally made under sub-s. (1) of S. 76 as would contravene the provisions of sub clause (ii) of clause (b) of sub-s. (1). The claim which the plaintiff has made is in contravention of sub clause (ii) of clause (b) and cannot be sustained. We are of the view that S. 76 applies to these agreements and accordingly the provisions of S. 9 would also be attracted. Section 9 lays down that, save as otherwise expressly provided in the Act, the provisions of the Act shall have effect, notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of this Act. Mr. Tarkundes submission is that since both the agreements referred to above had already been executed before the coming into force of the Act,it would not be proper to interfere with the terms of the agreement. But, as S. 9 says, the provisions of the Act (i.e. S. 76 in the context of this case) shall have effect, notwithstanding the fact that the agreements were executed before the coming into force of this Act. Therefore, in view of S. 9 read with S. 76 of the Act, we must accept the contention of the first defendant company that the plaintiff would not be entitled to receive any commission from the company in contravention of sub-clause (ii) of clause (b) of sub-s. (1) of S. 76.18. Mr. Munshi has next contended that since the enactment of the Capital Issues (Continuance of Control) Act, XXIX of 1947, debenture would also be capital of the company. Mr. Munshi has referred us to S. 2 of the Capital Issues (Continuance of Control) Act. Section 2 says : "In this Act, (a) issue of capital means the issuing of any securities whether for cash or otherwise; (b) securities means any of the following instruments issued, or to be issued, by or for the benefit of a company, whether incorporated in the States or not, namely (i) shares, stocks and bonds; (ii) debentures". Relying upon S. 2. Mr. Munshi contends that the scope of the word capital has been enlarged so as to include securities and as securities mean debentures, the debentures would be capital of the company. It is to be remembered, however, that the important words in S. 2 of the Capital Issues (Continuance of Control) Act are "in this Act."Therefore, the definitions of securities and of the expression issue of capital as contained in the Capital Issues (Continuance of Control) Act would not govern the meaning of the term debenture as it occurs in the Companies Act, 1956. So far as the Companies Act, 1956, is concerned, I have already stated, for the reasons given in the previous part of this judgment, that debenture is an instrument under seat evidencing a debt. It is not capital. | 0[ds]With respect, we are unable to agree with Mr. Munshi. By the agreement datedthe changes made in the prior agreement were mainly two. The Managing Directors rights, which each of the promoters was to enjoy by turn, were surrendered and the aggregate commission payable to the promoters was reduced to a sum equal to 6 1/4 per cent from 12 1/2 per cent of the net profit of the Company. The essential character of the original agreement, viz. that the commission was to be paid in consideration of the promoters subscribing or agreeing to subscribe for shares or debentures was preserved. It was because of that agreement that the commission, in all aggregating to 6 1/4 per cent of the net profit was agreed to be paid to the plaintiff, defendant No. 2, defendant No. 3 and the father of defendants Nos. 7 to 10 by the agreement datedThe words "we hereby further agree to receive 6 1/4 per cent as promoters commission instead of 12 1/2 per cent as provided in our respective agreements with the Company" are clearly referable to the agreement datedwhich was indisputably an agreement for subscribing for shares or debentures. In our view, therefore, the agreement datedis an agreement to pay commission in consideration of an agreement to subscribe for shares or debentures or procure subscriptions for shares or debentures. Besides, it is to be noted that in the plaint there is no pleading that the character of the original agreement datedwas so thoroughly changed that the agreement datedceased to be an agreement for subscribing for shares or debentures. On the contrary, in paragraph 25 of the plaint, the plaintiff averred that the amounts of the commission were payable as before by the Company. The words "as before" would destroy the present contention of the plaintiff that the agreement datedwas not an agreement to pay commission in consideration of subscribing or agreeing to subscribe for shares orare unable to agree. The English Acts regulated the structure of limited companies in England and concerned themselves with the powers of the said companies and the limits within which they were free to act. The Indian enactment of 1956 was passed with a view to regulate the affairs of the companies in India, and that being so it would not be right, in our view, to turn to the English Acts for construing the provisions of the Indian Act ofIn our view, S. 76,(1) is both an enabling and a restrictive provision. It enables the companies to pay commission on shares and debentures, but restricts and regulates the quantum of the commission. The words "5 per cent of the price at which the shares are issued" and the words "2 1/2 per cent of the price at which the debentures are issued" which occur in(1) are indicative of the quantum of the commission to be paid. They are not indicative, in our view, of the source from which the payment of the commission may proceed. In our opinion, therefore, upon a natural construction of the language of(ii) of clause (b) of(I) of S. 76, it must be held that the payment of commission on shares and debentures might proceed from any source, capital monies or profit, but it is to be restricted up to a certain percentage, the percentage being different in the case of shares and debentures.There is another reason also why we feel we must reject Mr. Munshis contention that the restriction upon payment of a commission imposed by(1) of S. 76 extends only to the application of the capital of a company and not to the profit of the company. As I have said in the earlier part of this judgment, the restriction envisaged by(1) applies to the payment of a commission, not only on shares, but on the debentures as well. In other words,(1) places debentures on the same footing as. shares so far as the payment of a commission is concerned. This must serve, in our opinion, as a serious obstacle to the contention that(1) is only an enabling provision permitting the companies to pay commission out of capital. So far as the Companies Act is concerned, debentures are not a capital of a company. As Palmer has said in his Company Precedents, the word debenture is employed to describe an instrument under seal evidencing a debt. The essence of a debenture is originally an admission of indebtedness and that is its essential characteristic, the centralhave examined this contention carefully, but we regret we are unable to accept it. The agreements dated41 represented a contract between the parties. In pursuance of that contract, the Company agreed to pay a certain commission to the promoters; and the consideration for this was the agreement on the part of the promoters to subscribe for shares. That being so, we cannot accept the contention that the provisions of(1) of S. 76 would not be attracted in this case. Whatever commission the plaintiff is asking the Company to pay to him under these agreements, he is claiming by way of a consideration for the agreement between himself and the Company, the agreement being one of subscription for shares. The learned counsel for the first defendant company has contended before us, and rightly, that after the coming into force of the Act of 1956, no such payment by way of commission could be legally made under(1) of S. 76 as would contravene the provisions of sub clause(ii) of clause (b) of(1). The claim which the plaintiff has made is in contravention of sub clause (ii) of clause (b) and cannot be sustained. We are of the view that S. 76 applies to these agreements and accordingly the provisions of S. 9 would also be attracted. Section 9 lays down that, save as otherwise expressly provided in the Act, the provisions of the Act shall have effect, notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of thisas S. 9 says, the provisions of the Act (i.e. S. 76 in the context of this case) shall have effect, notwithstanding the fact that the agreements were executed before the coming into force of this Act. Therefore, in view of S. 9 read with S. 76 of the Act, we must accept the contention of the first defendant company that the plaintiff would not be entitled to receive any commission from the company in contravention of(ii) of clause (b) of(1) of S.is to be remembered, however, that the important words in S. 2 of the Capital Issues (Continuance of Control) Act are "in this Act."Therefore, the definitions of securities and of the expression issue of capital as contained in the Capital Issues (Continuance of Control) Act would not govern the meaning of the term debenture as it occurs in the Companies Act, 1956. So far as the Companies Act, 1956, is concerned, I have already stated, for the reasons given in the previous part of this judgment, that debenture is an instrument under seat evidencing a debt. It is not capital. | 0 | 9,434 | 1,396 | ### 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 Lord Davey in the case of Hilder v. Dexter (C), the observations being :"This sub-section, therefore, permits a limited application of the companys capital in payment of a commission (Lord Davey was referring to sub-s. (1) of S. 8 of the English Act of 1900)." I have stated above that these observations of Lord Davey lend no authority for contending that the profit of a company may not be applied in paying a commission. In our view, the word commission in the Act of 1956 is not a word of art and there is no reason why we should not construe it in the ordinary way.17. It was next contended for the plaintiff that the agreements dated 18-12-1939 and 22-4-1941 were executed agreements. Shares to which reference was made in these agreements were already allotted to the plaintiff and other promoters. Payments in respect of the shares were also already made. In these circumstances it was contended for the plaintiff that the above said agreements would not fall within the purview of S. 76 of the Act. It was contended that the provisions of S. 76 were prospective provisions and that the section provided that a company might pay a commission to any person in consideration of the said person subscribing or agreeing to subscribe, for shares or debentures or procuring or agreeing to procure subscriptions for shares or debentures. Mr. Munshis argument was that if a commission had to be paid as consideration for his having already subscribed or agreed to subscribe, or having already procured or agreed to procure subscriptions, for shares or debentures before the coming into force of the Act, the provisions of S. 76 would not be attracted. Here the plaintiff and other promoters had already, before 1-4-1956, agreed to subscribe for shares and, therefore, said Mr. Munshi, the provisions of S. 76 would not apply to this case, and since S. 76 would not apply, the provisions of S. 9 also would not be attracted. We have examined this contention carefully, but we regret we are unable to accept it. The agreements dated 18-12-1939 and 22-04-1941 represented a contract between the parties. In pursuance of that contract, the Company agreed to pay a certain commission to the promoters; and the consideration for this was the agreement on the part of the promoters to subscribe for shares. That being so, we cannot accept the contention that the provisions of sub-s. (1) of S. 76 would not be attracted in this case. Whatever commission the plaintiff is asking the Company to pay to him under these agreements, he is claiming by way of a consideration for the agreement between himself and the Company, the agreement being one of subscription for shares. The learned counsel for the first defendant company has contended before us, and rightly, that after the coming into force of the Act of 1956, no such payment by way of commission could be legally made under sub-s. (1) of S. 76 as would contravene the provisions of sub clause (ii) of clause (b) of sub-s. (1). The claim which the plaintiff has made is in contravention of sub clause (ii) of clause (b) and cannot be sustained. We are of the view that S. 76 applies to these agreements and accordingly the provisions of S. 9 would also be attracted. Section 9 lays down that, save as otherwise expressly provided in the Act, the provisions of the Act shall have effect, notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of this Act. Mr. Tarkundes submission is that since both the agreements referred to above had already been executed before the coming into force of the Act,it would not be proper to interfere with the terms of the agreement. But, as S. 9 says, the provisions of the Act (i.e. S. 76 in the context of this case) shall have effect, notwithstanding the fact that the agreements were executed before the coming into force of this Act. Therefore, in view of S. 9 read with S. 76 of the Act, we must accept the contention of the first defendant company that the plaintiff would not be entitled to receive any commission from the company in contravention of sub-clause (ii) of clause (b) of sub-s. (1) of S. 76.18. Mr. Munshi has next contended that since the enactment of the Capital Issues (Continuance of Control) Act, XXIX of 1947, debenture would also be capital of the company. Mr. Munshi has referred us to S. 2 of the Capital Issues (Continuance of Control) Act. Section 2 says : "In this Act, (a) issue of capital means the issuing of any securities whether for cash or otherwise; (b) securities means any of the following instruments issued, or to be issued, by or for the benefit of a company, whether incorporated in the States or not, namely (i) shares, stocks and bonds; (ii) debentures". Relying upon S. 2. Mr. Munshi contends that the scope of the word capital has been enlarged so as to include securities and as securities mean debentures, the debentures would be capital of the company. It is to be remembered, however, that the important words in S. 2 of the Capital Issues (Continuance of Control) Act are "in this Act."Therefore, the definitions of securities and of the expression issue of capital as contained in the Capital Issues (Continuance of Control) Act would not govern the meaning of the term debenture as it occurs in the Companies Act, 1956. So far as the Companies Act, 1956, is concerned, I have already stated, for the reasons given in the previous part of this judgment, that debenture is an instrument under seat evidencing a debt. It is not capital.
### Response:
0
### Explanation:
or debentures or procure subscriptions for shares or debentures. Besides, it is to be noted that in the plaint there is no pleading that the character of the original agreement datedwas so thoroughly changed that the agreement datedceased to be an agreement for subscribing for shares or debentures. On the contrary, in paragraph 25 of the plaint, the plaintiff averred that the amounts of the commission were payable as before by the Company. The words "as before" would destroy the present contention of the plaintiff that the agreement datedwas not an agreement to pay commission in consideration of subscribing or agreeing to subscribe for shares orare unable to agree. The English Acts regulated the structure of limited companies in England and concerned themselves with the powers of the said companies and the limits within which they were free to act. The Indian enactment of 1956 was passed with a view to regulate the affairs of the companies in India, and that being so it would not be right, in our view, to turn to the English Acts for construing the provisions of the Indian Act ofIn our view, S. 76,(1) is both an enabling and a restrictive provision. It enables the companies to pay commission on shares and debentures, but restricts and regulates the quantum of the commission. The words "5 per cent of the price at which the shares are issued" and the words "2 1/2 per cent of the price at which the debentures are issued" which occur in(1) are indicative of the quantum of the commission to be paid. They are not indicative, in our view, of the source from which the payment of the commission may proceed. In our opinion, therefore, upon a natural construction of the language of(ii) of clause (b) of(I) of S. 76, it must be held that the payment of commission on shares and debentures might proceed from any source, capital monies or profit, but it is to be restricted up to a certain percentage, the percentage being different in the case of shares and debentures.There is another reason also why we feel we must reject Mr. Munshis contention that the restriction upon payment of a commission imposed by(1) of S. 76 extends only to the application of the capital of a company and not to the profit of the company. As I have said in the earlier part of this judgment, the restriction envisaged by(1) applies to the payment of a commission, not only on shares, but on the debentures as well. In other words,(1) places debentures on the same footing as. shares so far as the payment of a commission is concerned. This must serve, in our opinion, as a serious obstacle to the contention that(1) is only an enabling provision permitting the companies to pay commission out of capital. So far as the Companies Act is concerned, debentures are not a capital of a company. As Palmer has said in his Company Precedents, the word debenture is employed to describe an instrument under seal evidencing a debt. The essence of a debenture is originally an admission of indebtedness and that is its essential characteristic, the centralhave examined this contention carefully, but we regret we are unable to accept it. The agreements dated41 represented a contract between the parties. In pursuance of that contract, the Company agreed to pay a certain commission to the promoters; and the consideration for this was the agreement on the part of the promoters to subscribe for shares. That being so, we cannot accept the contention that the provisions of(1) of S. 76 would not be attracted in this case. Whatever commission the plaintiff is asking the Company to pay to him under these agreements, he is claiming by way of a consideration for the agreement between himself and the Company, the agreement being one of subscription for shares. The learned counsel for the first defendant company has contended before us, and rightly, that after the coming into force of the Act of 1956, no such payment by way of commission could be legally made under(1) of S. 76 as would contravene the provisions of sub clause(ii) of clause (b) of(1). The claim which the plaintiff has made is in contravention of sub clause (ii) of clause (b) and cannot be sustained. We are of the view that S. 76 applies to these agreements and accordingly the provisions of S. 9 would also be attracted. Section 9 lays down that, save as otherwise expressly provided in the Act, the provisions of the Act shall have effect, notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of thisas S. 9 says, the provisions of the Act (i.e. S. 76 in the context of this case) shall have effect, notwithstanding the fact that the agreements were executed before the coming into force of this Act. Therefore, in view of S. 9 read with S. 76 of the Act, we must accept the contention of the first defendant company that the plaintiff would not be entitled to receive any commission from the company in contravention of(ii) of clause (b) of(1) of S.is to be remembered, however, that the important words in S. 2 of the Capital Issues (Continuance of Control) Act are "in this Act."Therefore, the definitions of securities and of the expression issue of capital as contained in the Capital Issues (Continuance of Control) Act would not govern the meaning of the term debenture as it occurs in the Companies Act, 1956. So far as the Companies Act, 1956, is concerned, I have already stated, for the reasons given in the previous part of this judgment, that debenture is an instrument under seat evidencing a debt. It is not capital.
|
Pushkar Mehra Vs. Brij Mohan Kushwaha & Others | v. Madan Mohan [(2009) 13 SCC 422] , A. Manavalagan v. A. Krishnamurthy & Ors. [I (2005) ACC 304 ] and Keith Rowe v. Prashant Sagar and Ors. [2011 ACJ 1734 ]. The appellant also referred to the case of Burgess v. Florence Nightingale Hospital [1955(1) Q.B. 349] as cited in the Keith Rowe case (supra). 6. The learned counsel for respondent No. 3, the insurer contended that the amount of compensation to be determined in this case should be just and reasonable and not meager but at the same time it should not be a bonanza. It was further contended that the Tribunal rightly applied the provisions of the Minimum Wages Act for unskilled labour and took the multiplier of 11. It would be clear from the financial background of the claimants that they were not actually dependent on the deceased as the deceaseds wife was earning Rs.11,000/- per month and the son based in the U.S.A. was earning $1,20,000 per annum and the other son based in Mumbai was earning Rs.18,000/- per month besides other perks. All this reveals that the claimants were very well placed in life. It was further contended that the appellant has erroneously placed reliance on the judgments in the cases of Asha Gupta, A. Manavalagan and Keith Rowe referred to supra as the facts are altogether different as in those cases salary was proved by the documentary evidence. 7. We have carefully examined the correctness of the impugned judgment and award passed by the High Court in exercise of its appellate jurisdiction with a view to find out whether the High Court is justified in upholding the quantum of compensation awarded by the Tribunal as legal and valid and further, as to what amount the claimants are entitled to. The Tribunal has regarded the deceased as an unskilled worker and has taken his wages to be Rs.2895/- as per the Minimum Wages Act, 1948, citing absence of evidence as the ground for doing so. The High Court did not interfere with the findings of the Tribunal and dismissed the appeal filed by the appellant requesting enhancement of compensation awarded by the Tribunal. This Court holds that the concurrent finding of the High Court on the determination of quantum of annual income of the deceased by taking Rs.2895/- per month as wages for an unskilled worker is not only an erroneous approach of theirs but also total non-application of mind on their part as it is unlikely that a person who is self-employed in the business of trading in paints and hardware is an unskilled worker. The Tribunal and the High Court should have taken the wages of the deceased to be that of a skilled worker or clerical and non- technical supervisory staff as he was self-employed and running his own business. As per the Order of the Government of NCT of Delhi dated 09.03.2010, the rate applicable in respect of a clerical and non-technical supervisory staff is Rs.7020/- per month. We hold that it would be just and proper for this Court to take Rs.7020/- per month as the income of the deceased, in the absence of evidence to the contrary. The Tribunal has held that since the deceased was aged 54 years, there is no award with respect to future prospects. In this regard, we must refer to the recent case of this Court, of Rajesh & Ors. v. Rajbir Singh & Ors. [2013(6) SCALE 563], wherein a three judge Bench held that, "Having regard to the fact that in case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only by just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, fair and equitable. There shall normally be no addition thereafter." Thus, we have to add 15% to the monthly income of the deceased as future prospects. We deduct 1/3rd of this amount on account of personal expenses of the deceased which he would have spent had he remained alive. We will apply a multiplier of 11. Following the decision of Rajesh & Ors. v. Rajbir Singh & Ors. (supra), Rs.1,00,000/- must be added under the head of loss of consortium and Rs.25,000/- must be awarded for funeral expenses as this Court in the aforesaid case held that Tribunals have been frugal in the award of compensation under the head funeral expenses. As the Tribunal has awarded Rs.1,00,000/- for loss of love and affection, we will not interfere with the same. The other heads under which we have awarded and the calculation would be as per the table given below: chart 8. Hence, the amount of Rs.9,60,424/- as calculated above, taking into consideration the various heads of losses, should be awarded in favour of appellant. The duty of the Tribunal and the appellate court to determine just, fair and reasonable compensation as held by this Court in a catena of cases is the justification for this Court for awarding compensation in favour of the appellant, when an application for compensation is made under Section 166 of the M.V. Act. We determine just and reasonable compensation by awarding a total sum of Rs.9,60,424/- with interest @ 9% from the date of filing the petition till the date of realization of the amount. We also hold that the compensation amount would first be paid by the respondent No.3 - the Insurance Company who can thereafter recover it from the respondent No.2 - the owner of the offending vehicle on the ground that it has been proved on record that the license possessed by the respondent No.1 - the driver of the offending vehicle was not issued from the concerned RTO and so the insurer is entitled to recovery of the compensation awarded from the owner and thereby we grant right of recovery to the respondent No.3. | 1[ds]7. We have carefully examined the correctness of the impugned judgment and award passed by the High Court in exercise of its appellate jurisdiction with a view to find out whetherthe High Court is justified in upholding the quantum of compensation awarded by the Tribunal as legal and valid and further, as to what amount the claimants are entitled to.The Tribunal has regarded the deceased as an unskilled worker and has taken his wages to be Rs.2895/as per the Minimum Wages Act, 1948, citing absence of evidence as the ground for doing so. The High Court did not interfere with the findings of the Tribunal and dismissed the appeal filed by the appellant requesting enhancement of compensation awarded by the Tribunal. This Court holds that the concurrent finding of the High Court on the determination of quantum of annual income of the deceased by taking Rs.2895/per month as wages for an unskilled worker is not only an erroneous approach of theirs but also totalof mind on their part as it is unlikely that a person who isin the business of trading in paints and hardware is an unskilled worker. The Tribunal and the High Court should have taken the wages of the deceased to be that of a skilled worker or clerical and nontechnical supervisory staff as he wasand running his own business. As per the Order of the Government of NCT of Delhi dated 09.03.2010, the rate applicable in respect of a clerical andsupervisory staff is Rs.7020/per month. We hold that it would be just and proper for this Court to take Rs.7020/per month as the income of the deceased, in the absence of evidence to the contrary. The Tribunal has held that since the deceased was aged 54 years, there is no award with respect to future prospects. In this regard, we must refer to the recent case of this Court, of Rajesh & Ors. v. Rajbir Singh & Ors. [2013(6) SCALE 563], wherein a three judge Bench heldregard to the fact that in case of thoseor on fixed wages, where there is normally no age of superannuation, we are of the view that it will only by just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, fair and equitable. There shall normally be no additionwe have to add 15% to the monthly income of the deceased as future prospects. We deduct 1/3rd of this amount on account of personal expenses of the deceased which he would have spent had he remained alive. We will apply a multiplier of 11. Following the decision of Rajesh & Ors. v. Rajbir Singh & Ors. (supra), Rs.1,00,000/must be added under the head of loss of consortium and Rs.25,000/must be awarded for funeral expenses as this Court in the aforesaid case held that Tribunals have been frugal in the award of compensation under the head funeral expenses. As the Tribunal has awarded Rs.1,00,000/for loss of love and affection, we will not interfere with the same. The other heads under which we have awarded and the calculation would be as per the table given% ofd as future prospectsrd ofal expenses of theer of 11se ofal andss and8. Hence, the amount of Rs.9,60,424/as calculated above, taking into consideration the various heads of losses, should be awarded in favour of appellant. The duty of thehe appellate court to determine just, fair and reasonable compensation as held by this Court in a catena of cases is the justification for this Court for awarding compensation in favour of the appellant, when an application for compensation is made under Section 166 of the M.V. Act. We determine just and reasonable compensation by awarding a total sum of Rs.9,60,424/with interest @ 9% from the date of filing the petition till the date of realization of the amount. We also hold that the compensation amount would first be paid by the respondent No.3the Insurance Company who can thereafter recover it from the respondent No.2 the owner of theoffending vehicle on the ground that it has been proved on record that the license possessed by the respondent No.1the driver of the offending vehicle was not issued from the concerned RTO and so the insurer is entitled to recovery of the compensation awarded from the owner and thereby we grant right of recovery to the respondent No.3. | 1 | 2,546 | 796 | ### 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:
v. Madan Mohan [(2009) 13 SCC 422] , A. Manavalagan v. A. Krishnamurthy & Ors. [I (2005) ACC 304 ] and Keith Rowe v. Prashant Sagar and Ors. [2011 ACJ 1734 ]. The appellant also referred to the case of Burgess v. Florence Nightingale Hospital [1955(1) Q.B. 349] as cited in the Keith Rowe case (supra). 6. The learned counsel for respondent No. 3, the insurer contended that the amount of compensation to be determined in this case should be just and reasonable and not meager but at the same time it should not be a bonanza. It was further contended that the Tribunal rightly applied the provisions of the Minimum Wages Act for unskilled labour and took the multiplier of 11. It would be clear from the financial background of the claimants that they were not actually dependent on the deceased as the deceaseds wife was earning Rs.11,000/- per month and the son based in the U.S.A. was earning $1,20,000 per annum and the other son based in Mumbai was earning Rs.18,000/- per month besides other perks. All this reveals that the claimants were very well placed in life. It was further contended that the appellant has erroneously placed reliance on the judgments in the cases of Asha Gupta, A. Manavalagan and Keith Rowe referred to supra as the facts are altogether different as in those cases salary was proved by the documentary evidence. 7. We have carefully examined the correctness of the impugned judgment and award passed by the High Court in exercise of its appellate jurisdiction with a view to find out whether the High Court is justified in upholding the quantum of compensation awarded by the Tribunal as legal and valid and further, as to what amount the claimants are entitled to. The Tribunal has regarded the deceased as an unskilled worker and has taken his wages to be Rs.2895/- as per the Minimum Wages Act, 1948, citing absence of evidence as the ground for doing so. The High Court did not interfere with the findings of the Tribunal and dismissed the appeal filed by the appellant requesting enhancement of compensation awarded by the Tribunal. This Court holds that the concurrent finding of the High Court on the determination of quantum of annual income of the deceased by taking Rs.2895/- per month as wages for an unskilled worker is not only an erroneous approach of theirs but also total non-application of mind on their part as it is unlikely that a person who is self-employed in the business of trading in paints and hardware is an unskilled worker. The Tribunal and the High Court should have taken the wages of the deceased to be that of a skilled worker or clerical and non- technical supervisory staff as he was self-employed and running his own business. As per the Order of the Government of NCT of Delhi dated 09.03.2010, the rate applicable in respect of a clerical and non-technical supervisory staff is Rs.7020/- per month. We hold that it would be just and proper for this Court to take Rs.7020/- per month as the income of the deceased, in the absence of evidence to the contrary. The Tribunal has held that since the deceased was aged 54 years, there is no award with respect to future prospects. In this regard, we must refer to the recent case of this Court, of Rajesh & Ors. v. Rajbir Singh & Ors. [2013(6) SCALE 563], wherein a three judge Bench held that, "Having regard to the fact that in case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only by just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, fair and equitable. There shall normally be no addition thereafter." Thus, we have to add 15% to the monthly income of the deceased as future prospects. We deduct 1/3rd of this amount on account of personal expenses of the deceased which he would have spent had he remained alive. We will apply a multiplier of 11. Following the decision of Rajesh & Ors. v. Rajbir Singh & Ors. (supra), Rs.1,00,000/- must be added under the head of loss of consortium and Rs.25,000/- must be awarded for funeral expenses as this Court in the aforesaid case held that Tribunals have been frugal in the award of compensation under the head funeral expenses. As the Tribunal has awarded Rs.1,00,000/- for loss of love and affection, we will not interfere with the same. The other heads under which we have awarded and the calculation would be as per the table given below: chart 8. Hence, the amount of Rs.9,60,424/- as calculated above, taking into consideration the various heads of losses, should be awarded in favour of appellant. The duty of the Tribunal and the appellate court to determine just, fair and reasonable compensation as held by this Court in a catena of cases is the justification for this Court for awarding compensation in favour of the appellant, when an application for compensation is made under Section 166 of the M.V. Act. We determine just and reasonable compensation by awarding a total sum of Rs.9,60,424/- with interest @ 9% from the date of filing the petition till the date of realization of the amount. We also hold that the compensation amount would first be paid by the respondent No.3 - the Insurance Company who can thereafter recover it from the respondent No.2 - the owner of the offending vehicle on the ground that it has been proved on record that the license possessed by the respondent No.1 - the driver of the offending vehicle was not issued from the concerned RTO and so the insurer is entitled to recovery of the compensation awarded from the owner and thereby we grant right of recovery to the respondent No.3.
### Response:
1
### Explanation:
7. We have carefully examined the correctness of the impugned judgment and award passed by the High Court in exercise of its appellate jurisdiction with a view to find out whetherthe High Court is justified in upholding the quantum of compensation awarded by the Tribunal as legal and valid and further, as to what amount the claimants are entitled to.The Tribunal has regarded the deceased as an unskilled worker and has taken his wages to be Rs.2895/as per the Minimum Wages Act, 1948, citing absence of evidence as the ground for doing so. The High Court did not interfere with the findings of the Tribunal and dismissed the appeal filed by the appellant requesting enhancement of compensation awarded by the Tribunal. This Court holds that the concurrent finding of the High Court on the determination of quantum of annual income of the deceased by taking Rs.2895/per month as wages for an unskilled worker is not only an erroneous approach of theirs but also totalof mind on their part as it is unlikely that a person who isin the business of trading in paints and hardware is an unskilled worker. The Tribunal and the High Court should have taken the wages of the deceased to be that of a skilled worker or clerical and nontechnical supervisory staff as he wasand running his own business. As per the Order of the Government of NCT of Delhi dated 09.03.2010, the rate applicable in respect of a clerical andsupervisory staff is Rs.7020/per month. We hold that it would be just and proper for this Court to take Rs.7020/per month as the income of the deceased, in the absence of evidence to the contrary. The Tribunal has held that since the deceased was aged 54 years, there is no award with respect to future prospects. In this regard, we must refer to the recent case of this Court, of Rajesh & Ors. v. Rajbir Singh & Ors. [2013(6) SCALE 563], wherein a three judge Bench heldregard to the fact that in case of thoseor on fixed wages, where there is normally no age of superannuation, we are of the view that it will only by just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, fair and equitable. There shall normally be no additionwe have to add 15% to the monthly income of the deceased as future prospects. We deduct 1/3rd of this amount on account of personal expenses of the deceased which he would have spent had he remained alive. We will apply a multiplier of 11. Following the decision of Rajesh & Ors. v. Rajbir Singh & Ors. (supra), Rs.1,00,000/must be added under the head of loss of consortium and Rs.25,000/must be awarded for funeral expenses as this Court in the aforesaid case held that Tribunals have been frugal in the award of compensation under the head funeral expenses. As the Tribunal has awarded Rs.1,00,000/for loss of love and affection, we will not interfere with the same. The other heads under which we have awarded and the calculation would be as per the table given% ofd as future prospectsrd ofal expenses of theer of 11se ofal andss and8. Hence, the amount of Rs.9,60,424/as calculated above, taking into consideration the various heads of losses, should be awarded in favour of appellant. The duty of thehe appellate court to determine just, fair and reasonable compensation as held by this Court in a catena of cases is the justification for this Court for awarding compensation in favour of the appellant, when an application for compensation is made under Section 166 of the M.V. Act. We determine just and reasonable compensation by awarding a total sum of Rs.9,60,424/with interest @ 9% from the date of filing the petition till the date of realization of the amount. We also hold that the compensation amount would first be paid by the respondent No.3the Insurance Company who can thereafter recover it from the respondent No.2 the owner of theoffending vehicle on the ground that it has been proved on record that the license possessed by the respondent No.1the driver of the offending vehicle was not issued from the concerned RTO and so the insurer is entitled to recovery of the compensation awarded from the owner and thereby we grant right of recovery to the respondent No.3.
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Sudam Kisan Gavane (D) thr. L.Rs. and Ors Vs. Manik Ananta Shikketod (D) by L.Rs. and Ors | 1. Without expressing any opinion on the merits of the case, we feel this case should be remanded to the High Court.2. The second appeal Under Section 100 of the Code of Civil Procedure came up for admission before the High Court on 11.06.1990. The High Court admitted the appeal without framing any question of law and the order reads:Heard. Admit3. The appeal came up for hearing on 02.05.2009. Arguments were heard and judgment was reserved. The order dated 02.05.2009 also does not indicate that any question(s) of law was framed on that date. Thereafter, judgment was delivered on 10.06.2009. This judgment makes mention of certain substantial questions of law. It is obvious that these substantial questions of law were framed by the learned Judge at the time of dictation of the judgment. This procedure, in our opinion, is not fair to the parties. The parties must know what are the substantial questions of law which the Court is required to answer in a particular case. It is only then that the parties and their counsel can properly assist the Court.4. Section 100 of Code of Civil Procedure reads as under:100. Second appeal - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.(2) An appeal may lie under this Section from an appellate decree passed ex parte.(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.(5) The appeal shall be heard on the question so formulated and the Respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.5. A bare reading of Section 100 of Code of Civil Procedure makes it abundantly clear that an appeal can only lie if there is a substantial question of law involved in the appeal. Sub-section (3) makes it clear that the memorandum of appeal filed Under Section 100 of Code of Civil Procedure should precisely state the substantial question of law involved in the appeal. It is only if the High Court is satisfied that a substantial question of law is involved in the case that it shall formulate that question. A duty is cast upon the High Court to formulate the substantial questions of law in terms of Sub-section (4) of Section 100 of Code of Civil Procedure.6. Therefore, normally the order of admission of the appeal should clearly indicate on what substantial questions of law the appeal has been admitted. Even if the High Court is of the view that the substantial questions of law, as framed in the memorandum of appeal, are substantial questions of law, the order admitting the appeal should specifically state what are the questions of law on which the appeal is admitted. Obviously, if no substantial question(s) of law arises then the appeal has to be dismissed at the threshold.7. Sub-section (5) mandates that the appeal shall be heard on the questions so formulated. It is, thus, clear that the hearing of the appeal should revolve around the substantial questions of law and the Court at the final hearing cannot go beyond the substantial questions of law. We would, however, like to make it clear that if at the time of final hearing, the Court feels that there is some other substantial question(s) of law involved, it is not debarred from formulating that question even at that stage but hearing will have to be limited to substantial questions of law. Sub-section (5) also clearly lays down that the Respondent has a right to urge that the substantial question(s) of law, as formulated, do not actually arise for consideration or that they are not substantial questions of law.8. The proviso to Section 100 of Code of Civil Procedure makes it clear that the Court has the power to hear the appeal from any substantial questions of law not formulated by it if it is satisfied that the case involves such questions. However, it is important to note, that in such eventuality the Court has to record its reasons for formulating such questions of law. This obviously means that the Court will pass a reasoned order while formulating the substantial question(s) of law at this stage. The natural corollary is that the parties have to be heard after the framing of such substantial questions of law. The hearing cannot be prior to the substantial questions of law. We are clearly of the view that the High Court erred in hearing the appeal finally when questions of law have not been framed and formulated the questions of law only in the judgment. | 1[ds]1. Without expressing any opinion on the merits of the case, we feel this case should be remanded to the High CourtThe order dated 02.05.2009 also does not indicate that any question(s) of law was framed on that date. Thereafter, judgment was delivered on 10.06.2009. This judgment makes mention of certain substantial questions of law. It is obvious that these substantial questions of law were framed by the learned Judge at the time of dictation of the judgment. This procedure, in our opinion, is not fair to the parties. The parties must know what are the substantial questions of law which the Court is required to answer in a particular case. It is only then that the parties and their counsel can properly assist the Court5. A bare reading of Section 100 of Code of Civil Procedure makes it abundantly clear that an appeal can only lie if there is a substantial question of law involved in the appeal. Sub-section (3) makes it clear that the memorandum of appeal filed Under Section 100 of Code of Civil Procedure should precisely state the substantial question of law involved in the appeal. It is only if the High Court is satisfied that a substantial question of law is involved in the case that it shall formulate that question. A duty is cast upon the High Court to formulate the substantial questions of law in terms of Sub-section (4) of Section 100 of Code of Civil Procedure6. Therefore, normally the order of admission of the appeal should clearly indicate on what substantial questions of law the appeal has been admitted. Even if the High Court is of the view that the substantial questions of law, as framed in the memorandum of appeal, are substantial questions of law, the order admitting the appeal should specifically state what are the questions of law on which the appeal is admitted. Obviously, if no substantial question(s) of law arises then the appeal has to be dismissed at the threshold7. Sub-section (5) mandates that the appeal shall be heard on the questions so formulated. It is, thus, clear that the hearing of the appeal should revolve around the substantial questions of law and the Court at the final hearing cannot go beyond the substantial questions of law. We would, however, like to make it clear that if at the time of final hearing, the Court feels that there is some other substantial question(s) of law involved, it is not debarred from formulating that question even at that stage but hearing will have to be limited to substantial questions of law. Sub-section (5) also clearly lays down that the Respondent has a right to urge that the substantial question(s) of law, as formulated, do not actually arise for consideration or that they are not substantial questions of law8. The proviso to Section 100 of Code of Civil Procedure makes it clear that the Court has the power to hear the appeal from any substantial questions of law not formulated by it if it is satisfied that the case involves such questions. However, it is important to note, that in such eventuality the Court has to record its reasons for formulating such questions of law. This obviously means that the Court will pass a reasoned order while formulating the substantial question(s) of law at this stage. The natural corollary is that the parties have to be heard after the framing of such substantial questions of law. The hearing cannot be prior to the substantial questions of law. We are clearly of the view that the High Court erred in hearing the appeal finally when questions of law have not been framed and formulated the questions of law only in the judgment. | 1 | 996 | 694 | ### 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:
1. Without expressing any opinion on the merits of the case, we feel this case should be remanded to the High Court.2. The second appeal Under Section 100 of the Code of Civil Procedure came up for admission before the High Court on 11.06.1990. The High Court admitted the appeal without framing any question of law and the order reads:Heard. Admit3. The appeal came up for hearing on 02.05.2009. Arguments were heard and judgment was reserved. The order dated 02.05.2009 also does not indicate that any question(s) of law was framed on that date. Thereafter, judgment was delivered on 10.06.2009. This judgment makes mention of certain substantial questions of law. It is obvious that these substantial questions of law were framed by the learned Judge at the time of dictation of the judgment. This procedure, in our opinion, is not fair to the parties. The parties must know what are the substantial questions of law which the Court is required to answer in a particular case. It is only then that the parties and their counsel can properly assist the Court.4. Section 100 of Code of Civil Procedure reads as under:100. Second appeal - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.(2) An appeal may lie under this Section from an appellate decree passed ex parte.(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.(5) The appeal shall be heard on the question so formulated and the Respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.5. A bare reading of Section 100 of Code of Civil Procedure makes it abundantly clear that an appeal can only lie if there is a substantial question of law involved in the appeal. Sub-section (3) makes it clear that the memorandum of appeal filed Under Section 100 of Code of Civil Procedure should precisely state the substantial question of law involved in the appeal. It is only if the High Court is satisfied that a substantial question of law is involved in the case that it shall formulate that question. A duty is cast upon the High Court to formulate the substantial questions of law in terms of Sub-section (4) of Section 100 of Code of Civil Procedure.6. Therefore, normally the order of admission of the appeal should clearly indicate on what substantial questions of law the appeal has been admitted. Even if the High Court is of the view that the substantial questions of law, as framed in the memorandum of appeal, are substantial questions of law, the order admitting the appeal should specifically state what are the questions of law on which the appeal is admitted. Obviously, if no substantial question(s) of law arises then the appeal has to be dismissed at the threshold.7. Sub-section (5) mandates that the appeal shall be heard on the questions so formulated. It is, thus, clear that the hearing of the appeal should revolve around the substantial questions of law and the Court at the final hearing cannot go beyond the substantial questions of law. We would, however, like to make it clear that if at the time of final hearing, the Court feels that there is some other substantial question(s) of law involved, it is not debarred from formulating that question even at that stage but hearing will have to be limited to substantial questions of law. Sub-section (5) also clearly lays down that the Respondent has a right to urge that the substantial question(s) of law, as formulated, do not actually arise for consideration or that they are not substantial questions of law.8. The proviso to Section 100 of Code of Civil Procedure makes it clear that the Court has the power to hear the appeal from any substantial questions of law not formulated by it if it is satisfied that the case involves such questions. However, it is important to note, that in such eventuality the Court has to record its reasons for formulating such questions of law. This obviously means that the Court will pass a reasoned order while formulating the substantial question(s) of law at this stage. The natural corollary is that the parties have to be heard after the framing of such substantial questions of law. The hearing cannot be prior to the substantial questions of law. We are clearly of the view that the High Court erred in hearing the appeal finally when questions of law have not been framed and formulated the questions of law only in the judgment.
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### Explanation:
1. Without expressing any opinion on the merits of the case, we feel this case should be remanded to the High CourtThe order dated 02.05.2009 also does not indicate that any question(s) of law was framed on that date. Thereafter, judgment was delivered on 10.06.2009. This judgment makes mention of certain substantial questions of law. It is obvious that these substantial questions of law were framed by the learned Judge at the time of dictation of the judgment. This procedure, in our opinion, is not fair to the parties. The parties must know what are the substantial questions of law which the Court is required to answer in a particular case. It is only then that the parties and their counsel can properly assist the Court5. A bare reading of Section 100 of Code of Civil Procedure makes it abundantly clear that an appeal can only lie if there is a substantial question of law involved in the appeal. Sub-section (3) makes it clear that the memorandum of appeal filed Under Section 100 of Code of Civil Procedure should precisely state the substantial question of law involved in the appeal. It is only if the High Court is satisfied that a substantial question of law is involved in the case that it shall formulate that question. A duty is cast upon the High Court to formulate the substantial questions of law in terms of Sub-section (4) of Section 100 of Code of Civil Procedure6. Therefore, normally the order of admission of the appeal should clearly indicate on what substantial questions of law the appeal has been admitted. Even if the High Court is of the view that the substantial questions of law, as framed in the memorandum of appeal, are substantial questions of law, the order admitting the appeal should specifically state what are the questions of law on which the appeal is admitted. Obviously, if no substantial question(s) of law arises then the appeal has to be dismissed at the threshold7. Sub-section (5) mandates that the appeal shall be heard on the questions so formulated. It is, thus, clear that the hearing of the appeal should revolve around the substantial questions of law and the Court at the final hearing cannot go beyond the substantial questions of law. We would, however, like to make it clear that if at the time of final hearing, the Court feels that there is some other substantial question(s) of law involved, it is not debarred from formulating that question even at that stage but hearing will have to be limited to substantial questions of law. Sub-section (5) also clearly lays down that the Respondent has a right to urge that the substantial question(s) of law, as formulated, do not actually arise for consideration or that they are not substantial questions of law8. The proviso to Section 100 of Code of Civil Procedure makes it clear that the Court has the power to hear the appeal from any substantial questions of law not formulated by it if it is satisfied that the case involves such questions. However, it is important to note, that in such eventuality the Court has to record its reasons for formulating such questions of law. This obviously means that the Court will pass a reasoned order while formulating the substantial question(s) of law at this stage. The natural corollary is that the parties have to be heard after the framing of such substantial questions of law. The hearing cannot be prior to the substantial questions of law. We are clearly of the view that the High Court erred in hearing the appeal finally when questions of law have not been framed and formulated the questions of law only in the judgment.
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State Of Bihar Vs. Lt. Col. K. S. R. Swami | or other forest produce of the said forest...... except as provided in Rr. I, II and III. Rule 8 under which the Collector gave permission runs thus:"No land in the said forest shall be cleared or broken for cultivation or any other purpose without the written permission of the Collector". There is an apparent conflict here between the provisions of Rule 4 and Rule 8; for, while under Rule 4 no cutting, conversion or removal of trees can be made except under license issued under Rule 3 or permission granted by the Forest Officer under Rule 2 or under the provisions of Rule 1, all this can be set at naught if a written permission is granted by the Collector for clearing or breaking up the land for cultivation or any other purpose necessarily involving the cutting and removal of trees.14. On behalf of the appellant-State Mr. Jha argued that Rule 8 has no operation so long as trees are standing and it is only if trees have been cut or removed under the provisions of Rules 1, 2 and 3 and only stumps of those trees are standing that the Collector can give permission for clearing the forest land or breaking it up for cultivation. We are unable to persuade ourselves that in making these rules the Government intended to give such limited authority only to the Collector.15. It is obvious that while Rules 1, 2, 3 and 4 were made under Clauses a, b, c and d of S. 32, Rule 8 has been made under Cl. g of S. 32 which is for the definite matter of "clearing and breaking up of land for cultivation or any other purpose" in a protected forest. The reasonable way of reading Rules 1 to 4 and Rule 8 appears to us to be that Rr. 1 to 4 apply to the cutting or removal of trees where in spite of such cutting the forest would continue to be a forest; but cutting of trees which is necessary for clearing the land for cultivation or any other purpose is not controlled by Rr. 1, 2, 3 or 4 but only by R. 8.That seems to us to be the only way of harmonious construction of Rr. 4 and 8 and that must, in our opinion, have been intended by the rule-making authority.16. In the present case therefore when the tenant on the land asked for permission to clear the land for cultivation and it was this clearing which involved the cutting and removal of trees Rr 1 to 4 had no application and R. 8 under which the Collector acted applied. It may be mentioned here that though R. 8 is in the negative form, it is what has been called a pregnant negative, saying on the one hand that land in the forest may be cleared or broken for cultivation or any other purpose with the written permission of the Collector and on the other hand that without such permission no such clearing or breaking up for cultivation or any other purpose shall take place.The permission given in the present case by the Collector was therefore in accordance with law and neither the Forest Officer nor the Government had any authority in law to interfere with that permission.17. The last argument advanced by Mr. Jha is that the prohibition by the State Government of clearing or breaking up for cultivation or for any other purpose of any land in a protected forest by the notification dated May 29, 1953, under S. 30 of the Indian Forest Act, 1927, must prevail over the permission given by the Collector. It is to be noticed that whereas S. 30 empowers the State Government inter alia to prohibit such breaking up or clearing for cultivation of any land in a protected forest, S. 32 empowers the State Government to make rules to regulate inter alia "the clearing and breaking of land for cultivation or any other purpose" in a protected forest. Even if the legislature had said nothing else in this matter, it would have been plausible to argue that the prohibition under the notification would yield before any permission given under the Rules under S. 32. All doubts are however set at rest by S. 34 of the Act which runs thus:"Nothing in this Chapter shall be deemed to prohibit any act done with the permission in writing of the Forest Officer, or in accordance with rules made under S. 32, or except as regards any portion of a forest closed under S. 30, or as regards any rights the exercise of which has been suspended under S. 33, in the exercise of any right recorded under S. 29."18. It follows clearly and necessarily from S. 34 that the prohibition by notification of the clearing of land would be ineffective where such clearing is being made in accordance with R. 8 of the Rules made under S. 32.19. All the contentions raised in the appeal therefore fail. We are of opinion that there is no legal authority for the State Government to interfere with the clearing or cultivation of land by the respondent which is proposed to be done in accordance with the written permission granted by the Collector under R. 8 of the Protected Forest Rules, 1953.20. It appears that through some oversight the High Court ordered the issue of a writ of certiorari, though a writ in the nature of mandamus was prayed for. It is clear that the appropriate writ in the circumstances of the present case is a writ in the nature of mandamus and we modify the order made by the High Court to this extent that a writ in the nature of mandamus be issued directing the appellant-Government to cancel its order on the Collector made on June 10, 1954 and restraining the Government and the Forest Officer from interfering with the petitioners possession over 245.69 acres of land in village Singpur which he possesses as tenant. | 0[ds]In our opinion, there is no force in this contention.It is abundantly clear that the notification under the proviso is not intended to amount to a final constitution of the private forest as a private protected forest. The notification under the proviso is to be made only "pending the completion of the said enquiries, procedure and appeals". Quite clearly, these enquiries, procedure and appeals are not stopped by the declaration under the proviso. They have to be completed and it is only after their completion that a notification can be made by the Government under the main part of the section. On a reasonable reading of the section it is therefore abundantly clear that even where the Government thinks fit to make a declaration under the proviso, this will have effect only so long as the period fixed under S. 16 for preferring claims (i) has not expired; (ii) claims under Ss. 16 and 22 have not been disposed of; (iii) the periods limited by S. 27 for appealing from the orders passed in respect of those claims have not elapsed and (iv) all appeals preferred against such orders have not been disposed of.10. Turning now to S. 19 of this Chapter we find it laying down that "rights (other than landlords rights) in respect of which no claim has been preferred under S. 16 and of the existence of which no knowledge has been acquired by enquiry under S. 17, shall be extinguished, unless, before the notification under S. 30 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under S. 16.This argument is in our opinion wholly unacceptable. Considered in the background of the provisions in the Act for claims to be made under S. 16, for enquiry into these by the Forest Officer and thereafter for appeals from the decision of the Forest Officer, after the completion of all of which only the final notification constituting the private forest a private protected forest can be made, it is clear that rights "other than landlords rights" in respect of which no claim has been preferred under S. 16 or which have not been disclosed by enquiry under S. 17 were intended by the legislature to be extinguished only after the final notification is made. It is to be noticed that three months time from the date of the proclamation under S. 16 is to be allowed for making claims. The enquiry under S. 17 can start only after these claims have been made and some more time must elapse before an enquiry can be completed into the existence of rights which have not been claimed under S. 16. A notification under the proviso of S. 30 can however be made at any time after the notification under S. 14 has issued. It is meaningless to speak of rights in respect of which no claim has been preferred under S. 16 and of the existence of which no knowledge has been acquired by an enquiry under S. 17, before the period for the enquiry under S. 17 has expired. Again, there will be no extinction of rights, under S. 19, if the person claiming the rights satisfies the Forest Settlement Officer that he had sufficient cause for not preferring the claim within the period fixed under S. 16.The question of thus satisfying the Forest Settlement Officer can clearly not arise before the period fixed under S. 16 has expired. All this clearly shows that the extinction of rights under S. 19 can take place only after the final notification under S. 30 has beenare unable to persuade ourselves that in making these rules the Government intended to give such limited authority only to theseems to us to be the only way of harmonious construction of Rr. 4 and 8 and that must, in our opinion, have been intended by the rule-making authority.16. In the present case therefore when the tenant on the land asked for permission to clear the land for cultivation and it was this clearing which involved the cutting and removal of trees Rr 1 to 4 had no application and R. 8 under which the Collector acted applied. It may be mentioned here that though R. 8 is in the negative form, it is what has been called a pregnant negative, saying on the one hand that land in the forest may be cleared or broken for cultivation or any other purpose with the written permission of the Collector and on the other hand that without such permission no such clearing or breaking up for cultivation or any other purpose shall take place.The permission given in the present case by the Collector was therefore in accordance with law and neither the Forest Officer nor the Government had any authority in law to interfere with that permission.It follows clearly and necessarily from S. 34 that the prohibition by notification of the clearing of land would be ineffective where such clearing is being made in accordance with R. 8 of the Rules made under S. 32.19. All the contentions raised in the appeal therefore fail. We are of opinion that there is no legal authority for the State Government to interfere with the clearing or cultivation of land by the respondent which is proposed to be done in accordance with the written permission granted by the Collector under R. 8 of the Protected Forest Rules, 1953.20. It appears that through some oversight the High Court ordered the issue of a writ of certiorari, though a writ in the nature of mandamus was prayed for. It is clear that the appropriate writ in the circumstances of the present case is a writ in the nature of mandamus and we modify the order made by the High Court to this extent that a writ in the nature of mandamus be issued directing the appellant-Government to cancel its order on the Collector made on June 10, 1954 and restraining the Government and the Forest Officer from interfering with the petitioners possession over 245.69 acres of land in village Singpur which he possesses as tenant. | 0 | 3,994 | 1,094 | ### Instruction:
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### Input:
or other forest produce of the said forest...... except as provided in Rr. I, II and III. Rule 8 under which the Collector gave permission runs thus:"No land in the said forest shall be cleared or broken for cultivation or any other purpose without the written permission of the Collector". There is an apparent conflict here between the provisions of Rule 4 and Rule 8; for, while under Rule 4 no cutting, conversion or removal of trees can be made except under license issued under Rule 3 or permission granted by the Forest Officer under Rule 2 or under the provisions of Rule 1, all this can be set at naught if a written permission is granted by the Collector for clearing or breaking up the land for cultivation or any other purpose necessarily involving the cutting and removal of trees.14. On behalf of the appellant-State Mr. Jha argued that Rule 8 has no operation so long as trees are standing and it is only if trees have been cut or removed under the provisions of Rules 1, 2 and 3 and only stumps of those trees are standing that the Collector can give permission for clearing the forest land or breaking it up for cultivation. We are unable to persuade ourselves that in making these rules the Government intended to give such limited authority only to the Collector.15. It is obvious that while Rules 1, 2, 3 and 4 were made under Clauses a, b, c and d of S. 32, Rule 8 has been made under Cl. g of S. 32 which is for the definite matter of "clearing and breaking up of land for cultivation or any other purpose" in a protected forest. The reasonable way of reading Rules 1 to 4 and Rule 8 appears to us to be that Rr. 1 to 4 apply to the cutting or removal of trees where in spite of such cutting the forest would continue to be a forest; but cutting of trees which is necessary for clearing the land for cultivation or any other purpose is not controlled by Rr. 1, 2, 3 or 4 but only by R. 8.That seems to us to be the only way of harmonious construction of Rr. 4 and 8 and that must, in our opinion, have been intended by the rule-making authority.16. In the present case therefore when the tenant on the land asked for permission to clear the land for cultivation and it was this clearing which involved the cutting and removal of trees Rr 1 to 4 had no application and R. 8 under which the Collector acted applied. It may be mentioned here that though R. 8 is in the negative form, it is what has been called a pregnant negative, saying on the one hand that land in the forest may be cleared or broken for cultivation or any other purpose with the written permission of the Collector and on the other hand that without such permission no such clearing or breaking up for cultivation or any other purpose shall take place.The permission given in the present case by the Collector was therefore in accordance with law and neither the Forest Officer nor the Government had any authority in law to interfere with that permission.17. The last argument advanced by Mr. Jha is that the prohibition by the State Government of clearing or breaking up for cultivation or for any other purpose of any land in a protected forest by the notification dated May 29, 1953, under S. 30 of the Indian Forest Act, 1927, must prevail over the permission given by the Collector. It is to be noticed that whereas S. 30 empowers the State Government inter alia to prohibit such breaking up or clearing for cultivation of any land in a protected forest, S. 32 empowers the State Government to make rules to regulate inter alia "the clearing and breaking of land for cultivation or any other purpose" in a protected forest. Even if the legislature had said nothing else in this matter, it would have been plausible to argue that the prohibition under the notification would yield before any permission given under the Rules under S. 32. All doubts are however set at rest by S. 34 of the Act which runs thus:"Nothing in this Chapter shall be deemed to prohibit any act done with the permission in writing of the Forest Officer, or in accordance with rules made under S. 32, or except as regards any portion of a forest closed under S. 30, or as regards any rights the exercise of which has been suspended under S. 33, in the exercise of any right recorded under S. 29."18. It follows clearly and necessarily from S. 34 that the prohibition by notification of the clearing of land would be ineffective where such clearing is being made in accordance with R. 8 of the Rules made under S. 32.19. All the contentions raised in the appeal therefore fail. We are of opinion that there is no legal authority for the State Government to interfere with the clearing or cultivation of land by the respondent which is proposed to be done in accordance with the written permission granted by the Collector under R. 8 of the Protected Forest Rules, 1953.20. It appears that through some oversight the High Court ordered the issue of a writ of certiorari, though a writ in the nature of mandamus was prayed for. It is clear that the appropriate writ in the circumstances of the present case is a writ in the nature of mandamus and we modify the order made by the High Court to this extent that a writ in the nature of mandamus be issued directing the appellant-Government to cancel its order on the Collector made on June 10, 1954 and restraining the Government and the Forest Officer from interfering with the petitioners possession over 245.69 acres of land in village Singpur which he possesses as tenant.
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0
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the private forest as a private protected forest. The notification under the proviso is to be made only "pending the completion of the said enquiries, procedure and appeals". Quite clearly, these enquiries, procedure and appeals are not stopped by the declaration under the proviso. They have to be completed and it is only after their completion that a notification can be made by the Government under the main part of the section. On a reasonable reading of the section it is therefore abundantly clear that even where the Government thinks fit to make a declaration under the proviso, this will have effect only so long as the period fixed under S. 16 for preferring claims (i) has not expired; (ii) claims under Ss. 16 and 22 have not been disposed of; (iii) the periods limited by S. 27 for appealing from the orders passed in respect of those claims have not elapsed and (iv) all appeals preferred against such orders have not been disposed of.10. Turning now to S. 19 of this Chapter we find it laying down that "rights (other than landlords rights) in respect of which no claim has been preferred under S. 16 and of the existence of which no knowledge has been acquired by enquiry under S. 17, shall be extinguished, unless, before the notification under S. 30 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under S. 16.This argument is in our opinion wholly unacceptable. Considered in the background of the provisions in the Act for claims to be made under S. 16, for enquiry into these by the Forest Officer and thereafter for appeals from the decision of the Forest Officer, after the completion of all of which only the final notification constituting the private forest a private protected forest can be made, it is clear that rights "other than landlords rights" in respect of which no claim has been preferred under S. 16 or which have not been disclosed by enquiry under S. 17 were intended by the legislature to be extinguished only after the final notification is made. It is to be noticed that three months time from the date of the proclamation under S. 16 is to be allowed for making claims. The enquiry under S. 17 can start only after these claims have been made and some more time must elapse before an enquiry can be completed into the existence of rights which have not been claimed under S. 16. A notification under the proviso of S. 30 can however be made at any time after the notification under S. 14 has issued. It is meaningless to speak of rights in respect of which no claim has been preferred under S. 16 and of the existence of which no knowledge has been acquired by an enquiry under S. 17, before the period for the enquiry under S. 17 has expired. Again, there will be no extinction of rights, under S. 19, if the person claiming the rights satisfies the Forest Settlement Officer that he had sufficient cause for not preferring the claim within the period fixed under S. 16.The question of thus satisfying the Forest Settlement Officer can clearly not arise before the period fixed under S. 16 has expired. All this clearly shows that the extinction of rights under S. 19 can take place only after the final notification under S. 30 has beenare unable to persuade ourselves that in making these rules the Government intended to give such limited authority only to theseems to us to be the only way of harmonious construction of Rr. 4 and 8 and that must, in our opinion, have been intended by the rule-making authority.16. In the present case therefore when the tenant on the land asked for permission to clear the land for cultivation and it was this clearing which involved the cutting and removal of trees Rr 1 to 4 had no application and R. 8 under which the Collector acted applied. It may be mentioned here that though R. 8 is in the negative form, it is what has been called a pregnant negative, saying on the one hand that land in the forest may be cleared or broken for cultivation or any other purpose with the written permission of the Collector and on the other hand that without such permission no such clearing or breaking up for cultivation or any other purpose shall take place.The permission given in the present case by the Collector was therefore in accordance with law and neither the Forest Officer nor the Government had any authority in law to interfere with that permission.It follows clearly and necessarily from S. 34 that the prohibition by notification of the clearing of land would be ineffective where such clearing is being made in accordance with R. 8 of the Rules made under S. 32.19. All the contentions raised in the appeal therefore fail. We are of opinion that there is no legal authority for the State Government to interfere with the clearing or cultivation of land by the respondent which is proposed to be done in accordance with the written permission granted by the Collector under R. 8 of the Protected Forest Rules, 1953.20. It appears that through some oversight the High Court ordered the issue of a writ of certiorari, though a writ in the nature of mandamus was prayed for. It is clear that the appropriate writ in the circumstances of the present case is a writ in the nature of mandamus and we modify the order made by the High Court to this extent that a writ in the nature of mandamus be issued directing the appellant-Government to cancel its order on the Collector made on June 10, 1954 and restraining the Government and the Forest Officer from interfering with the petitioners possession over 245.69 acres of land in village Singpur which he possesses as tenant.
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Allahabad Bank Vs. Arc Holding Ltd. & Ors | as a going concern with a rider to absorb all the employees would not only bring low sale price but would negate the execution of the decree. 9. On the other hand the submission on behalf the judgment-debtor and on behalf of the workmen is such an order is just and proper as it brings back workers to earn their livelihood and simultaneously it would satisfy the decree. 10. It is not in dispute that the appellant- bank is the only secured creditor as against the said judgment-debtor company in liquidation. The total decree along with interest till 31st August, 1999 recorded is Rs. 8,29,48,725.72p. It is true, the court must find that method of sale of the assets or of the company, which brings maximum price to satisfy its creditors. This may, in a given case, include recovery through installments out of the production of the company. This would depend on the potentiality, viability and health of a company. Sometimes when company is taken over under Section 29 of the Financial Corporation Act, corporation may run or get the factory run to recover the loan. In another set of cases, where company has become nonfunctional, sick, due to its heavy debt, lack of production, mismanagement etc. then possibility of its revival is examined through expert statutory body the BIFR, It is only after scrutiny a decision is made to help in revival. It may order if no revival is possible. If company agrees with conditions imposed under any scheme framed by BIFR, if revival is possible such company may be brought back as running concern, with hope of its revival. But, if a company has reached a skeleton stage, where its revival is not possible, its assets are sold, to pay back the creditors. In the present case, undisputedly an order of winding up was passed as far back as on 4th June, 1990. There is nothing on the record to show even any attempt was made by the judgment-debtor respondent-company for its revival nor there is any thing on the record, to show that there exist possibility of its revival. Submission for the appellant-bank in support of sale being as going concern is made under the garb and in the name if workers to resist the present execution. 11. Learned Counsel for the appellant-bank strongly relies on Union Bank of India v. Official Liquidator H.C. of Calcutta and Ors. 2000 (5) SCC 274 . This was a case where a company was closed for about 17 years. The relevant portion is quoted hereunder: "It also appears that the Division Bench was persuaded by the so-called sympathy for the workers, without verification of the fact that the Company was closed before 17 years of sale. The Court has noted in the beginning while narrating the submission of the learned Counsel who appeared for the benefit of the employees that more than 100 employees were starving to death and in the later para stated that the Court was informed by the learned advocate appearing for the employees union that more than 100 employees have already died. Without there being any application on record and without there being proper verification of the facts from the parties concerned, it is not just and proper to make such observations. It is not impossible that because of the lapse of 17 years, out of 1200 workers who might have worked in the said factory 100 employees might have died a natural death. But in any circumstances it was unjustified to make a case over it and to accept oral submissions and to dispose of the valuable properties of a Company by stating that the sale of the Company as a going concern was for the benefit of the so-called employees who were not in employment." 12. Submission is, applying this decision and in the absence of any credible material the direction to sale the company as a going concern is not sustainable. 13. Learned Counsel for the company in liquidation and for the employees union, representing workers submits, for a compassionate consideration, in the interest of workers; as a last resort, attempt be made, if possible, to get a buyer who many take over the company as a going concern and be ready to pay the price to satisfy the decree and pay the rest of the liability in a phased manner after the production starts. 14. When indisputably the order of winding up made on 4-6-1990 had become final and company has become non functional for long, even BIFR could not come to its rescue and the attempt of the workers union of resuscitate the company by getting a committee constituted for management was repelled by a Division Bench of the High Court and this Court when the SLP filed by the workers Union came to be dismissed on 5-12-1997, it would no doubt be ironical and unjust to get order for the sale of the assets of the company as a going concern. But, at the same time to give a last try to the fond hopes expressed on behalf of the erstwhile workers, we consider giving one more chance to have it so done within a strict frame of time limit. 15. After considering submission of the learned Counsel for the parties, we are granting this indulgence, by permitting the sale of the company as a going concern with certain conditions only. 16. The Official Liquidator for this purpose shall advertise the sale of the company in liquidation-judgment debtor as a going concern as ordered by the High Court. Such publication shall indicate that the reserve price, shall be the amount equal to the total decree including interest which has accrued upto 31th December, 1999 in favour of the appellant-bank, and shall also has to pay the balance interest which accrues, till full payment is made. The publication shall also indicate that purchaser has also to pay the liabilities of other claimants in the proceeding for the liquidation of the company. | 1[ds]14. When indisputably the order of winding up made onhad become final and company has becomefor long, even BIFR could not come to its rescue and the attempt of the workers unionresuscitate the company by getting a committee constituted for management was repelled by a Division Bench of the High Court and this Court when the SLP filed by the workers Union came to be dismissed onit would no doubt be ironical and unjust to get order for the sale of the assets of the company as a going concern. But, at the same time to give a last try to the fond hopes expressed on behalf of the erstwhile workers, we consider giving one more chance to have it so done within a strict frame of timel indicate that the reserve price, shall be the amount equal to the total decree including interest which has accrued uptoDecember, 1999 in favour of theand shall also has to pay the balance interest which accrues, till full payment is made. The publication shall also indicate that purchaser has also to pay the liabilities of other claimants in the proceeding for the liquidation of the company. | 1 | 2,118 | 207 | ### 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:
as a going concern with a rider to absorb all the employees would not only bring low sale price but would negate the execution of the decree. 9. On the other hand the submission on behalf the judgment-debtor and on behalf of the workmen is such an order is just and proper as it brings back workers to earn their livelihood and simultaneously it would satisfy the decree. 10. It is not in dispute that the appellant- bank is the only secured creditor as against the said judgment-debtor company in liquidation. The total decree along with interest till 31st August, 1999 recorded is Rs. 8,29,48,725.72p. It is true, the court must find that method of sale of the assets or of the company, which brings maximum price to satisfy its creditors. This may, in a given case, include recovery through installments out of the production of the company. This would depend on the potentiality, viability and health of a company. Sometimes when company is taken over under Section 29 of the Financial Corporation Act, corporation may run or get the factory run to recover the loan. In another set of cases, where company has become nonfunctional, sick, due to its heavy debt, lack of production, mismanagement etc. then possibility of its revival is examined through expert statutory body the BIFR, It is only after scrutiny a decision is made to help in revival. It may order if no revival is possible. If company agrees with conditions imposed under any scheme framed by BIFR, if revival is possible such company may be brought back as running concern, with hope of its revival. But, if a company has reached a skeleton stage, where its revival is not possible, its assets are sold, to pay back the creditors. In the present case, undisputedly an order of winding up was passed as far back as on 4th June, 1990. There is nothing on the record to show even any attempt was made by the judgment-debtor respondent-company for its revival nor there is any thing on the record, to show that there exist possibility of its revival. Submission for the appellant-bank in support of sale being as going concern is made under the garb and in the name if workers to resist the present execution. 11. Learned Counsel for the appellant-bank strongly relies on Union Bank of India v. Official Liquidator H.C. of Calcutta and Ors. 2000 (5) SCC 274 . This was a case where a company was closed for about 17 years. The relevant portion is quoted hereunder: "It also appears that the Division Bench was persuaded by the so-called sympathy for the workers, without verification of the fact that the Company was closed before 17 years of sale. The Court has noted in the beginning while narrating the submission of the learned Counsel who appeared for the benefit of the employees that more than 100 employees were starving to death and in the later para stated that the Court was informed by the learned advocate appearing for the employees union that more than 100 employees have already died. Without there being any application on record and without there being proper verification of the facts from the parties concerned, it is not just and proper to make such observations. It is not impossible that because of the lapse of 17 years, out of 1200 workers who might have worked in the said factory 100 employees might have died a natural death. But in any circumstances it was unjustified to make a case over it and to accept oral submissions and to dispose of the valuable properties of a Company by stating that the sale of the Company as a going concern was for the benefit of the so-called employees who were not in employment." 12. Submission is, applying this decision and in the absence of any credible material the direction to sale the company as a going concern is not sustainable. 13. Learned Counsel for the company in liquidation and for the employees union, representing workers submits, for a compassionate consideration, in the interest of workers; as a last resort, attempt be made, if possible, to get a buyer who many take over the company as a going concern and be ready to pay the price to satisfy the decree and pay the rest of the liability in a phased manner after the production starts. 14. When indisputably the order of winding up made on 4-6-1990 had become final and company has become non functional for long, even BIFR could not come to its rescue and the attempt of the workers union of resuscitate the company by getting a committee constituted for management was repelled by a Division Bench of the High Court and this Court when the SLP filed by the workers Union came to be dismissed on 5-12-1997, it would no doubt be ironical and unjust to get order for the sale of the assets of the company as a going concern. But, at the same time to give a last try to the fond hopes expressed on behalf of the erstwhile workers, we consider giving one more chance to have it so done within a strict frame of time limit. 15. After considering submission of the learned Counsel for the parties, we are granting this indulgence, by permitting the sale of the company as a going concern with certain conditions only. 16. The Official Liquidator for this purpose shall advertise the sale of the company in liquidation-judgment debtor as a going concern as ordered by the High Court. Such publication shall indicate that the reserve price, shall be the amount equal to the total decree including interest which has accrued upto 31th December, 1999 in favour of the appellant-bank, and shall also has to pay the balance interest which accrues, till full payment is made. The publication shall also indicate that purchaser has also to pay the liabilities of other claimants in the proceeding for the liquidation of the company.
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1
### Explanation:
14. When indisputably the order of winding up made onhad become final and company has becomefor long, even BIFR could not come to its rescue and the attempt of the workers unionresuscitate the company by getting a committee constituted for management was repelled by a Division Bench of the High Court and this Court when the SLP filed by the workers Union came to be dismissed onit would no doubt be ironical and unjust to get order for the sale of the assets of the company as a going concern. But, at the same time to give a last try to the fond hopes expressed on behalf of the erstwhile workers, we consider giving one more chance to have it so done within a strict frame of timel indicate that the reserve price, shall be the amount equal to the total decree including interest which has accrued uptoDecember, 1999 in favour of theand shall also has to pay the balance interest which accrues, till full payment is made. The publication shall also indicate that purchaser has also to pay the liabilities of other claimants in the proceeding for the liquidation of the company.
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Motor General Finance Ltd Vs. CIT, Delhi | 1. Heard learned counsel for the parties. 2. Delay condoned. 3. Leave granted. 4. The only question which arises for our consideration in this case is whether the amount advanced by the appellant to its subsidiary in the relevant year was out of the profit earned by the Company for the said year or it was from the funds borrowed by the appellant. In para 6 of the impugned judgment, the High Court has observed: "Pursuant to and in furtherance of the aforesaid direction, an opportunity was given to the assessee to place additional material. The assessee merely furnished the statement of the deposits made in the bank account on those dates, on which the advance amounting to Rs 50 lakhs was made to the sister concern. It, however, despite the direction did not furnish the copy of the bank statement to show as to whether there had been a credit balance or debit balance in the bank accounts on those dates. In this situation, it was observed: "If there was a debit balance, then it could safely be inferred that interest bearing overdraft facility of the bank was utilised to make those advances. But the assessee till date has not furnished any such statement. In view of this fact, the disallowance of Rs 10 lakhs is to be sustained." 5. The High Court in the impugned judgment has observed that in spite of giving opportunity to the appellant, it has not filed the necessary statement before the Commissioner of Income Tax. It is primarily based on this finding of fact that the High Court dismissed the statutory appeal filed by the appellant. 6. The learned counsel appearing for the appellant points out from the record that the observations made by the High Court are factually incorrect and, as a matter of fact, the statement of relevant account was produced before the Commissioner of Income Tax, copies of which are in these appeal papers at pp. 70-74, notice of which has not been taken by the High Court. The learned counsel stated that it is in view of this factual error that the High Court has, by the impugned order, allowed the appeal of the respondent. 7. We have seen from the file that, as contended by the learned counsel, certain statements were produced before the authorities, notice of which has not been taken by the High Court. The contents of these statements would have vital importance on the ultimate decision that the High Court may have to take. Therefore, we think it appropriate that since the High Court has proceeded on an erroneous factual basis, this matter should be remanded back to the High Court to consider the material produced by the appellant which is found at pp. 70-74 of the appeal papers and decide the case on that basis. | 1[ds]7. We have seen from the file that, as contended by the learned counsel, certain statements were produced before the authorities, notice of which has not been taken by the High Court. The contents of these statements would have vital importance on the ultimate decision that the High Court may have to take. Therefore, we think it appropriate that since the High Court has proceeded on an erroneous factual basis, this matter should be remanded back to the High Court to consider the material produced by the appellant which is found at pp.4 of the appeal papers and decide the case on that basis. | 1 | 522 | 117 | ### 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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1. Heard learned counsel for the parties. 2. Delay condoned. 3. Leave granted. 4. The only question which arises for our consideration in this case is whether the amount advanced by the appellant to its subsidiary in the relevant year was out of the profit earned by the Company for the said year or it was from the funds borrowed by the appellant. In para 6 of the impugned judgment, the High Court has observed: "Pursuant to and in furtherance of the aforesaid direction, an opportunity was given to the assessee to place additional material. The assessee merely furnished the statement of the deposits made in the bank account on those dates, on which the advance amounting to Rs 50 lakhs was made to the sister concern. It, however, despite the direction did not furnish the copy of the bank statement to show as to whether there had been a credit balance or debit balance in the bank accounts on those dates. In this situation, it was observed: "If there was a debit balance, then it could safely be inferred that interest bearing overdraft facility of the bank was utilised to make those advances. But the assessee till date has not furnished any such statement. In view of this fact, the disallowance of Rs 10 lakhs is to be sustained." 5. The High Court in the impugned judgment has observed that in spite of giving opportunity to the appellant, it has not filed the necessary statement before the Commissioner of Income Tax. It is primarily based on this finding of fact that the High Court dismissed the statutory appeal filed by the appellant. 6. The learned counsel appearing for the appellant points out from the record that the observations made by the High Court are factually incorrect and, as a matter of fact, the statement of relevant account was produced before the Commissioner of Income Tax, copies of which are in these appeal papers at pp. 70-74, notice of which has not been taken by the High Court. The learned counsel stated that it is in view of this factual error that the High Court has, by the impugned order, allowed the appeal of the respondent. 7. We have seen from the file that, as contended by the learned counsel, certain statements were produced before the authorities, notice of which has not been taken by the High Court. The contents of these statements would have vital importance on the ultimate decision that the High Court may have to take. Therefore, we think it appropriate that since the High Court has proceeded on an erroneous factual basis, this matter should be remanded back to the High Court to consider the material produced by the appellant which is found at pp. 70-74 of the appeal papers and decide the case on that basis.
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1
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7. We have seen from the file that, as contended by the learned counsel, certain statements were produced before the authorities, notice of which has not been taken by the High Court. The contents of these statements would have vital importance on the ultimate decision that the High Court may have to take. Therefore, we think it appropriate that since the High Court has proceeded on an erroneous factual basis, this matter should be remanded back to the High Court to consider the material produced by the appellant which is found at pp.4 of the appeal papers and decide the case on that basis.
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Thakoreshri Naharsinghji Dolatsinghji and Others Vs. State of Gujarat and Others | deemed to include the concession of the right of the Government to all trees growing on that land which may not have been, or which shall not hereafter be, expressly reserved at the time of granting such permissions, or which may not have been reserved, under any of the foregoing provisions of this section, at or about the time of the original survey settlement of the said village or portion of a village.Explanation.-In the second paragraph of this section, the expression "In the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of this Act" shall include cases where the work of the original survey settlement referred to therein was undertaken before the passing of this Act as well as cases where the work of an original survey settlement may be undertaken at any time after the passing of this Act."11. This case is not covered by para 1 extracted above. But by legal fiction as introduced in section 216(2) the survey settlement should be deemed to have been completed in 1936, which was after the passing of the Land Revenue Code in the year 1879. The alienated lands became unalienated on the abolition of the Jagirs. Therefore, the right to own the trees must be deemed to have been conceded to the occupant of such land as there was no reservation made by the Government or the Survey Authority.12. In Mavinkurves case from the facts stated in the beginning of the judgment of this Court it would appear that the dispute related to cutting of teak and Pancharao trees standing in the forest lands, that is to say, special kind of trees in respect of which a notification under section 34A of the Indian Forest Act had been issued. The High Court in that case had expressed the view that the occupants on the abolition of the Jagirs became entitled to trees standing on the forest lands. But this Court did not countenance that view stating at page 184:-"In our opinion, the rights of the occupants under the Bombay Land Revenue Code do not include the right to cut and remove the trees from the forest lands. The reason is that the 36 villages in dispute have not been surveyed or settled and until there is completion of the survey and settlement there is no question of concession on the part of the State Government of the right to the trees in favour of the occupants. Section 40 of the Bombay Land Revenue Code provides that in the case of villages of which the original survey settlement has been completed before the passing of the Act, the right of the Government to all trees in un alienated land, except trees reserved by the Government or by any survey officer, whether by express order made at, or about the time of such settlement, or under any rule, or general order in force at th e time of such settlement, or by notification made and published at, or at any time after, such settlement, shall be deemed to have been conceded to the occupant. The second para of s. 40 deals with concession of Government rights to trees in case of settlements completed after the passing of the Act. The second para states that in the case of villages or portions of villages of which the original survey settlement shall be completed after the pas sing of the Act, the right of the Government to all trees in unalienated land shall be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government, or by any survey officer on behalf of the Government, either expressly at or about the time of such settlement, or generally by notification made and published at any time previous to the completion of the survey settlement.13. We distinguish this case on the ground that there was survey settlement in the cases before us and the occupants are entitled to the benefit of para 2 of section 40.In passing we may also refer to another decision of this Court in The State of Gujarat v. Kumar Shri Ranjit Singhji Bhavansinghji and others where Shah J., as he then was, delivering the judgment on behalf of the Court pointed out that the High Court rightly held that the respondent was entitled to receive compensation in respect of the trees because the restriction on the power of alienation put upon the absolute grantee "did not limit the title of the respondent in the lands and in things attached thereto." Mavi nkurves case was distinguished on the ground that in that case "the State of Bombay which had at the relevant time jurisdiction issued a notification under Section 34-A of the Indian Forest Act, declaring all uncultivated lands in the villages of the Jagir to be forests for the purposes of Chapter V of that Act. On that account the forests were deemed protected forests and the Jagirdar had no right to cut and remove trees from the forest lands as owner and that under the Bombay Land Revenue Code, 1879, the rights of occupancy did not carry the right to cut and remove trees from forest lands."14. Lastly we may just note that Mr. Chitley with reference to para 3 of section 40 of the Land Revenue Code argued that on the abolition of the Jagir the occupant was given permission to occupy the land, whether the permission was as a matter of law or in fact is immaterial and such permission shall be deemed to include the concession of the right of the Government to all trees growing on that land. We do not think that reliance on para 3 of section 40 by learned counsel for the appellant is correct. Permission means factual permission and not giving the right to a person as an occupant under section 5(1) (b) of the Jagirs Abolition Act.15. | 1[ds]On reading these provisions simpliciter one could say that the trees attached to the earth formed part of the land and the appellant became occupant of the land alongwith the trees. Under section 8 of the Jagirs Abolition Act all public roads etc. situate i n Jagir villages vest in the Government. Indisputably the land or the trees in question are not covered by section 8. Under section 9 "the rights to trees specially reserved underthe Indian Forest Act, 1927, or any other law for the time being in force...shall vest in the State Government..........." In the present case neither the rights to trees were specially reserved under the Indian Forest Act nor was it a case where the State Government by any notification in the official gazette had declared any trees or class of trees in a protected forest to be reserved from a date fixed byHigh Court in the present cases has taken too narrow a view of the procedure for survey settlement and when the attention of the learned Judges was drawn to sections 107, 112, 117R and 216 of the Land Revenue Code to press the point that there was a survey settlement in the cases before the High Court the point was rejected on the ground of lack of pleading to that effect. But in the Writ Petitions with which we are concerned in these appeals there was not only a specific averment and it was not specifically denied but documents had been filed along wit h the Writ Petitions to show that there was a survey settlement in the Idar State in the year 1936. That being so, we hold that there being no reservation of the trees in favour of the State, the occupant became entitled to the same on the abolition ofby legal fiction as introduced in section 216(2) the survey settlement should be deemed to have been completed in 1936, which was after the passing of the Land Revenue Code in the year 1879. The alienated lands became unalienated on the abolition of the Jagirs. Therefore, the right to own the trees must be deemed to have been conceded to the occupant of such land as there was no reservation made by the Government or the Surveywe may just note that Mr. Chitley with reference to para 3 of section 40 of the Land Revenue Code argued that on the abolition of the Jagir the occupant was given permission to occupy the land, whether the permission was as a matter of law or in fact is immaterial and such permission shall be deemed to include the concession of the right of the Government to all trees growing on that land. We do not think that reliance on para 3 of section 40 by learned counsel for the appellant is correct. Permission means factual permission and not giving the right to a person as an occupant under section 5(1) (b) of the Jagirs Abolition Act. | 1 | 3,653 | 530 | ### 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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deemed to include the concession of the right of the Government to all trees growing on that land which may not have been, or which shall not hereafter be, expressly reserved at the time of granting such permissions, or which may not have been reserved, under any of the foregoing provisions of this section, at or about the time of the original survey settlement of the said village or portion of a village.Explanation.-In the second paragraph of this section, the expression "In the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of this Act" shall include cases where the work of the original survey settlement referred to therein was undertaken before the passing of this Act as well as cases where the work of an original survey settlement may be undertaken at any time after the passing of this Act."11. This case is not covered by para 1 extracted above. But by legal fiction as introduced in section 216(2) the survey settlement should be deemed to have been completed in 1936, which was after the passing of the Land Revenue Code in the year 1879. The alienated lands became unalienated on the abolition of the Jagirs. Therefore, the right to own the trees must be deemed to have been conceded to the occupant of such land as there was no reservation made by the Government or the Survey Authority.12. In Mavinkurves case from the facts stated in the beginning of the judgment of this Court it would appear that the dispute related to cutting of teak and Pancharao trees standing in the forest lands, that is to say, special kind of trees in respect of which a notification under section 34A of the Indian Forest Act had been issued. The High Court in that case had expressed the view that the occupants on the abolition of the Jagirs became entitled to trees standing on the forest lands. But this Court did not countenance that view stating at page 184:-"In our opinion, the rights of the occupants under the Bombay Land Revenue Code do not include the right to cut and remove the trees from the forest lands. The reason is that the 36 villages in dispute have not been surveyed or settled and until there is completion of the survey and settlement there is no question of concession on the part of the State Government of the right to the trees in favour of the occupants. Section 40 of the Bombay Land Revenue Code provides that in the case of villages of which the original survey settlement has been completed before the passing of the Act, the right of the Government to all trees in un alienated land, except trees reserved by the Government or by any survey officer, whether by express order made at, or about the time of such settlement, or under any rule, or general order in force at th e time of such settlement, or by notification made and published at, or at any time after, such settlement, shall be deemed to have been conceded to the occupant. The second para of s. 40 deals with concession of Government rights to trees in case of settlements completed after the passing of the Act. The second para states that in the case of villages or portions of villages of which the original survey settlement shall be completed after the pas sing of the Act, the right of the Government to all trees in unalienated land shall be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government, or by any survey officer on behalf of the Government, either expressly at or about the time of such settlement, or generally by notification made and published at any time previous to the completion of the survey settlement.13. We distinguish this case on the ground that there was survey settlement in the cases before us and the occupants are entitled to the benefit of para 2 of section 40.In passing we may also refer to another decision of this Court in The State of Gujarat v. Kumar Shri Ranjit Singhji Bhavansinghji and others where Shah J., as he then was, delivering the judgment on behalf of the Court pointed out that the High Court rightly held that the respondent was entitled to receive compensation in respect of the trees because the restriction on the power of alienation put upon the absolute grantee "did not limit the title of the respondent in the lands and in things attached thereto." Mavi nkurves case was distinguished on the ground that in that case "the State of Bombay which had at the relevant time jurisdiction issued a notification under Section 34-A of the Indian Forest Act, declaring all uncultivated lands in the villages of the Jagir to be forests for the purposes of Chapter V of that Act. On that account the forests were deemed protected forests and the Jagirdar had no right to cut and remove trees from the forest lands as owner and that under the Bombay Land Revenue Code, 1879, the rights of occupancy did not carry the right to cut and remove trees from forest lands."14. Lastly we may just note that Mr. Chitley with reference to para 3 of section 40 of the Land Revenue Code argued that on the abolition of the Jagir the occupant was given permission to occupy the land, whether the permission was as a matter of law or in fact is immaterial and such permission shall be deemed to include the concession of the right of the Government to all trees growing on that land. We do not think that reliance on para 3 of section 40 by learned counsel for the appellant is correct. Permission means factual permission and not giving the right to a person as an occupant under section 5(1) (b) of the Jagirs Abolition Act.15.
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On reading these provisions simpliciter one could say that the trees attached to the earth formed part of the land and the appellant became occupant of the land alongwith the trees. Under section 8 of the Jagirs Abolition Act all public roads etc. situate i n Jagir villages vest in the Government. Indisputably the land or the trees in question are not covered by section 8. Under section 9 "the rights to trees specially reserved underthe Indian Forest Act, 1927, or any other law for the time being in force...shall vest in the State Government..........." In the present case neither the rights to trees were specially reserved under the Indian Forest Act nor was it a case where the State Government by any notification in the official gazette had declared any trees or class of trees in a protected forest to be reserved from a date fixed byHigh Court in the present cases has taken too narrow a view of the procedure for survey settlement and when the attention of the learned Judges was drawn to sections 107, 112, 117R and 216 of the Land Revenue Code to press the point that there was a survey settlement in the cases before the High Court the point was rejected on the ground of lack of pleading to that effect. But in the Writ Petitions with which we are concerned in these appeals there was not only a specific averment and it was not specifically denied but documents had been filed along wit h the Writ Petitions to show that there was a survey settlement in the Idar State in the year 1936. That being so, we hold that there being no reservation of the trees in favour of the State, the occupant became entitled to the same on the abolition ofby legal fiction as introduced in section 216(2) the survey settlement should be deemed to have been completed in 1936, which was after the passing of the Land Revenue Code in the year 1879. The alienated lands became unalienated on the abolition of the Jagirs. Therefore, the right to own the trees must be deemed to have been conceded to the occupant of such land as there was no reservation made by the Government or the Surveywe may just note that Mr. Chitley with reference to para 3 of section 40 of the Land Revenue Code argued that on the abolition of the Jagir the occupant was given permission to occupy the land, whether the permission was as a matter of law or in fact is immaterial and such permission shall be deemed to include the concession of the right of the Government to all trees growing on that land. We do not think that reliance on para 3 of section 40 by learned counsel for the appellant is correct. Permission means factual permission and not giving the right to a person as an occupant under section 5(1) (b) of the Jagirs Abolition Act.
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V.M. Gadre (Dead) By Lrs Vs. Shri M.G. Diwan | may have been given to fixation of pension whereas in another the benefit may have been given to house rent or maximum medical expenses. This becomes clear if we examine cases under the Industrial Disputes Act where questions of fixation of service conditions on region-cum- industry basis are attempted. While exercising jurisdiction under Article 32 read with Article 142 it would not be permissible for the Court to substitute all the existing service conditions by a totally new set of service conditions. That would tantamount to re-writing the service conditions and consequentially the retiral benefits as well for all those who had retired long back and are in receipt of pension under the extant rules. Realising this difficulty the relief was confined to the first two demands only and that too in modified form. The learned counsel for the LIC submitted that if the Court on humanitarian grounds proposes a reasonable hike in the pensionary benefits without raising an excessive fiscal burden, it will have no objection to grant the same.11. We must, therefore, confine ourselves to the first two reliefs. Actually the relief for fixation of the minimum pension at Rs. 375/- p.m. has in fact been satisfied by the interim order of this Court. Counsel for LIC did not contended for its reduction. However, counel for the petitioners contented for increase in the minimum in view of the passage of time since the filing of this petition. During the course of the hearing of this petition at the behest of the Court, several alternatives were worked out by the LIC and presented to the Court. These may be reproduced as under :- "Scheme A:The Pension Fund will be dissolved and the corpus of the Fund will be applied for issuing individual annuity policies to the pensioners. On doing so all the pensioners will be allowed an increase of 10% in the pension and the minimum pension will be increased to Rs. 500/- per month. The pension presently being paid and the annuity payable on giving 10% rise to a few of the pensioners are as follows :- Pension being paid as per the Interim order dated 7.5.1991, Annuity on revision (Rs.) (Rs.) 375 500 444 500 512 563 605 666 703 773 803 887 898 988 933 1026 1133 1246 1202.50 1323Scheme B:The Pension Fund will be dissolved and the corpus of the Fund will be applied for issuing individual annuity policies to the pensioners. Every pensioner will be given a minimum annuity of Rs. 500/- per month. Further, the pension will be increased every year at 2.5% per annum. The pension presently being paid and the annuity payable to a few of the pensioners for the next 10 years will be as follows: Pension being paid as per the Interim Order dated 7.5.1991 Annuity payable on revision + + + + Aug 94 Aug 95 Aug 96 Aug 97 Aug 98 375 500 513 526 539 552 444 500 513 526 539 552 512 525 538 551 565 579 605 620 636 652 668 685 703 721 739 757 776 795 806 826 847 868 890 912 898 920 943 967 991 1016 933 956 980 1005 1030 1056 1133 1161 1190 1220 1251 1282 1202.50 1233 1264 1296 1328 1361Pension being paid as per the Interim Order dated 7.5.1991 Annuity payable on revision + + + + Aug 99 Aug 2000 Aug 01 Aug 02 Aug 03 375 566 580 595 610 625 444 566 580 595 610 625 512 593 608 623 639 655 605 702 720 738 756 775 703 815 835 856 877 899 806 935 958 982 1007 1032 898 1041 1067 1094 1121 1149 933 1082 1109 1137 1165 1194 1133 1314 1347 1381 1415 1450 1202.50 1395 1430 1466 1503 1541Scheme C: If the corpus of the Fund on dissolution of the Oriental Pension Fund is taken to be Rs. 2 crores and if an increase of 10% per annum in the annuity is to be provided, the minimum pension amount that would be possible is Rs. 575/- p.m. and the pension payment to a few of the pensioners for the next 5 years would be as follows:-Individual Annuity policies will be issued to provide for the payment as above." 12. We have carefully considered the three schemes worked out at our behest. It was emphasised on behalf of the LIC that any increase in pension will throw a corresponding financial burden on the establishment. It was further urged that in law the pensioners are not entitled to any increase but the LIC has always adopted a humanitarian approach in such cases and has, therefore, even in the past granted reasonable increases in pension. Therefore, counsel for the LIC contended that increase, if any, must take into consideration the financial burden that may fall on the LIC. However, counsel for the pensioners submitted that the pensioners having served the establishment faithfully during their service can legitmately expect a reasonable sum by way of pension which would help them to survive in these days of high inflation. The pensioners when they subscribed to the pension plan could not have imagined the fall in the rupee value and could not have visualised the high cost of living and, therefore, where the establishment can bear the burden, the Court should not deny to them a reasonable increase in pension.13. Taking in view the above submissions we are of the opinion that Scheme `A gives only a marginal benefit to the pensioners at the levels below the minimum. Scheme `B is an improved version of Scheme `A and offers an annual increase but having regard to the age factor of the pensioners the progression in regard to annual increments is rather slow and limited. We are, therefore, inclined to accept Scheme `C since we are accepting it as a one-time final measure. We find that this scheme is more beneficial and would also provide a measure of satisfaction in view of the annual increments. | 1[ds]9. It is further the case of the LIC that in order to pay a minimum pension of Rs. 375/- p.m. it will require an amount of Rs. 8,35,000/- at the initial stage to be followed by further subventions to maintain the viability of the Fund and if payment has to be made at that rate from 1.1.1986 the Fund will have to be augmented by a sum of Rs. 26,00,000/- to meet its liability upto 30.4.1991 and with the added liability of dearness allowance or relief on pension for the said period the additional liability will be a further Rs. 11,90,00,000/-, a financial burden which LIC can ill-afford to meet. If the reliefs claimed by the Oriental pensioners is conceded under different heads the total liability is expected to rise to Rs. 24,20,86,642/-. Such a huge financial burden cannot be borne by the LIC yet the LIC has provided subvention to the tune of Rs. 1,43,00,000/- from 1965 to 1985. The LICs contributions to the Fund thus work out to be 22.5% as against the maximum 10% interest paid on Provident Fund Deposits. The Oriental pensioners are thus better placed and hence the demand by the LIC employees to be brought on par with the Pension-Plan.10. Several reliefs have been claimed in paragraph 55 of the writ petition. The first two reliefs need be noticed. The first is to step up the pension to a minimum of Rs. 375/- p.m. and the second is to grant dearness allowance/relief linked with the cost index number in January and July every year as is admissible to pensioners of the Central Government or the State Bank of India with effect from 1.1.1973. There is the demand for refund of the 5% contribution recovered from 1954 and to discontinue the deduction made at rate of 6.38% from the pension payable under the Scheme. Next it is prayed that a Family Pension Scheme and Medical Reimbursement Scheme be introduced and the fixation of the pension amount be revised on the basis of the one calculated on the average pay of ten months. It is obvious from the above reliefs claimed in this case that the pensioners desire to give a complete go-by to the extant pension-plan and replace it by a totally new scheme. These demands made in a petition under Article 32 of the Constitution totally overlook the fact the Court cannot substitute a totally new pension-plan in place of an existing one as each service and each institution has its own service conditions and merely because in another service the pension-plan is better it cannot be adopted and substituted in a different service. In any service a pension plan is only one component of the basket of service conditions for that service and it cannot be viewed in isolation and where comparison is permissible all the conditions have to be compared because in one service weightage may have been given to fixation of pension whereas in another the benefit may have been given to house rent or maximum medical expenses.This becomes clear if we examine cases under the Industrial Disputes Act where questions of fixation of service conditions ony basis areattempted. While exercising jurisdiction under Article 32 read with Article 142 it would not be permissible for the Court to substitute all the existing service conditions by a totally new set of service conditions. That would tantamount to re-writing the service conditions and consequentially the retiral benefits as well for all those who had retired long back and are in receipt of pension under the extant rules. Realising this difficulty the relief was confined to the first two demands only and that too in modified form. The learned counsel for the LIC submitted that if the Court on humanitarian grounds proposes a reasonable hike in the pensionary benefits without raising an excessive fiscal burden, it will have no objection to grant the same.11. We must, therefore, confine ourselves to the first two reliefs. Actually the relief for fixation of the minimum pension at Rs. 375/- p.m. has in fact been satisfied by the interim order of this Court. Counsel for LIC did not contended for its reduction. However, counel for the petitioners contented for increase in the minimum in view of the passage of time since the filing of this petition. During the course of the hearing of this petition at the behest of the Court, several alternatives were worked out by the LIC and presented to the Court.We have carefully considered the three schemes worked out at our behest. It was emphasised on behalf of the LIC that any increase in pension will throw a corresponding financial burden on the establishment. It was further urged that in law the pensioners are not entitled to any increase but the LIC has always adopted a humanitarian approach in such cases and has, therefore, even in the past granted reasonable increases in pension. Therefore, counsel for the LIC contended that increase, if any, must take into consideration the financial burden that may fall on the LIC. However, counsel for the pensioners submitted that the pensioners having served the establishment faithfully during their service can legitmately expect a reasonable sum by way of pension which would help them to survive in these days of high inflation. The pensioners when they subscribed to the pension plan could not have imagined the fall in the rupee value and could not have visualised the high cost of living and, therefore, where the establishment can bear the burden, the Court should not deny to them a reasonable increase in pension.13. Taking in view the above submissions we are of the opinion that Scheme `A gives only a marginal benefit to the pensioners at the levels below the minimum. Scheme `B is an improved version of Scheme `A and offers an annual increase but having regard to the age factor of the pensioners the progression in regard to annual increments is rather slow and limited. We are, therefore, inclined to accept Scheme `C since we are accepting it as a one-time final measure. We find that this scheme is more beneficial and would also provide a measure of satisfaction in view of the annual increments. | 1 | 3,527 | 1,108 | ### 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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may have been given to fixation of pension whereas in another the benefit may have been given to house rent or maximum medical expenses. This becomes clear if we examine cases under the Industrial Disputes Act where questions of fixation of service conditions on region-cum- industry basis are attempted. While exercising jurisdiction under Article 32 read with Article 142 it would not be permissible for the Court to substitute all the existing service conditions by a totally new set of service conditions. That would tantamount to re-writing the service conditions and consequentially the retiral benefits as well for all those who had retired long back and are in receipt of pension under the extant rules. Realising this difficulty the relief was confined to the first two demands only and that too in modified form. The learned counsel for the LIC submitted that if the Court on humanitarian grounds proposes a reasonable hike in the pensionary benefits without raising an excessive fiscal burden, it will have no objection to grant the same.11. We must, therefore, confine ourselves to the first two reliefs. Actually the relief for fixation of the minimum pension at Rs. 375/- p.m. has in fact been satisfied by the interim order of this Court. Counsel for LIC did not contended for its reduction. However, counel for the petitioners contented for increase in the minimum in view of the passage of time since the filing of this petition. During the course of the hearing of this petition at the behest of the Court, several alternatives were worked out by the LIC and presented to the Court. These may be reproduced as under :- "Scheme A:The Pension Fund will be dissolved and the corpus of the Fund will be applied for issuing individual annuity policies to the pensioners. On doing so all the pensioners will be allowed an increase of 10% in the pension and the minimum pension will be increased to Rs. 500/- per month. The pension presently being paid and the annuity payable on giving 10% rise to a few of the pensioners are as follows :- Pension being paid as per the Interim order dated 7.5.1991, Annuity on revision (Rs.) (Rs.) 375 500 444 500 512 563 605 666 703 773 803 887 898 988 933 1026 1133 1246 1202.50 1323Scheme B:The Pension Fund will be dissolved and the corpus of the Fund will be applied for issuing individual annuity policies to the pensioners. Every pensioner will be given a minimum annuity of Rs. 500/- per month. Further, the pension will be increased every year at 2.5% per annum. The pension presently being paid and the annuity payable to a few of the pensioners for the next 10 years will be as follows: Pension being paid as per the Interim Order dated 7.5.1991 Annuity payable on revision + + + + Aug 94 Aug 95 Aug 96 Aug 97 Aug 98 375 500 513 526 539 552 444 500 513 526 539 552 512 525 538 551 565 579 605 620 636 652 668 685 703 721 739 757 776 795 806 826 847 868 890 912 898 920 943 967 991 1016 933 956 980 1005 1030 1056 1133 1161 1190 1220 1251 1282 1202.50 1233 1264 1296 1328 1361Pension being paid as per the Interim Order dated 7.5.1991 Annuity payable on revision + + + + Aug 99 Aug 2000 Aug 01 Aug 02 Aug 03 375 566 580 595 610 625 444 566 580 595 610 625 512 593 608 623 639 655 605 702 720 738 756 775 703 815 835 856 877 899 806 935 958 982 1007 1032 898 1041 1067 1094 1121 1149 933 1082 1109 1137 1165 1194 1133 1314 1347 1381 1415 1450 1202.50 1395 1430 1466 1503 1541Scheme C: If the corpus of the Fund on dissolution of the Oriental Pension Fund is taken to be Rs. 2 crores and if an increase of 10% per annum in the annuity is to be provided, the minimum pension amount that would be possible is Rs. 575/- p.m. and the pension payment to a few of the pensioners for the next 5 years would be as follows:-Individual Annuity policies will be issued to provide for the payment as above." 12. We have carefully considered the three schemes worked out at our behest. It was emphasised on behalf of the LIC that any increase in pension will throw a corresponding financial burden on the establishment. It was further urged that in law the pensioners are not entitled to any increase but the LIC has always adopted a humanitarian approach in such cases and has, therefore, even in the past granted reasonable increases in pension. Therefore, counsel for the LIC contended that increase, if any, must take into consideration the financial burden that may fall on the LIC. However, counsel for the pensioners submitted that the pensioners having served the establishment faithfully during their service can legitmately expect a reasonable sum by way of pension which would help them to survive in these days of high inflation. The pensioners when they subscribed to the pension plan could not have imagined the fall in the rupee value and could not have visualised the high cost of living and, therefore, where the establishment can bear the burden, the Court should not deny to them a reasonable increase in pension.13. Taking in view the above submissions we are of the opinion that Scheme `A gives only a marginal benefit to the pensioners at the levels below the minimum. Scheme `B is an improved version of Scheme `A and offers an annual increase but having regard to the age factor of the pensioners the progression in regard to annual increments is rather slow and limited. We are, therefore, inclined to accept Scheme `C since we are accepting it as a one-time final measure. We find that this scheme is more beneficial and would also provide a measure of satisfaction in view of the annual increments.
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followed by further subventions to maintain the viability of the Fund and if payment has to be made at that rate from 1.1.1986 the Fund will have to be augmented by a sum of Rs. 26,00,000/- to meet its liability upto 30.4.1991 and with the added liability of dearness allowance or relief on pension for the said period the additional liability will be a further Rs. 11,90,00,000/-, a financial burden which LIC can ill-afford to meet. If the reliefs claimed by the Oriental pensioners is conceded under different heads the total liability is expected to rise to Rs. 24,20,86,642/-. Such a huge financial burden cannot be borne by the LIC yet the LIC has provided subvention to the tune of Rs. 1,43,00,000/- from 1965 to 1985. The LICs contributions to the Fund thus work out to be 22.5% as against the maximum 10% interest paid on Provident Fund Deposits. The Oriental pensioners are thus better placed and hence the demand by the LIC employees to be brought on par with the Pension-Plan.10. Several reliefs have been claimed in paragraph 55 of the writ petition. The first two reliefs need be noticed. The first is to step up the pension to a minimum of Rs. 375/- p.m. and the second is to grant dearness allowance/relief linked with the cost index number in January and July every year as is admissible to pensioners of the Central Government or the State Bank of India with effect from 1.1.1973. There is the demand for refund of the 5% contribution recovered from 1954 and to discontinue the deduction made at rate of 6.38% from the pension payable under the Scheme. Next it is prayed that a Family Pension Scheme and Medical Reimbursement Scheme be introduced and the fixation of the pension amount be revised on the basis of the one calculated on the average pay of ten months. It is obvious from the above reliefs claimed in this case that the pensioners desire to give a complete go-by to the extant pension-plan and replace it by a totally new scheme. These demands made in a petition under Article 32 of the Constitution totally overlook the fact the Court cannot substitute a totally new pension-plan in place of an existing one as each service and each institution has its own service conditions and merely because in another service the pension-plan is better it cannot be adopted and substituted in a different service. In any service a pension plan is only one component of the basket of service conditions for that service and it cannot be viewed in isolation and where comparison is permissible all the conditions have to be compared because in one service weightage may have been given to fixation of pension whereas in another the benefit may have been given to house rent or maximum medical expenses.This becomes clear if we examine cases under the Industrial Disputes Act where questions of fixation of service conditions ony basis areattempted. While exercising jurisdiction under Article 32 read with Article 142 it would not be permissible for the Court to substitute all the existing service conditions by a totally new set of service conditions. That would tantamount to re-writing the service conditions and consequentially the retiral benefits as well for all those who had retired long back and are in receipt of pension under the extant rules. Realising this difficulty the relief was confined to the first two demands only and that too in modified form. The learned counsel for the LIC submitted that if the Court on humanitarian grounds proposes a reasonable hike in the pensionary benefits without raising an excessive fiscal burden, it will have no objection to grant the same.11. We must, therefore, confine ourselves to the first two reliefs. Actually the relief for fixation of the minimum pension at Rs. 375/- p.m. has in fact been satisfied by the interim order of this Court. Counsel for LIC did not contended for its reduction. However, counel for the petitioners contented for increase in the minimum in view of the passage of time since the filing of this petition. During the course of the hearing of this petition at the behest of the Court, several alternatives were worked out by the LIC and presented to the Court.We have carefully considered the three schemes worked out at our behest. It was emphasised on behalf of the LIC that any increase in pension will throw a corresponding financial burden on the establishment. It was further urged that in law the pensioners are not entitled to any increase but the LIC has always adopted a humanitarian approach in such cases and has, therefore, even in the past granted reasonable increases in pension. Therefore, counsel for the LIC contended that increase, if any, must take into consideration the financial burden that may fall on the LIC. However, counsel for the pensioners submitted that the pensioners having served the establishment faithfully during their service can legitmately expect a reasonable sum by way of pension which would help them to survive in these days of high inflation. The pensioners when they subscribed to the pension plan could not have imagined the fall in the rupee value and could not have visualised the high cost of living and, therefore, where the establishment can bear the burden, the Court should not deny to them a reasonable increase in pension.13. Taking in view the above submissions we are of the opinion that Scheme `A gives only a marginal benefit to the pensioners at the levels below the minimum. Scheme `B is an improved version of Scheme `A and offers an annual increase but having regard to the age factor of the pensioners the progression in regard to annual increments is rather slow and limited. We are, therefore, inclined to accept Scheme `C since we are accepting it as a one-time final measure. We find that this scheme is more beneficial and would also provide a measure of satisfaction in view of the annual increments.
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Prahlad Sharma Vs. State Of U.P. | and provisions relating to the government employees could not be applicable to those employees. In paragraph 10 of the judgment it is held as follows: ".... We must, therefore, hold that the corporation which is Hindustan Steel Limited in this case is not a department of the Government nor are the servants of it holding posts under the State. It has its independent existence and by law relating to Corporations it is distinct even from its members." It was also observed that even though a corporation may be completely owned by the government or the directors may be appointed by the President of India, nevertheless in the eye of the law the company was a separate entity and had a separate legal existence. 9. The other decision which has been referred by the learned counsel for the appellant is reported in 1994 Supp.(3) SCC 385, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. and Anr. vs. Employees Union and Another. In this case, in the appointment letter which was issued to the seasonal employees, it was specified therein that their conditions of service shall be governed by Model Standing Orders. Some of the provisions of the Model Standing Orders provided for making the services of some categories of employees permanent. The seasonal employees also claimed the same benefit. It has been held that it was incorrect to say that all the Model Standing Orders would be applicable to the seasonal employees. It has been observed that the Model Standing Orders would be applicable to the seasonal employees mutatis-mutandis. It is further observed that the Model Standing Order No.4-B in particular, will be inapplicable to the seasonal employees because of the very nature of their employment and hence it could not be read into service conditions of the seasonal employees even though it was mentioned in their letter of appointments that they shall be governed by the provisions of the Model Standing Orders. It was further held that only such conditions of service would be applicable which could be applied to the seasonal employees and not the other conditions. It has also been observed that the Model Standing Orders would be applicable to the seasonal employees mutatis-mutandis. 10. The expression mutatis-mutandis, itself implies applicability of any provision with necessary changes in points of detail. The rules which are adopted, as has been done in the present case, make the principles embodied in the rules applicable and not the details pertaining to particular authority or the things of that nature. In the present case, we find that the High Court has found that the U.P. Rules of 1999 have been adopted mutatis-mutandis. Therefore, in our view, the revisional power which has been vested in the state government in respect of the employees of the state may be exercisable by an authority parallel or corresponding thereto in the Corporation in regard to employees of the Corporation. 11. Learned counsel appearing for the appellant submits that the revision was filed before the state government prior to the resolution dated 10.7.2001 by which U.P. Rules of 1999 have been adopted by the corporation. On that ground also, the state government had no power to interfere in the matter since the appeal had already been decided in the year 2000 which order had become final before adoption of U.P. Rules of 1999. It is also submitted that since it is provided under rule 13 of the U.P. Rules of 1999 that the revisional powers would be exercisable in respect of the orders passed under the U.P. Rules of 1999 also leads to the interference that they are prospective in nature and would not be applicable to the orders which have not been passed under the U.P. Rules of 1999. We, however, find no substance in this submission as learned counsel for the respondent has drawn our attention to the resolution dated February 16, 1991 passed by the Board of Directors of the Corporation. The office order dated February 16, 1991 in relation to the decision of the Board of Directors of the Corporation as taken on 21.6.1990 vide resolution no. 7 is quoted below: "24(A) Disciplinary action, suspension and subsistence allowance, payment related rules and orders of the U.P. Government will be applicable on officers and employees of the Corporation." In pursuance of the above noted resolution rule 24-A was substituted in Chapter I of General Service Regulations of 1984 of the Corporation. Rule 24-A, as substituted, reads as under: "24(A) Disciplinary action, suspension and subsistence allowance payment related rules and orders of the U.P. Government will be applicable on officers and employees of the Corporation." In view of the decision of the Board of Directors and the resolution and later on as a consequence thereof substitution of Rule 24-A in the General Service Regulations of 1984 of the Corporation, it is clear that the rules as applicable to the employees of the U.P. Government, in the matters relating to disciplinary action, suspension or subsistence allowance etc. were made applicable to the employees of the Corporation. It appears that since for the employees of the state government some new rules were promulgated namely, the U.P. Government Servants (Discipline and Appeal) Rules, 1999, a second resolution was passed on 10.7.2001 specifically incorporating those rules for the purposes of disciplinary matters against the employees of the Corporation. In this light of the matter of question of giving retrospective effect to the U.P. Rules of 1999 does not arise. We feel that even if no specific resolution was passed for incorporation of U.P. Rules of 1999 shall be available in respect of the employees of the Corporation is erroneous and not sustainable. The High Court abruptly formed the opinion without examining the question at all.12. We, however, need not go into the question, as sought to be raised, as to who would be an authority parallel or corresponding to the state government in the Corporation to whom a revision may lie, since it is not involved in this case. | 1[ds]Incumbent of such officers may even though some times be Govt. servants on deputation but while working as a Chairman or the Managing Director or any authority in the organization or the corporation, they would not be subordinate to the government. It is again to be noticed that then perhaps the right to invoke the revisional powers may be available only to the concerned government servant as provided under rule 13 and may not be available to the employee of the corporation.Therefore, it is submitted and in our view, rightly, that adoption of rules are implemented in a manner as they fit in the structure of the adopting organization and not as a straight jacket application to the adopting organization. It has also been pointed out that according to the provisions of the rule 13, as it is, an order can be subjected to the revisional power of the State only if the order has been passed in exercise of any power conferred under rules of 1999. It is submitted that the orders passed by the Managing Director or the Chairman cannot be said to be orders passed under the U.P. Rules of 1999 and not under the rules as adopted by the Corporation.s, itself implies applicability of any provision with necessary changes in points of detail. The rules which are adopted, as has been done in the present case, make the principles embodied in the rules applicable and not the details pertaining to particular authority or the things of that nature. In the present case, we find that the High Court has found that the U.P. Rules of 1999 have been adoptedTherefore, in our view, the revisional power which has been vested in the state government in respect of the employees of the state may be exercisable by an authority parallel or corresponding thereto in the Corporation in regard to employees of theview of the decision of the Board of Directors and the resolution and later on as a consequence thereof substitution of Rulein the General Service Regulations of 1984 of the Corporation, it is clear that the rules as applicable to the employees of the U.P. Government, in the matters relating to disciplinary action, suspension or subsistence allowance etc. were made applicable to the employees of the Corporation. It appears that since for the employees of the state government some new rules were promulgated namely, the U.P. Government Servants (Discipline and Appeal) Rules, 1999, a second resolution was passed on 10.7.2001 specifically incorporating those rules for the purposes of disciplinary matters against the employees of the Corporation. In this light of the matter of question of giving retrospective effect to the U.P. Rules of 1999 does not arise. We feel that even if no specific resolution was passed for incorporation of U.P. Rules of 1999 shall be available in respect of the employees of the Corporation is erroneous and not sustainable. The High Court abruptly formed the opinion without examining the question at all.12. We, however, need not go into the question, as sought to be raised, as to who would be an authority parallel or corresponding to the state government in the Corporation to whom a revision may lie, since it is not involved in this case. | 1 | 2,978 | 589 | ### Instruction:
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and provisions relating to the government employees could not be applicable to those employees. In paragraph 10 of the judgment it is held as follows: ".... We must, therefore, hold that the corporation which is Hindustan Steel Limited in this case is not a department of the Government nor are the servants of it holding posts under the State. It has its independent existence and by law relating to Corporations it is distinct even from its members." It was also observed that even though a corporation may be completely owned by the government or the directors may be appointed by the President of India, nevertheless in the eye of the law the company was a separate entity and had a separate legal existence. 9. The other decision which has been referred by the learned counsel for the appellant is reported in 1994 Supp.(3) SCC 385, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. and Anr. vs. Employees Union and Another. In this case, in the appointment letter which was issued to the seasonal employees, it was specified therein that their conditions of service shall be governed by Model Standing Orders. Some of the provisions of the Model Standing Orders provided for making the services of some categories of employees permanent. The seasonal employees also claimed the same benefit. It has been held that it was incorrect to say that all the Model Standing Orders would be applicable to the seasonal employees. It has been observed that the Model Standing Orders would be applicable to the seasonal employees mutatis-mutandis. It is further observed that the Model Standing Order No.4-B in particular, will be inapplicable to the seasonal employees because of the very nature of their employment and hence it could not be read into service conditions of the seasonal employees even though it was mentioned in their letter of appointments that they shall be governed by the provisions of the Model Standing Orders. It was further held that only such conditions of service would be applicable which could be applied to the seasonal employees and not the other conditions. It has also been observed that the Model Standing Orders would be applicable to the seasonal employees mutatis-mutandis. 10. The expression mutatis-mutandis, itself implies applicability of any provision with necessary changes in points of detail. The rules which are adopted, as has been done in the present case, make the principles embodied in the rules applicable and not the details pertaining to particular authority or the things of that nature. In the present case, we find that the High Court has found that the U.P. Rules of 1999 have been adopted mutatis-mutandis. Therefore, in our view, the revisional power which has been vested in the state government in respect of the employees of the state may be exercisable by an authority parallel or corresponding thereto in the Corporation in regard to employees of the Corporation. 11. Learned counsel appearing for the appellant submits that the revision was filed before the state government prior to the resolution dated 10.7.2001 by which U.P. Rules of 1999 have been adopted by the corporation. On that ground also, the state government had no power to interfere in the matter since the appeal had already been decided in the year 2000 which order had become final before adoption of U.P. Rules of 1999. It is also submitted that since it is provided under rule 13 of the U.P. Rules of 1999 that the revisional powers would be exercisable in respect of the orders passed under the U.P. Rules of 1999 also leads to the interference that they are prospective in nature and would not be applicable to the orders which have not been passed under the U.P. Rules of 1999. We, however, find no substance in this submission as learned counsel for the respondent has drawn our attention to the resolution dated February 16, 1991 passed by the Board of Directors of the Corporation. The office order dated February 16, 1991 in relation to the decision of the Board of Directors of the Corporation as taken on 21.6.1990 vide resolution no. 7 is quoted below: "24(A) Disciplinary action, suspension and subsistence allowance, payment related rules and orders of the U.P. Government will be applicable on officers and employees of the Corporation." In pursuance of the above noted resolution rule 24-A was substituted in Chapter I of General Service Regulations of 1984 of the Corporation. Rule 24-A, as substituted, reads as under: "24(A) Disciplinary action, suspension and subsistence allowance payment related rules and orders of the U.P. Government will be applicable on officers and employees of the Corporation." In view of the decision of the Board of Directors and the resolution and later on as a consequence thereof substitution of Rule 24-A in the General Service Regulations of 1984 of the Corporation, it is clear that the rules as applicable to the employees of the U.P. Government, in the matters relating to disciplinary action, suspension or subsistence allowance etc. were made applicable to the employees of the Corporation. It appears that since for the employees of the state government some new rules were promulgated namely, the U.P. Government Servants (Discipline and Appeal) Rules, 1999, a second resolution was passed on 10.7.2001 specifically incorporating those rules for the purposes of disciplinary matters against the employees of the Corporation. In this light of the matter of question of giving retrospective effect to the U.P. Rules of 1999 does not arise. We feel that even if no specific resolution was passed for incorporation of U.P. Rules of 1999 shall be available in respect of the employees of the Corporation is erroneous and not sustainable. The High Court abruptly formed the opinion without examining the question at all.12. We, however, need not go into the question, as sought to be raised, as to who would be an authority parallel or corresponding to the state government in the Corporation to whom a revision may lie, since it is not involved in this case.
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Incumbent of such officers may even though some times be Govt. servants on deputation but while working as a Chairman or the Managing Director or any authority in the organization or the corporation, they would not be subordinate to the government. It is again to be noticed that then perhaps the right to invoke the revisional powers may be available only to the concerned government servant as provided under rule 13 and may not be available to the employee of the corporation.Therefore, it is submitted and in our view, rightly, that adoption of rules are implemented in a manner as they fit in the structure of the adopting organization and not as a straight jacket application to the adopting organization. It has also been pointed out that according to the provisions of the rule 13, as it is, an order can be subjected to the revisional power of the State only if the order has been passed in exercise of any power conferred under rules of 1999. It is submitted that the orders passed by the Managing Director or the Chairman cannot be said to be orders passed under the U.P. Rules of 1999 and not under the rules as adopted by the Corporation.s, itself implies applicability of any provision with necessary changes in points of detail. The rules which are adopted, as has been done in the present case, make the principles embodied in the rules applicable and not the details pertaining to particular authority or the things of that nature. In the present case, we find that the High Court has found that the U.P. Rules of 1999 have been adoptedTherefore, in our view, the revisional power which has been vested in the state government in respect of the employees of the state may be exercisable by an authority parallel or corresponding thereto in the Corporation in regard to employees of theview of the decision of the Board of Directors and the resolution and later on as a consequence thereof substitution of Rulein the General Service Regulations of 1984 of the Corporation, it is clear that the rules as applicable to the employees of the U.P. Government, in the matters relating to disciplinary action, suspension or subsistence allowance etc. were made applicable to the employees of the Corporation. It appears that since for the employees of the state government some new rules were promulgated namely, the U.P. Government Servants (Discipline and Appeal) Rules, 1999, a second resolution was passed on 10.7.2001 specifically incorporating those rules for the purposes of disciplinary matters against the employees of the Corporation. In this light of the matter of question of giving retrospective effect to the U.P. Rules of 1999 does not arise. We feel that even if no specific resolution was passed for incorporation of U.P. Rules of 1999 shall be available in respect of the employees of the Corporation is erroneous and not sustainable. The High Court abruptly formed the opinion without examining the question at all.12. We, however, need not go into the question, as sought to be raised, as to who would be an authority parallel or corresponding to the state government in the Corporation to whom a revision may lie, since it is not involved in this case.
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Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi & Others | Custodian-General which is under appeal before us. Learned counsel for the appellant attacked it on various grounds. He urged that the ground on which the learned custodian-General set aside the Additional Custodians order, viz., absence of notice to the prior allottees is wholly untenable.28. He contended that the allottees had no kind of interest in the land which entitled them to contest the application for confirmation, that they were at best only lessees for three years which was due to expire very shortly after the order of confirmation was passed by the Additional Custodian.He pointed out that as soon as the application for confirmation was filed on 23-2-1948, general notice by beat of drum and affixture in the locality and by publication in the Indian News Chronicle was given, that the persons impossession at the time were only the previous tenants on the land, who either attorney to the appellant or left the village, that the allottees came into possession much later and pending the disposal of the confirmation proceedings and presumably subject to its result.He also pointed out that even when the rules in this behalf came into force under Act 31 of 1950, it was discretionary with the Custodian to give notice to persons other than the transferor and transferee, if he considered them to be interested, and urged that since the same officer, Shri R. Dayal made the allotment as also the confirmation, he must be taken to have exercised his discretion properly in not giving any notice to them, in view of the imminent expiry of the three years term for which they were put in possession.29. It is strongly urged that having regard to the above considerations and to the categorical findings of the Custodian-General himself that the transaction which was confirmed, was perfectly bona fide, the setting aside of the order of confirmation against which no appeal was filed by any one, and the consequential disturbance of the vested property rights of the appellant, was in the nature of perverse exercise of revisional power.30. The learned Solicitor-General appearing for the respondent contended that the finding of the Custodian-General about the bona fides of the transaction was only tentative, that the allottees, though provisionally placed in possession of three years had, what has come to be recognised as a quasi-permanent interest that they had a genuine interest in opposing the confirmation sought, which related to a large tract of agricultural land, and which would reduce the pool of agricultural lands available for rehabilitation of displaced agriculturists and that confirmation of transactions relating to such land was opposed to the policy and directives of the Government and that the confirmation should not, in the circumstances, have been lightly granted by the Additional Custodian without notice to the allottees and a proper consideration of the policies and directives in this behalf.31. In reply thereto learned counsel for the appellant urged that the alleged policies or directive are not relevant matters for consideration by the Custodian in these proceedings which must be taken to be quasi judicial, if not judicial, unless such policies or directives are embodied in rules made by the Central Government under S. 56 (2) (q) and that no such rules were prescribed by the relevant dates and that even the Custodian-General himself in his order under appeal discounted the usefulness of any reference to notifications and directives for the purposes of this case.32. It was also urged that the matters which could by taken into consideration are regulated by S. 40 (4) of Act 31 of 1950 and that Cl. (c) thereof must be construed as referring to matters ejusdem generis with Cls. (a) and (b). But in the view we take of the order under appeal and the course we propose to adopt, we do not wish to express any opinion on the merits of the above arguments.33.The order under appeal is one passed by virtue of the wide powers of revision vested in the Custodian-General under S. 27 of the Act.The jurisdiction which has been challenged having been found in favour of the Custodian-General, this Court would normally be slow to interfere with the order on its merits. But with respect to the learned Custodian-General, his order is such that it is difficult to maintain it.34. The learned Solicitor-General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself. It is also difficult to gather from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all questions on the merits are to be reconsidered or was only a limited remand and if so what the limitations are.35. If it was meant to be an open general remand, as the concluding portion of his order seems to indicate his definite findings on points (1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directive to which his attention was drawn by the Assistant Custodian, would render it difficult for any Custodian on remand to consider any of those matters.If so, the remand would appear to serve no substantial purpose. In the circumstances, and in fairness to the learned Custodian-General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration. One such fresh consideration he will give full opportunity to both sides for presentation of their respective points of view.36. If on the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him. The learned Custodian-General may also consider the feasibility to his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revisional in this already protracted matter.37. | 1[ds]It appears to us that these contentions are unsustainable. (1905) AC 369 (A), relates to the case of a right of appeal against an order passed or to be passed in a pendinglegislature by an amendment of the Income-tax Act, which came into force on the 1-4-1926, inserted therein S. 66-A and gave a right of appeal against such orders as provided therein. In this situation the Privy council repelled the contention that the litigation, could avail himself of the new provision by pointing out the finality of the orders sought to be appealed against and referring to it as an existing right.This is obviously so because finality attached to them, the moment orders were passed, prior to the new Act. In the present case, the position is different. The action was still pending when Central Act 31 of 1950 came into force. No order was passed which could attract the attribute of finality and conclusiveness under S. 5-B of the East Punjab Act 14 of 1947.Further the possibility of such finality was definitely affected by the repealing provision in Central Ordinance No. 12 of 1949 and Central Ordinance No. 27 of 1949, which specifically provided that a pending action was to be deemed to be an action commenced under the new Ordinance as if it were in force at the time and therefore required to be continued under the new Ordinances. Each of these Ordinance provided for appeal against such an order and the second of them provided for the exercise of revisional power against an appellate order of theappears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action - though we do not so decide - no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of theare, therefore, of the opinion that the principle of (1905) AC 369 (A), cannot be invoked in support of a case of the kind we are dealing with.13. Nor can this be brought under the ambit of the phrase "previous operation of the repealed law"What in effect, learned counsel for the appellant contends for is not the "previous operation of the repealed law" but the "future operation of the previous law". There is no justification for such a construction. Besides, if in respect of the pending application in the present case, the previous repealed law is to continue to be applicable by virtue of the first portion of S. 58 (3) the question arises as to who are the authorities that can deal withapplication can be dealt with by the Custodian and on appeal by the Custodian-General only as functioning under the previous law. But as such Custodian or Custodian-General they have disappeared by virtue of the repeal. It is only the second portion of S. 58 (3) which continues them as though the appointments were made under the new Act - a position which could scarcely bethe extent of the future operation, if any, of the repealed law they can have on function. Indeed, a comparison of the wording of S. 58 of Act 31 of 1950 with the wording of S. 6 of the General Clauses Act would show that if the legislature intended either that pending proceedings were to be continued under the previous law or that anything in the nature of vested right of finality of determination or some right akin thereto was to arise in respect of such pending proceedings, arise in respect of such pending proceedings, the negative portion of S. 58 (3) would not have stopped short with saving only the "previous operation" of the repealedare, therefore, clearly of the view that the appellant cannot call in aid the principle of the case in (1905) AC 369 (A), nor can his case fall within the ambit of the first portion of sub-s. (3) of S. 58 of Act 31 ofattempting to be meticulously accurate, it may be stated in general terms, that the scheme underlying S. 58 (3) appears to be that every matter to which the new Act applies has to be treated as arising, and to be dealt with, under the new law except in so far as certain consequences have already ensued or acts have been completed prior to the appeal, to which it is the old law that withthis view of S. 58, the application of the appellant for confirmation pending on the date when Central Act 31 of 1950 came into force had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 would clearly be subject to the revisional power to the Custodian-General under S. 27 of the said27 however is very wide in its terms and it cannot be construed as being subject to any such limitations. Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality as is contended, because under S. 27, the Custodian-General can exercise revisional powers "for the purpose of satisfying himself as to the legality or propriety of any order of theare thus clearly of the opinion that the contention of the learned counsel for the appellant that the exercise of revisional powers in this case by the Custodian-General is without jurisdiction or is illegal mustjurisdiction which has been challenged having been found in favour of the Custodian-General, this Court would normally be slow to interfere with the order on its merits. But with respect to the learned Custodian-General, his order is such that it is difficult to maintainlearned Solicitor-General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself. It is also difficult to gather from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all questions on the merits are to be reconsidered or was only a limited remand and if so what the limitationsit was meant to be an open general remand, as the concluding portion of his order seems to indicate his definite findings on points (1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directive to which his attention was drawn by the Assistant Custodian, would render it difficult for any Custodian on remand to consider any of those matters.If so, the remand would appear to serve no substantial purpose. In the circumstances, and in fairness to the learned Custodian-General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration. One such fresh consideration he will give full opportunity to both sides for presentation of their respective points ofon the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him. The learned Custodian-General may also consider the feasibility to his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revisional in this already protracted matter. | 1 | 7,825 | 1,336 | ### Instruction:
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Custodian-General which is under appeal before us. Learned counsel for the appellant attacked it on various grounds. He urged that the ground on which the learned custodian-General set aside the Additional Custodians order, viz., absence of notice to the prior allottees is wholly untenable.28. He contended that the allottees had no kind of interest in the land which entitled them to contest the application for confirmation, that they were at best only lessees for three years which was due to expire very shortly after the order of confirmation was passed by the Additional Custodian.He pointed out that as soon as the application for confirmation was filed on 23-2-1948, general notice by beat of drum and affixture in the locality and by publication in the Indian News Chronicle was given, that the persons impossession at the time were only the previous tenants on the land, who either attorney to the appellant or left the village, that the allottees came into possession much later and pending the disposal of the confirmation proceedings and presumably subject to its result.He also pointed out that even when the rules in this behalf came into force under Act 31 of 1950, it was discretionary with the Custodian to give notice to persons other than the transferor and transferee, if he considered them to be interested, and urged that since the same officer, Shri R. Dayal made the allotment as also the confirmation, he must be taken to have exercised his discretion properly in not giving any notice to them, in view of the imminent expiry of the three years term for which they were put in possession.29. It is strongly urged that having regard to the above considerations and to the categorical findings of the Custodian-General himself that the transaction which was confirmed, was perfectly bona fide, the setting aside of the order of confirmation against which no appeal was filed by any one, and the consequential disturbance of the vested property rights of the appellant, was in the nature of perverse exercise of revisional power.30. The learned Solicitor-General appearing for the respondent contended that the finding of the Custodian-General about the bona fides of the transaction was only tentative, that the allottees, though provisionally placed in possession of three years had, what has come to be recognised as a quasi-permanent interest that they had a genuine interest in opposing the confirmation sought, which related to a large tract of agricultural land, and which would reduce the pool of agricultural lands available for rehabilitation of displaced agriculturists and that confirmation of transactions relating to such land was opposed to the policy and directives of the Government and that the confirmation should not, in the circumstances, have been lightly granted by the Additional Custodian without notice to the allottees and a proper consideration of the policies and directives in this behalf.31. In reply thereto learned counsel for the appellant urged that the alleged policies or directive are not relevant matters for consideration by the Custodian in these proceedings which must be taken to be quasi judicial, if not judicial, unless such policies or directives are embodied in rules made by the Central Government under S. 56 (2) (q) and that no such rules were prescribed by the relevant dates and that even the Custodian-General himself in his order under appeal discounted the usefulness of any reference to notifications and directives for the purposes of this case.32. It was also urged that the matters which could by taken into consideration are regulated by S. 40 (4) of Act 31 of 1950 and that Cl. (c) thereof must be construed as referring to matters ejusdem generis with Cls. (a) and (b). But in the view we take of the order under appeal and the course we propose to adopt, we do not wish to express any opinion on the merits of the above arguments.33.The order under appeal is one passed by virtue of the wide powers of revision vested in the Custodian-General under S. 27 of the Act.The jurisdiction which has been challenged having been found in favour of the Custodian-General, this Court would normally be slow to interfere with the order on its merits. But with respect to the learned Custodian-General, his order is such that it is difficult to maintain it.34. The learned Solicitor-General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself. It is also difficult to gather from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all questions on the merits are to be reconsidered or was only a limited remand and if so what the limitations are.35. If it was meant to be an open general remand, as the concluding portion of his order seems to indicate his definite findings on points (1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directive to which his attention was drawn by the Assistant Custodian, would render it difficult for any Custodian on remand to consider any of those matters.If so, the remand would appear to serve no substantial purpose. In the circumstances, and in fairness to the learned Custodian-General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration. One such fresh consideration he will give full opportunity to both sides for presentation of their respective points of view.36. If on the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him. The learned Custodian-General may also consider the feasibility to his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revisional in this already protracted matter.37.
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continued under the new Ordinances. Each of these Ordinance provided for appeal against such an order and the second of them provided for the exercise of revisional power against an appellate order of theappears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action - though we do not so decide - no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of theare, therefore, of the opinion that the principle of (1905) AC 369 (A), cannot be invoked in support of a case of the kind we are dealing with.13. Nor can this be brought under the ambit of the phrase "previous operation of the repealed law"What in effect, learned counsel for the appellant contends for is not the "previous operation of the repealed law" but the "future operation of the previous law". There is no justification for such a construction. Besides, if in respect of the pending application in the present case, the previous repealed law is to continue to be applicable by virtue of the first portion of S. 58 (3) the question arises as to who are the authorities that can deal withapplication can be dealt with by the Custodian and on appeal by the Custodian-General only as functioning under the previous law. But as such Custodian or Custodian-General they have disappeared by virtue of the repeal. It is only the second portion of S. 58 (3) which continues them as though the appointments were made under the new Act - a position which could scarcely bethe extent of the future operation, if any, of the repealed law they can have on function. Indeed, a comparison of the wording of S. 58 of Act 31 of 1950 with the wording of S. 6 of the General Clauses Act would show that if the legislature intended either that pending proceedings were to be continued under the previous law or that anything in the nature of vested right of finality of determination or some right akin thereto was to arise in respect of such pending proceedings, arise in respect of such pending proceedings, the negative portion of S. 58 (3) would not have stopped short with saving only the "previous operation" of the repealedare, therefore, clearly of the view that the appellant cannot call in aid the principle of the case in (1905) AC 369 (A), nor can his case fall within the ambit of the first portion of sub-s. (3) of S. 58 of Act 31 ofattempting to be meticulously accurate, it may be stated in general terms, that the scheme underlying S. 58 (3) appears to be that every matter to which the new Act applies has to be treated as arising, and to be dealt with, under the new law except in so far as certain consequences have already ensued or acts have been completed prior to the appeal, to which it is the old law that withthis view of S. 58, the application of the appellant for confirmation pending on the date when Central Act 31 of 1950 came into force had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 would clearly be subject to the revisional power to the Custodian-General under S. 27 of the said27 however is very wide in its terms and it cannot be construed as being subject to any such limitations. Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality as is contended, because under S. 27, the Custodian-General can exercise revisional powers "for the purpose of satisfying himself as to the legality or propriety of any order of theare thus clearly of the opinion that the contention of the learned counsel for the appellant that the exercise of revisional powers in this case by the Custodian-General is without jurisdiction or is illegal mustjurisdiction which has been challenged having been found in favour of the Custodian-General, this Court would normally be slow to interfere with the order on its merits. But with respect to the learned Custodian-General, his order is such that it is difficult to maintainlearned Solicitor-General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself. It is also difficult to gather from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all questions on the merits are to be reconsidered or was only a limited remand and if so what the limitationsit was meant to be an open general remand, as the concluding portion of his order seems to indicate his definite findings on points (1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directive to which his attention was drawn by the Assistant Custodian, would render it difficult for any Custodian on remand to consider any of those matters.If so, the remand would appear to serve no substantial purpose. In the circumstances, and in fairness to the learned Custodian-General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration. One such fresh consideration he will give full opportunity to both sides for presentation of their respective points ofon the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him. The learned Custodian-General may also consider the feasibility to his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revisional in this already protracted matter.
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Ram Chandra Kailash Kumar and Company Vs. State of Uttar Pradesh Etc | of this Court in Raunaq Ram Tara Chand &Ors. etc. v. The State of Punjab &Ors. But that case is distinguishable because of the language of rules 29 and 31 of the Punjab Agricultural Produce Market Rules framed in accordance with the Punjab Agricultural Produce Markets Act, 1961. Both the rules aforesaid clearly stated that the fee could be charged from the licensees only. Not only that even the charging section 23 of the Act itself stated:-"a Committee may, subject to such rules as may be made by the State Government in this behalf, levy on ad valorem basis fees on the agricultural produce brought or sold by licensees in the notified market area at a rate not exceeding rupee one fifty paise for every one hundred rupees, provided... " On the other hand in section 17 (iii) (b) of the U.P. Act and Rules 66 and 68 of the Rules charging of market fee in terms is not found to be chargeable from the licensees only. The traders cannot escape their liability to pay the fee on account of their default of taking out licences. Point No. 21 37. This point is also well founded and must be accepted as correct. Market fee can be charged only on the transactions of purchase of wood and if a manufacturer of match-sticks purchases wood from the producer for the purposes of manufacturing the sticks he will be required to pay market fee on such purchase of wood only and not on the sale of match-stick s or match boxes. Similarly market fee will be leviable on the transaction of purchase of soyabin and not on transaction of sale of soyabin products. Exactly the same will be the position with regard to the articles sold by Kisan Products Ltd. and the sale of Pan. Agricultural produce purchased by the dealers will be chargeable to market fee and not the sale of the products after one kind of processing or the other. Point No. 22 38. Under this head the submission on behalf of the fruit and vegetable merchants was that they bring their products to the market and sell them in wholesale through their commission agents. No market fee, therefore, should be charged from them. In our opinion the argument so placed on behalf of the merchants is misconceived. Under sub-clause (1) of s. 17(iii)(b) of the Act when fruits and vegetables are sold through a commission agent by the producer then the Commission agent is liable to pay the market fee and he can realise it from the purchaser of fruits and vegetables. The burden does not fall on the producer. The liability in the first instance is of the commission, agent and finally of the purchaser of the articles. Point No. 23 and 24 39. Reliance was placed upon a decision of the Mysore High Court (now Karnataka) in the case of K. N. Marudaradhya v. The Mysore State but the view taken by the Mysore High Court was dissented from by the Patna High Court in the case of Mangalchand Ramchandra and others etc. etc. v. State of Bihar. One of us (Untwalia J, ) delivering the judgment of the Patna High Court stated at page 1053 thus:"At this stage I would discuss a Bench decision of the Mysore High Court on which great reliance was pl aced on behalf of the petitioners in support of their contention that no fee can be levied on transaction of buying and selling between a dealer and a dealer even though such transactions take place within the market area or the market proper. The decision of the Mysore High Court is in the case of K. N. Marudaradhya v. The Mysore State A.I.R. 1970, Mysore 114. At page 126 (column 2) from paragraph 33 starts the discussion on the point at issue. To the extent the decision goes to hold that the purchase in respect of which the fee could be levied or collected is the earliest purchase, that is to say, the fee can be levied only on one purchase and not on subsequent purchases, with respect I am inclined to agree with that view expressed in paragraphs 33 to 38. But while discussing the point, Iyer J., has confined this earliest purchase of the agricultural produce belonging to the producer only. There does not seem to be a pointed discussion of the question whether the first purchase from a dealer could be subjected to levy or not. But by necessary implication, as I read the judgment, it seems, their Lordships of the Mysore High Court took the view that such a deal cannot be subjected to the levy of fee. With great respect, in that regard, I strike my note of dissent from the view expressed by the Mysore High Court. Firstly, merely because the object of the legislation is the protection of the agriculturist, the plain meaning of the section cannot be cut down. Secondly, they have relied upon the practice prevailing around the area under different State statutes as mentioned in paragraph 36. If I may say with respect, law could not be so decided on the basis of any practice. Of course, the interpretation given to the Statute can be supported by reference to practice. Thirdly, I am inclined to think that the Supreme Court decision in the case of Krishna Coconut Company does not lend support to the limited view expressed by the Mysore High Court." We approve of the Patna view and in the set-up of the U.P. Act after an elaborate discussion we have pointed out as to in what kind of transaction who is liable to pay the market fee. In the U.P. Act even traders under certain circumstances have been made liable to pay such fees. Similarly the argument that market fee can be charged only on those transactions in which the seller is the producer of agricultural produce and not on any other transaction is also devoid of any substance. Conclusions | 1[ds]10. These four points are taken up together as there is no substance in any of them. Declaration of big areas as Market Areas does not offend any provision of law. Any area big or small including towns and villages can be declared as Market Area under s.6 of the Ac t. As explained in the case of Kewal Krishan Puri (supra) the whole of the market area is not meant where the traders or the licensees can be allowed to set up and carry on their business. The traders are required to take out licences under s.9(2) re ad with s.11 of the Act, for such place which is either a Principal Market Yard or a Sub-Market Yard or at any specified place in the Market Area. No body can be permitted to carry on his business anywhere in the Market Area as the Market Commit tee will not be able to control and levy fee throughout the Market Area. The question of rendering service and its co-relation to the charging of fee has been elaborately discussed in the said decision and the following principles have been culled out:-"(1) That the amount of fee realised must be earmarked for rendering services to the licensees in the notified market area and a good and substantial portion of it must be shown to be expended for this purpose(2) That the services rendered to the licensees must be in relation to the transaction of purchase or sale of the agricultural produce(3) That while rendering services in the market area for the purpose of facilitating the transactions of purchase and sale with a view to achieve the objects of the marketing legislation it is not necessary to confer the whole of the benefit on the licensees but some special benefit must be conferred on them which have a direct, close and reasonable co-relation between the licensees and the transactions(4) That while conferring some special benefits on the licensee it is permissible to render such service in the market which may be in the general interest of all concerned with the transactions taking place in the market(5) That spending the amount of market fees for the purpose of augmenting the agricultural produce, its facility of transport in villages and to provide other facilities meant mainly or exclusively for the benefit of the agriculturists is not permissible on the ground that such services in the long run go to increase the volume of transactions in the market ultimately benefitting the traders also. Such an indirect and remote benefit to the traders is in no sense a special benefit to them(6) That the element of quid pro quo may not be possible or even necessary, to be established with arithmetical exactitude but even broadly and reasonably it must be established by the authorities who charge the fees that the amount is being spent for rendering services to those on whom falls the burden of the fee.(7) A t least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two-thirds or three-fourths, must be shown with reasonable certainty as being spent for rendering services of the kind mentioned above."11. As already stated, Market Yards also have been established while issuing notifications under s.7. By and large, the Mandis where the traders are carrying on their business for the time being have been declared as Market Yards. When the Market Committees are able to construct their own Market Yards, as in some places they have been able to do, then a question will arise whether a trader can be forced to go to that place only for carrying on his business in agricultural produce or he can be permitted to carry on his business in his old place. For the time being this question is left open. Market Committees have not been constituted yet in accordance with the provisions contain ed in s.13 of the Act. They have been constituted temporarily under Uttar Pradesh Krishi Utpadan Mandi Samitis (Alpakalik Vyawastha) Adhiniyam, 1972 which Act was a temporary Act and has been extended from year to year. But it is high time t hat Market Committees should be constituted in a regular manner on a permanent basis in accordance with the provisions contained in Chapter III of the Act. But the levy and collection of fee by the temporary Market Committees is not illegal as argued on behalf of the appellants. A machinery for adjudication of disputes is necessary to be provided under the Rules for the proper functioning of the Market Committees. We have already observed and expressed our hope for bringing into existence such machinery in one form or the other. But it is not correct to say that in absence of such a machinery no market fee can be levied or collected. If a dispute arises then in the first instance the Market Committee itself or any Sub-Committee appointed by it can give its finding which will be subject to challenge in any court of law when steps are taken for enforcement of the provisions for realisation of the market fee12. Under clause (b) of s.17(iii) of t he Act a minimum and maximum limit of market fee chargeable has been fixed by the legislature. The minimum is 1% and the maximum is 1 1/2 of the price of the agricultural produce sold. The fixing of the minimum of 1% fee by itself is not illegal but it would be subject to the rendering of adequate services as explained by this Court in Kewal Krishan Puris case. The facts placed before the High Court as also before us were too meagre to indicate that services to the extent of the fee levied at 1% are not being rendered. In Puris case we upheld the levy of market fee at 2% on the value of the goods sold. But there we found that the Market Committees were rendering greater services than are being rendered by the Market Committees of Uttar Pradesh. Yet charging of 1% fee as is being charged throughout the State of Uttar Pradesh by all the Market Committees is not illegal and does not go beyond the quid pro quo theory discussed in Puris case13. It is difficult to understand the significance of this point. The notification dated 11-4-1978 indicates that in the various Districts, the number of which is about 55, 250 Market Committees have been constituted and about 115 items have been selected in respect of which market fee has been directed to be levied. None of the items so specified is such that it cannot be covered by the Schedule which is a part of the Act. The definition of agricultural produce is very wide. It is not confine d to items of agricultural produce only but includes items of produce of horticulture, viticulture, apiculture, sericulture, pisci-culture, animal husbandry or forest. Such items are specified in the Act which is undoubtedly a part of the Act . That being so challenge to the notification dated 11-4-1978 on the ground that it was issued without any application of mind is devoid of any substance and must be rejected14. It is clear and it was expressly conceded to on behalf of the Market Committees and the State that there cannot be any multi point levy of market fee in the same market areaSection 17(iii)(b), as amended by U.P. Act 7 of 1978 reads as follows:-"market fee, which shall be payable on transactions of sale specified agricultural produce in the market area at such rates, being not less than one percentum and not more than one and half percentum of the price of the agricultural produce so sold, as the State Government may specify by notification, and such fee shall be realised in the following manner(1) if the produce is sold through a commission agent, the commission agent may realise the market fee from the purchaser and shall be liable to pay the same to the Committee;(2) if the produce is purchased directly by a trader from a producer the trader shall be liable to pay the market fee to the Committee;(3) if the produce is purchased by a trader from another trader, the trader selling the produce may realise it from the purchaser and shall be liable to pay the market fee to the Committee; and(4) in any other ca se of sale of such produce, the purchaser shall be liable to pay the market fee to the Committee."15. All the four clauses of clause (b) are mutually exclusive. If the produce is purchased from a producer directly the trader shall be liable to pay the market fee to the Committee in accordance with sub-clause (2). But if the trader sells the same produce or any product of the same produce to another trader neither the seller-trader nor the purchaser-trader can be made to pay the market fee under sub-clause (3). So far the position was not disputed by the Market Committees, rather it was conceded, and in our opinion, rightly. But some difficulty arises in regard to the products of the agricultural produce which has been subjected to the levy of market fee. This will be relevant when we come to consider the various agricultural produce in respect of which challenge was made on the ground that it amounts to multi point levy. At this stage we may explain our view point by taking a few examples from the Schedule appended to the Act. Wheat, an agricultural produce, is mentioned under the heading CerealsWe shall show hereinafter that in a particular market area market fee can not be levied both in relation to the transaction of purchase and sale of paddy and the rice produced from the same paddy. Fee can be charged only on one transaction. This finds support from the unamended Rules a s they are, wherein is to be found sub-r.(2) of Rule 66. But we find nothing in the provisions of the Act or the Rules to warrant the taking of the view that in another market area the Market Committee of that area cannot levy fee on a fresh transaction of sale and purchase taking place in that area. Supposing the Wheat is purchased in market area X by a trader from a producer, fee will be chargeable under s.17(iii)(b)(2). If the same Wheat is taken to another market area say Y and another transaction of sale and purchase takes place there between a trader and a trader the market fee will be leviable under sub-clause (3). It is also not correct to say that the agricultural produce must have been produced in the market area in which the first levy is made. It might have been produced in another market area or even outside the State of Uttar Pradesh but if a transaction of sale and purchase takes place of an agricultural produce as defined in the Act and covered by the notification within a particular market area then fee can be charged in relation to the said transaction18. It would thus be seen that before 1973, reading the provisions of the Act and the Rules, market fee was to be charged at such rates as specified in the bye-laws of a particular Market Committee. But it could not exceed 1/2 percentum of the price of the agricultural produce. We were informed at the Bar that almost every Market Committee had levied fees @ 1/2%. The liability to pay the fee was of t he seller of the agricultural produce. Market fee was liable to be paid under Rule 68(2)(ii) even if the specified agricultural produce was sold directly by the seller to the consumer. This provision has been superseded now by an amendment in the Act brought about by U.P. Act 19 of 1979, whereby a proviso to the following effect has been added to section 17(iii)(b)It would be noticed that by the said amendment in clause (b) the minimum rate fixed was 1 percentum and the maximum 1-1/2 percentum and the liability to pay the fee became that of the purchaser instead of the seller as prescribed earlier by the Rules. Yet the Rules continued as they were. Nonetheless it is plain that after the amendment in the Statute, Rules could apply only mutatis mutandis and wherever there was a conflict between the Rules and the Statute the latter had to prevail20. In passing, reference may be made to the substitution of the words market area in place of the words "Principal Market Yard or the Sub-Market Yards" occurring in clause (b) by U.P. Act 6 of 1977 w.e.f. 20-12-1976. We have already adverted to this aspect of the matter and pointed out that transactions cannot take place in whole of the market area and although theortically fee is chargeable in the whole of the area now but actually the Rules and especially the Explanation to Rule 66 indicate that the transactions do take place in the Principal Market Yard or Market Yards or some specified place or places in a particular market area. Then came the amended section 17(iii)(b) of U.P. Act 7 of 1978, which had already been extracted above and it was made retrospective w.e.f. 12-6-1973. Under the present provision a liability to pay the fee is under four mutually exclusive clauses. The Rules which were framed in 1965 namely Rules 66 and 68 are so very different from the present provision of law that we had to express our distress in the beginning of this judgment for the failure of the Government to amend the Rules and bring it in conformity with the amended provisions of the Statute from time to time. Any way, the Rules will apply as far as possible so long they do not come in conflict with the Statute and even without the aid of the Rules the provision in section 17(iii)(b) as it stands after the amendment brought about by U.P. Act 7 of 1978 is workable and can be given effect to. The State legislature was competent to make retrospective amendment vide B. Banerjee v. Anita Pan and M/s. S. K.G. Sugar Ltd. v. State of Bihar and Ors. It has also been pointed out in H. H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious &Charitable Endowments, Myso re at pages 324-25 that retrospective imposition of a fee is valid. Of course, this cannot be a rule of universal application. In a given case and in a given situation the retrospective operation may be hit by Article 19. But in the present case we are inclined to take the view that the retrospectivity of the law as such is not bad and the only safeguard which we want to point out is this. If market fee has been realised by any Market Committee in respect of transactions of sale of agricultural produce taking place between 12-6-1973 and coming into force of U.P. Act 7 of 1978, in accordance with the law as it prevailed then, no market fee under the amended law can be realised again. But if in respect of any transactions aforesaid market fee has not yet been realised then it can be realised in accordance with the amended provision of the law. The only hardship will be to persons covered by sub-clauses (1) and (3) wherein a provision has been made to pass on the burden of fee to others. In the case of sub-clause (1) the commission agent can realise the market fee from the purchaser and the seller-trader under sub-clause (3) can realise it from the purchaser. If market fees are realised from such persons in accordance with the amended provision of the law then in turn they may be able to realise it from persons on whom they could pass on the burden. We are not disposed to hold the law bad only on that account21. We have already alluded to this aspect of the matter earlier in our judgment and taken the view that market fee could be levied on transactions of goods not produced within the limits of a particular market area by the Market Committee of that area even though the goods are produced outside the State of Uttar Pradesh or outside the market area of that particular Market Committee provided the transactions take place within the limits of that Market area. On the other hand we find no provision in the Act or the Rules to limit the operation of the law in a particular market area only in respect of the agricultural produce produced in that area24. In relation to the transactions of Ghee we had two types of dealers before us-(1) a dealer who purchases milk or cream from the villagers and others and manufactures Ghee in his plant and (2) a dealer who purchases such Ghee from the manufacturer of Ghee and sells it to another trader in the same market area. The first dealer will be liable to pay market fee because he is the producer of Ghee within the meaning of the Act and at the same time a trader in Ghee also. When he sells Ghee to another dealer in Ghee who is simply a dealer then under sub-clause (3) of section 17(iii)(b) the manufacturing dealer will be liable to pay market fee to the Market Committee on the transaction of Ghee. But he will be entitled to pass on the burden to his purchaser. Apropos the Market Committee, however, the liability will be of the manufacturing dealer. If milk, butter or cream would have been included in the notification then the charging of fee in relation to the first transaction of sale and purchase of such commodities would have been attracted in the light of the principle of law we have enunciated above with reference to paddy and rice. But in the case of Group D such commodities are not mentioned in the notificationWe would, therefore, like to clarify the position of law in this regard. If paddy is purchased in a particular market area by a rice miller and the same paddy is converted into rice and sold then the rice miller will be liable to pay market fee on his purchase of paddy from the agriculturist-producer under sub clause (2) of section 17(iii)(b). He cannot be asked to pay market fee over again under sub-clause (3) in relation to the transaction of rice. Nor will it be open to the Market Committee to choose between either of the two in the example just given. Market fee has to be levied and collected in relation to the transaction of paddy alone. Otherwise, there will be a risk of violation of Article 14 if it is left to the sweet-will of the Market Committee in the case of some rice millers to charge market fee on the transaction of paddy and in case of others to charge it when the sale of rice takes place. If, however, paddy is brought by the rice-miller from another market area, then the Market Committee of the area where paddy is converted into rice and sold will be entitled to charge market fee on the transaction of sale in accordance with sub-clause (3)25. An attempt was made on behalf of the Hides and Skins dealers to show that hides and skins cannot be an agricultural produce within the meaning of the Act. They are obtained from the carcass of an animal and not from a living animal. Argument stressed was t hat under group G in the Schedule appended to the Act Animal Husbandry Products only can come. Item 11 Hides and Skins, item 12 bones, item 13 meat etc. are not products of Animal Husbandry. Some authoritative books were cited before us on "Words and Phrases" to show the meaning of Animal, Husbandry and Animal Husbandry. Animal Husbandry means that branch of agriculture which is concerned with farm animals especially as regards breeding, care and production. We are not impressed by this argument. The definition clause (a) of section 2 uses the expression animal husbandry by way of a descriptive one without strictly confining to the products of animal husbandry as the addition of the words "specified in the schedule" indicates. In the schedule under the group husbandry products are mentioned all these items. We may also add that one may breed and rear animals in a farm for the purpose of obtaining hides and skins after they are butchered.Market fee is, therefore, leviable on the transactions of hides and skins as no market fee can be charged on transactions of sale and purchase of animals in a market area in the State of Uttar Pradesh, the same having not be en included in the notification. Had it been included in the notification, then no market fee could be charged in the same market area on hides and skins. It could only be charged in relation to the transaction of purchase and sale of animals26. For discussing this point we have to refer to group E of the notification dated 11-4-1978 which deals with forest products. The items mentioned in the said group are (1) Gum, (2) Wood, (3) Tendu leaves, (4) Catechu and (5) Lac. Market fee can be charged on purchase of wood by a trader from a producer. No fee can be charged on the sale of furniture manufactured by the purchaser of wood. It was also conceded on behalf of the Market Committees that market fee was not being charged on the sale of furniture. If it has been so charged it will be refunded. Furniture is not an item mentioned in the group of forest products. Therefore, this question does not present any difficulty at all. Difficulty cropped up in relation to the charging of market fee apropos the transaction of Catechu. According to the Market Committees Catechu is a product from timber or trees like Gum or Lac. It trickles down from the trees. On the other hand, according to the Catechu dealers by processing of Khar trees Catechu is produced. We leave this question of fact to be decided by the Market Committees concerned in the first instance and then by a court of law. If Catechu is a product of Khar trees by some processing as prima facie it appears to us to be so, then it is plain that market fee can be charged only on the purchase of Khar wood and not on the sale of Catechu27. This item presented some difficulty in solution. A licence is granted to a Paper Mill and to other kinds of dealers for cutting wood from the jungle and bringing it to their factories for manufacture of various articles such as paper etc. It was argued that there was no transaction of sale and purchase involved in the above operation. Moreover the wood is cut from the jungle area which although has been roped in the market area but no service is rendered in that jungle area by any Market Committee. In our opinion in the licence is involved sale of wood and a right t o go to that land to cut that wood. The wood may be used by the manufacturer for manufacturing furniture or may be used in the manufacture of paper or any other commodity. That is immaterial. The owner of the jungle wherefrom the wood is cut and brought will be a producer within the meaning of the Act and the licensee-producer of that wood would be a purchaser of an agricultural produce within the meaning of sub-clause (2) of section 17(iii)(b) of the Act liable to pay market fee. It matters little what use is made of the wood by him. The question of quid pro quo and service cannot be decided by a dichotomy of service to every payer of fee as held by this Court in Kewal Krishan Puris case. The matter has to be judged in a broad sense and not in the sense of rendering service to every individual payer of the fee28. This point also presented some difficulty. But on a parity of reasoning mentioned so far in connection with the other items, we have got to hold that such Kirana goods as are included in the notification brought from outside a particular market area or even from outside the State of Uttar Pradesh are chargeable to market fee when their sale takes place in a particular market area. In group A-VI Spices are mentioned including certain Kirana items such as Ripe Chillies, Sonf, turmeric etc. They are sold by the Kirana dealers. Sometimes they purchase them from the agriculturists in the same market area. In relation to those transactions they will be liable to pay market fee under sub-clause (2) of section 17(iii)(b). More often than not such articles are brought from outside and sold by the Kirana merchants. If they are sold to consumers, no market fee can be levied in view of the proviso added in the year 1979. If they are sold in wholesale, then the transaction can be subjected to the levy of market fee because in a particular market area they enter into the first transaction of sale in respect of the specified agricultural produce29. Market fee can be charged on transaction of tobacco as it is included in group A-V of the notification. As in the case of other items so in this case also the fee will be leviable if to bacco is purchased in the same market area from an agriculturist in accordance with sub-clause (2). Otherwise it would be leviable under sub-clause (3). Similar is the position in regard to tendu leaves which is mentioned in group E. Bidi cannot be treated as an agricultural produce as it is not an admixture of tobacco and tendu leaves within the meaning of section 2(a) of the Act. It was conceded on behalf of the Market Committees that no market fee was being charged on the transactions of Bidi. But if a Bidi manufacturer purchases tobacco and tendu leaves in the market area and uses them in the manufacture of Bidi, he will be liable to pay market fee in relation to the transaction of tobacco and tendu leaves30. This point has been stated merely to be rejected. There is no substance in this point. Our attention was drawn to some provisions in the municipal Acts and the Zila Parishad Acts to show that no market committee could be constituted in a municipal area or a Nyaya Panchayat. We do not consider it necessary to deal with this point in any detail. We merely reject it as being devoid of any substanceAccording to the case of some of the appellants who deal in these commodities they are the bye-products and market fee has already been charged on rab and therefore the fee cannot be charged again on rab galawat and rab salawat. Disputes of facts were raised in this connection before us on behalf of the Market Committees. On the materials placed before us it was clear to us that rab galawat and rab salawat cannot be subjected to a separate charge of market fee apart from the transaction of rab. Market fee can be levied on the first transaction of rab taking place in any market area in accordance with any of the sub-clauses of section 17 (iii) (b), as it may be applicable. It cannot be again charged on the second transaction of rab galawat or rab salawat even assuming that it is rab. But on the materials placed before us it appeared to us that rab galawat and rab salawat are not rab in the original form but they are obtained at one stage or the other in the process of manufacture of khandsari. Any way the question of fact may be decided as we have indicated in respect of the other items in the first instance by the Market Committee and thereafter by the High Court, if necessary, in a fresh writ petition. It will bear repetition to say that the only transaction which can be subjected to levy of market fee in a particular market area is the first transaction of rab and no other transaction of rab galawat and rab salawat32. This point urged on behalf of the appellants is well founded and must be accepted as correct. On the very wordings of clause (b) of section 17(iii) market fee is payable on transactions of sale of specified agricultural produce in the market area and if no transaction of sale takes place in a particular market area no fee can be charged by the Market Committee of that area33. If goods are merely brought in any market area and are despatched outside it without any transaction of sale taking place therein, then no market fee can be charged. If the bringing of the goods in a particular market area and their despatch therefrom are as a result of transactions of purchase and sale taking place outside the market area, it is plain that no fee can be levied34. This point has no substance and has got to be rejected. As held in Vishnu Agencies (Pvt.) Ltd. etc. v. Commercial Tax Officer &Ors. etc. on a review of earlier decisions even if a commodity is sold pursuant to the controlled regulations still some small area is left to make it a transaction of sale. It may well be that no freedom is left to the parties in a large area of the transaction yet it is a transaction of sale35. This point also must be rejected. A pure and simple producer as defined in clause (p) of section 2 is not required to take any licence for selling his agricultural produce nor is he required to pay market fee under any of the sub-clauses of section 17(iii)(b). But if he is a producer-trader in the sense we have explained above, then he will be required to take out a licence in accordance with s. 9(2) of the Act and no body can be permitted to carry on any trade in agricultural produce in the market area without a valid licence. Merely for his lapse of not taking out a licence he cannot escape the liability to pay the market fee. Market fee will still be chargeable from the trader, as, in s. 17(iii)(b) it is not stated that market fee can be charged only from the licensees. The proviso to clause (p) of s. 2 will be attracted only if a question arises as to whether any person is a producer or not for the purposes of the Act and in that event the decision of the Director made after an inquiry conducted in the manner prescribed by the rules shall be final. The proviso has nothing to do with a case of a producer-trader. If a question arises whether a person is merely a producer or producer-trader the Director will have no power to decide this question. Such a question will have to be decided by the Market Committee itself which will be subject to the final decision of a court of lawOn the other hand in section 17 (iii) (b) of the U.P. Act and Rules 66 and 68 of the Rules charging of market fee in terms is not found to be chargeable from the licensees only. The traders cannot escape their liability to pay the fee on account of their default of taking out licences37. This point is also well founded and must be accepted as correct. Market fee can be charged only on the transactions of purchase of wood and if a manufacturer of match-sticks purchases wood from the producer for the purposes of manufacturing the sticks he will be required to pay market fee on such purchase of wood only and not on the sale of match-stick s or match boxes. Similarly market fee will be leviable on the transaction of purchase of soyabin and not on transaction of sale of soyabin products. Exactly the same will be the position with regard to the articles sold by Kisan Products Ltd. and the sale of Pan. Agricultural produce purchased by the dealers will be chargeable to market fee and not the sale of the products after one kind of processing or the other38. Under this head the submission on behalf of the fruit and vegetable merchants was that they bring their products to the market and sell them in wholesale through their commission agents. No market fee, therefore, should be charged from them. In our opinion the argument so placed on behalf of the merchants is misconceived. Under sub-clause (1) of s. 17(iii)(b) of the Act when fruits and vegetables are sold through a commission agent by the producer then the Commission agent is liable to pay the market fee and he can realise it from the purchaser of fruits and vegetables. The burden does not fall on the producer. The liability in the first instance is of the commission, agent and finally of the purchaser of the articlesWe approve of the Patna view and in the set-up of the U.P. Act after an elaborate discussion we have pointed out as to in what kind of transaction who is liable to pay the market fee. In the U.P. Act even traders under certain circumstances have been made liable to pay such fees. Similarly the argument that market fee can be charged only on those transactions in which the seller is the producer of agricultural produce and not on any other transaction is also devoid of any substance. | 1 | 11,347 | 6,146 | ### Instruction:
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of this Court in Raunaq Ram Tara Chand &Ors. etc. v. The State of Punjab &Ors. But that case is distinguishable because of the language of rules 29 and 31 of the Punjab Agricultural Produce Market Rules framed in accordance with the Punjab Agricultural Produce Markets Act, 1961. Both the rules aforesaid clearly stated that the fee could be charged from the licensees only. Not only that even the charging section 23 of the Act itself stated:-"a Committee may, subject to such rules as may be made by the State Government in this behalf, levy on ad valorem basis fees on the agricultural produce brought or sold by licensees in the notified market area at a rate not exceeding rupee one fifty paise for every one hundred rupees, provided... " On the other hand in section 17 (iii) (b) of the U.P. Act and Rules 66 and 68 of the Rules charging of market fee in terms is not found to be chargeable from the licensees only. The traders cannot escape their liability to pay the fee on account of their default of taking out licences. Point No. 21 37. This point is also well founded and must be accepted as correct. Market fee can be charged only on the transactions of purchase of wood and if a manufacturer of match-sticks purchases wood from the producer for the purposes of manufacturing the sticks he will be required to pay market fee on such purchase of wood only and not on the sale of match-stick s or match boxes. Similarly market fee will be leviable on the transaction of purchase of soyabin and not on transaction of sale of soyabin products. Exactly the same will be the position with regard to the articles sold by Kisan Products Ltd. and the sale of Pan. Agricultural produce purchased by the dealers will be chargeable to market fee and not the sale of the products after one kind of processing or the other. Point No. 22 38. Under this head the submission on behalf of the fruit and vegetable merchants was that they bring their products to the market and sell them in wholesale through their commission agents. No market fee, therefore, should be charged from them. In our opinion the argument so placed on behalf of the merchants is misconceived. Under sub-clause (1) of s. 17(iii)(b) of the Act when fruits and vegetables are sold through a commission agent by the producer then the Commission agent is liable to pay the market fee and he can realise it from the purchaser of fruits and vegetables. The burden does not fall on the producer. The liability in the first instance is of the commission, agent and finally of the purchaser of the articles. Point No. 23 and 24 39. Reliance was placed upon a decision of the Mysore High Court (now Karnataka) in the case of K. N. Marudaradhya v. The Mysore State but the view taken by the Mysore High Court was dissented from by the Patna High Court in the case of Mangalchand Ramchandra and others etc. etc. v. State of Bihar. One of us (Untwalia J, ) delivering the judgment of the Patna High Court stated at page 1053 thus:"At this stage I would discuss a Bench decision of the Mysore High Court on which great reliance was pl aced on behalf of the petitioners in support of their contention that no fee can be levied on transaction of buying and selling between a dealer and a dealer even though such transactions take place within the market area or the market proper. The decision of the Mysore High Court is in the case of K. N. Marudaradhya v. The Mysore State A.I.R. 1970, Mysore 114. At page 126 (column 2) from paragraph 33 starts the discussion on the point at issue. To the extent the decision goes to hold that the purchase in respect of which the fee could be levied or collected is the earliest purchase, that is to say, the fee can be levied only on one purchase and not on subsequent purchases, with respect I am inclined to agree with that view expressed in paragraphs 33 to 38. But while discussing the point, Iyer J., has confined this earliest purchase of the agricultural produce belonging to the producer only. There does not seem to be a pointed discussion of the question whether the first purchase from a dealer could be subjected to levy or not. But by necessary implication, as I read the judgment, it seems, their Lordships of the Mysore High Court took the view that such a deal cannot be subjected to the levy of fee. With great respect, in that regard, I strike my note of dissent from the view expressed by the Mysore High Court. Firstly, merely because the object of the legislation is the protection of the agriculturist, the plain meaning of the section cannot be cut down. Secondly, they have relied upon the practice prevailing around the area under different State statutes as mentioned in paragraph 36. If I may say with respect, law could not be so decided on the basis of any practice. Of course, the interpretation given to the Statute can be supported by reference to practice. Thirdly, I am inclined to think that the Supreme Court decision in the case of Krishna Coconut Company does not lend support to the limited view expressed by the Mysore High Court." We approve of the Patna view and in the set-up of the U.P. Act after an elaborate discussion we have pointed out as to in what kind of transaction who is liable to pay the market fee. In the U.P. Act even traders under certain circumstances have been made liable to pay such fees. Similarly the argument that market fee can be charged only on those transactions in which the seller is the producer of agricultural produce and not on any other transaction is also devoid of any substance. Conclusions
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that rab galawat and rab salawat are not rab in the original form but they are obtained at one stage or the other in the process of manufacture of khandsari. Any way the question of fact may be decided as we have indicated in respect of the other items in the first instance by the Market Committee and thereafter by the High Court, if necessary, in a fresh writ petition. It will bear repetition to say that the only transaction which can be subjected to levy of market fee in a particular market area is the first transaction of rab and no other transaction of rab galawat and rab salawat32. This point urged on behalf of the appellants is well founded and must be accepted as correct. On the very wordings of clause (b) of section 17(iii) market fee is payable on transactions of sale of specified agricultural produce in the market area and if no transaction of sale takes place in a particular market area no fee can be charged by the Market Committee of that area33. If goods are merely brought in any market area and are despatched outside it without any transaction of sale taking place therein, then no market fee can be charged. If the bringing of the goods in a particular market area and their despatch therefrom are as a result of transactions of purchase and sale taking place outside the market area, it is plain that no fee can be levied34. This point has no substance and has got to be rejected. As held in Vishnu Agencies (Pvt.) Ltd. etc. v. Commercial Tax Officer &Ors. etc. on a review of earlier decisions even if a commodity is sold pursuant to the controlled regulations still some small area is left to make it a transaction of sale. It may well be that no freedom is left to the parties in a large area of the transaction yet it is a transaction of sale35. This point also must be rejected. A pure and simple producer as defined in clause (p) of section 2 is not required to take any licence for selling his agricultural produce nor is he required to pay market fee under any of the sub-clauses of section 17(iii)(b). But if he is a producer-trader in the sense we have explained above, then he will be required to take out a licence in accordance with s. 9(2) of the Act and no body can be permitted to carry on any trade in agricultural produce in the market area without a valid licence. Merely for his lapse of not taking out a licence he cannot escape the liability to pay the market fee. Market fee will still be chargeable from the trader, as, in s. 17(iii)(b) it is not stated that market fee can be charged only from the licensees. The proviso to clause (p) of s. 2 will be attracted only if a question arises as to whether any person is a producer or not for the purposes of the Act and in that event the decision of the Director made after an inquiry conducted in the manner prescribed by the rules shall be final. The proviso has nothing to do with a case of a producer-trader. If a question arises whether a person is merely a producer or producer-trader the Director will have no power to decide this question. Such a question will have to be decided by the Market Committee itself which will be subject to the final decision of a court of lawOn the other hand in section 17 (iii) (b) of the U.P. Act and Rules 66 and 68 of the Rules charging of market fee in terms is not found to be chargeable from the licensees only. The traders cannot escape their liability to pay the fee on account of their default of taking out licences37. This point is also well founded and must be accepted as correct. Market fee can be charged only on the transactions of purchase of wood and if a manufacturer of match-sticks purchases wood from the producer for the purposes of manufacturing the sticks he will be required to pay market fee on such purchase of wood only and not on the sale of match-stick s or match boxes. Similarly market fee will be leviable on the transaction of purchase of soyabin and not on transaction of sale of soyabin products. Exactly the same will be the position with regard to the articles sold by Kisan Products Ltd. and the sale of Pan. Agricultural produce purchased by the dealers will be chargeable to market fee and not the sale of the products after one kind of processing or the other38. Under this head the submission on behalf of the fruit and vegetable merchants was that they bring their products to the market and sell them in wholesale through their commission agents. No market fee, therefore, should be charged from them. In our opinion the argument so placed on behalf of the merchants is misconceived. Under sub-clause (1) of s. 17(iii)(b) of the Act when fruits and vegetables are sold through a commission agent by the producer then the Commission agent is liable to pay the market fee and he can realise it from the purchaser of fruits and vegetables. The burden does not fall on the producer. The liability in the first instance is of the commission, agent and finally of the purchaser of the articlesWe approve of the Patna view and in the set-up of the U.P. Act after an elaborate discussion we have pointed out as to in what kind of transaction who is liable to pay the market fee. In the U.P. Act even traders under certain circumstances have been made liable to pay such fees. Similarly the argument that market fee can be charged only on those transactions in which the seller is the producer of agricultural produce and not on any other transaction is also devoid of any substance.
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S. P. Jain Vs. Kalinga Tubes Ltd | only amount outstanding in that year was Rs. 9 lacs The slight delay in the payment of the full value of the shares cannot therefore in the circumstances be said to be so prejudicial to the interests of the Company as to call for any action under S. 398 of the Act. 33. As to the removal of Rs. 7 lacs from the coffers of the Company by the Longanathan and Patnaik groups, it does not appear from the application of the appellant that his complaint was that this sum was wrongfully removed by the two groups and there was any fraud with respect to its removal. The real complaint of the appellant in the connection appears to have been that he was entitled to one-third of this amount of Rs. 7 lacs under the agreement, and his share of this amount was not given to him. This appears from a letter written by the appellant to Patnaik on October 16, 1957 in which he asked that he should be paid his one-third share of this sum of Rs. 7 lacs with interest. It is not in dispute that the sum of Rs. 7 lacs was due from the Company to the Kalinga Industrial Development Corporation Limited and, therefore, the withdrawal of this amount from the Company by the Patnaik and Loganathan groups which controlled the Kalinga Industrial Development Corporation which was the managing agent of the Company before July 1954 cannot be said to amount to conducting the affairs of the Company prejudicially to its interests, whatever may be the rights of the appellant in the matter of getting one-third of this amount from the Loganathan and Patnaik groups. If he has any right under the agreement of July 27, 1954 in this matter he can enforce it in such way as may be open to him; but it cannot be said in the circumstance that this withdrawal from the Company was in any way prejudicial to the affairs of the Company, when it is clear that the Company owed the amount to the former managing agent. 34. The last point that has been urged in this connection is that the Company lost the support of the appellant in view of the action taken by the Patnaik and Loganathan groups in March and July 1958. Here again it is true that the appellant was dissatisfied with what had happened in March and July 1958 with regard to the allotment of shares worth Rs. 39 lacs and withdrew his support from the Company. If the Company was able to carry on without this support as it apparently was in 1958, it cannot be said that the action which resulted in the loss of the appellants support to the Company was necessarily prejudicial to it. It may be that the appellant was sore inasmuch as he must have felt that his assistance was taken when the Company was in need of such assistance; but later the Patnaik and Loganathan groups acted in the manner in which they did when they felt that the appellants support was no longer necessary to the Company. But if the appellants support was no longer necessary to the Company by 1958 the action of the Patnaik and Loganathan groups which resulted in the loss of such support cannot be said to be prejudicial to the interests of the Company. We, therefore, agree with the High Court that no case has been made out for action under S. 398 on the ground that the affairs of the Company were being conducted in a manner prejudicial to its interests. 35. Nor is there any ground for holding that because of the change which took place in the management after July 1958 it was likely that the affairs of the Company would be conducted in a manner prejudicial to its interets. The change that took place after July 1958 was that the appellant no longer remained the chairman of the Company and the Patnaik and Loganathan groups practically managed the Company without the appellant. But as the High Court has pointed out there were no facts before the Court to come to the conclusion that the change in management was likely to result in the affairs of the Company being conducted in a manner prejudicial to its interests. In this connection reliance is placed on certain matters which transpired after the application was filed in September 14, 1960. These matters however cannot be taken into account for the application as to be decided on the basis of the facts as they were when the application was made. Besides as the High Court has pointed out, it has not been shown that in view of certain actions taken by the new management without consulting the appellant, the Company was landed in any difficulty and loss of profit which would show mismanagement of its affairs. 36. Lastly it was stated in the application that accounts had not been shown to the appellant and his group and in consequence of this the appellant was not able to give full particulars of the several acts of fraud, misfeasance and other irregularities committed by the new management. But as the High Court has pointed out, the appellant asked for production of certain documents in April 1961 and those documents were made available for inspection by the appellant and were produced in Court. It was for the appellant to take inspection of those documents if he so desired and the appeal Court was right in pointing out that the learned Single Judge was not correct in drawing an adverse inference against the Company that it had disobeyed the orders of the Court and had not produced the documents called for and had given no opportunity to the appellant for their inspection. It seems to us that the appeal Court was right in the view and no case has been made out even prima facie for action under this part of S. 398 of the Act. | 0[ds]31. Reference then may be made to the proposed increase of shares for which a meeting was called on September 21, 1960 and which gave further cause to the appellant to move the application which he did on September 14, 1960. In that meeting it was proposed to increase the share capital by rupees two crores, one crore of which was to be in equity shares and the other crore in preference shares. It is said that this was part of the design to further reduce the share-holdings of the appellant in the Company so that he may be driven out of it, for after the issue of the new proposed capital the appellants holding of equity shares-would be hardly 10 per centum of the entire equity capital. In the first place, as the meeting of September 21, 1960 was never held because of the injunction obtained by the appellant, we cannot say how the new shares would have been issued and whether they would have been offered to the public for subscription to make the Company even more broad-based than it was then. If that was the intention that could hardly be called oppression of the appellant. Apart from that, we fail to see why the appellant should be driven out of the Company and should be compelled to sell his shares simply because his proportion of equity capital is only 10 per centum of the entire equity capital, for it is not in dispute that the Company is doing well and the appellant will get his dividends as any other share-holder. But if the appellant means that it is not worth his while to invest his money in a company in which he is unable to have an important-if not a controlling-voice, this shows that the real basis for the application in the present case was not the oppression of the appellant as a minority share- holder but the feeling that the appellant who hoped to get control of the Company had been thwarted by what took place in March and July, 1958. If that is the real position, then it cannot be said that the Loganathan and Patnaik groups acted with lack of probity or fair dealing in thwarting the desire of the appellant to get control of the Company; nor can such conduct be said to be oppressive of a minority share-holder. The case of the appellant based on the agreement of July 27, 1954 therefore, must fall and it must be held that even if that agreement was not carried out by the Company, which was not bound by it, there can be no case of oppression of the appellant32. We now come to the case under S. 398. It provides that any members of a company who have rights to apply in virtue of S. 399 may complain (i) that the affairs of the company are being conducted in a manner prejudicial to the interests of the company, or (ii) that a material change has taken place in the management or control of the company and that by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial to the interest of the company. On such application being made, if the Court is of opinion that the affairs of the company are being conducted as aforesaid on that by reason of any material change as aforesaid in the matter of management or control of a company, it is likely that the affairs of the company will be conducted as aforesaid, the Court may, with a view to bringing to an end or preventing the matters complained of or apprehended, make such order as it thinks fit. This Section only comes into play as the marginal note shows, when there is actual management or apprehension of mismanagement of the affairs of the company. It may be contrasted with S. 397 which deals with oppression in the minority share-holders, whether there is prejudice to the company or not. In the present case, the appellant relies on the following three circumstances to show that the affairs of the Company were being conducted in a manner prejudicial to its interests, namely-(i) that when the new shares worth Rs. 39 lacs were issued in July 1958 only a small part of the share-money was received in the beginning;(ii) that the Patnaik and Loganathan groups removed Rs. 7 lacs from the coffers of the company;(iii) that the Company lost the support of the appellantIt is true that when new shares of the value of Rs. 30 lacs were issued, the Company received only 15 per centum of the share money to begin with, namely, 5 per centum with the application and 10 per centum on allotment. But the evidence shows that though there was some delay in the receipt of 85 per centum of share money, shares Worth Rs. 30 lacs were fully paid up in the financial year 1959-60 and the only amount outstanding in that year was Rs. 9 lacs The slight delay in the payment of the full value of the shares cannot therefore in the circumstances be said to be so prejudicial to the interests of the Company as to call for any action under S. 398 of the Act33. As to the removal of Rs. 7 lacs from the coffers of the Company by the Longanathan and Patnaik groups, it does not appear from the application of the appellant that his complaint was that this sum was wrongfully removed by the two groups and there was any fraud with respect to its removal. The real complaint of the appellant in the connection appears to have been that he was entitled to one-third of this amount of Rs. 7 lacs under the agreement, and his share of this amount was not given to him. This appears from a letter written by the appellant to Patnaik on October 16, 1957 in which he asked that he should be paid his one-third share of this sum of Rs. 7 lacs with interest. It is not in dispute that the sum of Rs. 7 lacs was due from the Company to the Kalinga Industrial Development Corporation Limited and, therefore, the withdrawal of this amount from the Company by the Patnaik and Loganathan groups which controlled the Kalinga Industrial Development Corporation which was the managing agent of the Company before July 1954 cannot be said to amount to conducting the affairs of the Company prejudicially to its interests, whatever may be the rights of the appellant in the matter of getting one-third of this amount from the Loganathan and Patnaik groups. If he has any right under the agreement of July 27, 1954 in this matter he can enforce it in such way as may be open to him; but it cannot be said in the circumstance that this withdrawal from the Company was in any way prejudicial to the affairs of the Company, when it is clear that the Company owed the amount to the former managing agent34. The last point that has been urged in this connection is that the Company lost the support of the appellant in view of the action taken by the Patnaik and Loganathan groups in March and July 1958. Here again it is true that the appellant was dissatisfied with what had happened in March and July 1958 with regard to the allotment of shares worth Rs. 39 lacs and withdrew his support from the Company. If the Company was able to carry on without this support as it apparently was in 1958, it cannot be said that the action which resulted in the loss of the appellants support to the Company was necessarily prejudicial to it. It may be that the appellant was sore inasmuch as he must have felt that his assistance was taken when the Company was in need of such assistance; but later the Patnaik and Loganathan groups acted in the manner in which they did when they felt that the appellants support was no longer necessary to the Company. But if the appellants support was no longer necessary to the Company by 1958 the action of the Patnaik and Loganathan groups which resulted in the loss of such support cannot be said to be prejudicial to the interests of the Company. We, therefore, agree with the High Court that no case has been made out for action under S. 398 on the ground that the affairs of the Company were being conducted in a manner prejudicial to its interests35. Nor is there any ground for holding that because of the change which took place in the management after July 1958 it was likely that the affairs of the Company would be conducted in a manner prejudicial to its interets. The change that took place after July 1958 was that the appellant no longer remained the chairman of the Company and the Patnaik and Loganathan groups practically managed the Company without the appellant. But as the High Court has pointed out there were no facts before the Court to come to the conclusion that the change in management was likely to result in the affairs of the Company being conducted in a manner prejudicial to its interests. In this connection reliance is placed on certain matters which transpired after the application was filed in September 14, 1960. These matters however cannot be taken into account for the application as to be decided on the basis of the facts as they were when the application was made. Besides as the High Court has pointed out, it has not been shown that in view of certain actions taken by the new management without consulting the appellant, the Company was landed in any difficulty and loss of profit which would show mismanagement of its affairs36. Lastly it was stated in the application that accounts had not been shown to the appellant and his group and in consequence of this the appellant was not able to give full particulars of the several acts of fraud, misfeasance and other irregularities committed by the new management. But as the High Court has pointed out, the appellant asked for production of certain documents in April 1961 and those documents were made available for inspection by the appellant and were produced in Court. It was for the appellant to take inspection of those documents if he so desired and the appeal Court was right in pointing out that the learned Single Judge was not correct in drawing an adverse inference against the Company that it had disobeyed the orders of the Court and had not produced the documents called for and had given no opportunity to the appellant for their inspection. It seems to us that the appeal Court was right in the view and no case has been made out even prima facie for action under this part of S. 398 of the Act. | 0 | 13,424 | 1,953 | ### Instruction:
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only amount outstanding in that year was Rs. 9 lacs The slight delay in the payment of the full value of the shares cannot therefore in the circumstances be said to be so prejudicial to the interests of the Company as to call for any action under S. 398 of the Act. 33. As to the removal of Rs. 7 lacs from the coffers of the Company by the Longanathan and Patnaik groups, it does not appear from the application of the appellant that his complaint was that this sum was wrongfully removed by the two groups and there was any fraud with respect to its removal. The real complaint of the appellant in the connection appears to have been that he was entitled to one-third of this amount of Rs. 7 lacs under the agreement, and his share of this amount was not given to him. This appears from a letter written by the appellant to Patnaik on October 16, 1957 in which he asked that he should be paid his one-third share of this sum of Rs. 7 lacs with interest. It is not in dispute that the sum of Rs. 7 lacs was due from the Company to the Kalinga Industrial Development Corporation Limited and, therefore, the withdrawal of this amount from the Company by the Patnaik and Loganathan groups which controlled the Kalinga Industrial Development Corporation which was the managing agent of the Company before July 1954 cannot be said to amount to conducting the affairs of the Company prejudicially to its interests, whatever may be the rights of the appellant in the matter of getting one-third of this amount from the Loganathan and Patnaik groups. If he has any right under the agreement of July 27, 1954 in this matter he can enforce it in such way as may be open to him; but it cannot be said in the circumstance that this withdrawal from the Company was in any way prejudicial to the affairs of the Company, when it is clear that the Company owed the amount to the former managing agent. 34. The last point that has been urged in this connection is that the Company lost the support of the appellant in view of the action taken by the Patnaik and Loganathan groups in March and July 1958. Here again it is true that the appellant was dissatisfied with what had happened in March and July 1958 with regard to the allotment of shares worth Rs. 39 lacs and withdrew his support from the Company. If the Company was able to carry on without this support as it apparently was in 1958, it cannot be said that the action which resulted in the loss of the appellants support to the Company was necessarily prejudicial to it. It may be that the appellant was sore inasmuch as he must have felt that his assistance was taken when the Company was in need of such assistance; but later the Patnaik and Loganathan groups acted in the manner in which they did when they felt that the appellants support was no longer necessary to the Company. But if the appellants support was no longer necessary to the Company by 1958 the action of the Patnaik and Loganathan groups which resulted in the loss of such support cannot be said to be prejudicial to the interests of the Company. We, therefore, agree with the High Court that no case has been made out for action under S. 398 on the ground that the affairs of the Company were being conducted in a manner prejudicial to its interests. 35. Nor is there any ground for holding that because of the change which took place in the management after July 1958 it was likely that the affairs of the Company would be conducted in a manner prejudicial to its interets. The change that took place after July 1958 was that the appellant no longer remained the chairman of the Company and the Patnaik and Loganathan groups practically managed the Company without the appellant. But as the High Court has pointed out there were no facts before the Court to come to the conclusion that the change in management was likely to result in the affairs of the Company being conducted in a manner prejudicial to its interests. In this connection reliance is placed on certain matters which transpired after the application was filed in September 14, 1960. These matters however cannot be taken into account for the application as to be decided on the basis of the facts as they were when the application was made. Besides as the High Court has pointed out, it has not been shown that in view of certain actions taken by the new management without consulting the appellant, the Company was landed in any difficulty and loss of profit which would show mismanagement of its affairs. 36. Lastly it was stated in the application that accounts had not been shown to the appellant and his group and in consequence of this the appellant was not able to give full particulars of the several acts of fraud, misfeasance and other irregularities committed by the new management. But as the High Court has pointed out, the appellant asked for production of certain documents in April 1961 and those documents were made available for inspection by the appellant and were produced in Court. It was for the appellant to take inspection of those documents if he so desired and the appeal Court was right in pointing out that the learned Single Judge was not correct in drawing an adverse inference against the Company that it had disobeyed the orders of the Court and had not produced the documents called for and had given no opportunity to the appellant for their inspection. It seems to us that the appeal Court was right in the view and no case has been made out even prima facie for action under this part of S. 398 of the Act.
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year 1959-60 and the only amount outstanding in that year was Rs. 9 lacs The slight delay in the payment of the full value of the shares cannot therefore in the circumstances be said to be so prejudicial to the interests of the Company as to call for any action under S. 398 of the Act33. As to the removal of Rs. 7 lacs from the coffers of the Company by the Longanathan and Patnaik groups, it does not appear from the application of the appellant that his complaint was that this sum was wrongfully removed by the two groups and there was any fraud with respect to its removal. The real complaint of the appellant in the connection appears to have been that he was entitled to one-third of this amount of Rs. 7 lacs under the agreement, and his share of this amount was not given to him. This appears from a letter written by the appellant to Patnaik on October 16, 1957 in which he asked that he should be paid his one-third share of this sum of Rs. 7 lacs with interest. It is not in dispute that the sum of Rs. 7 lacs was due from the Company to the Kalinga Industrial Development Corporation Limited and, therefore, the withdrawal of this amount from the Company by the Patnaik and Loganathan groups which controlled the Kalinga Industrial Development Corporation which was the managing agent of the Company before July 1954 cannot be said to amount to conducting the affairs of the Company prejudicially to its interests, whatever may be the rights of the appellant in the matter of getting one-third of this amount from the Loganathan and Patnaik groups. If he has any right under the agreement of July 27, 1954 in this matter he can enforce it in such way as may be open to him; but it cannot be said in the circumstance that this withdrawal from the Company was in any way prejudicial to the affairs of the Company, when it is clear that the Company owed the amount to the former managing agent34. The last point that has been urged in this connection is that the Company lost the support of the appellant in view of the action taken by the Patnaik and Loganathan groups in March and July 1958. Here again it is true that the appellant was dissatisfied with what had happened in March and July 1958 with regard to the allotment of shares worth Rs. 39 lacs and withdrew his support from the Company. If the Company was able to carry on without this support as it apparently was in 1958, it cannot be said that the action which resulted in the loss of the appellants support to the Company was necessarily prejudicial to it. It may be that the appellant was sore inasmuch as he must have felt that his assistance was taken when the Company was in need of such assistance; but later the Patnaik and Loganathan groups acted in the manner in which they did when they felt that the appellants support was no longer necessary to the Company. But if the appellants support was no longer necessary to the Company by 1958 the action of the Patnaik and Loganathan groups which resulted in the loss of such support cannot be said to be prejudicial to the interests of the Company. We, therefore, agree with the High Court that no case has been made out for action under S. 398 on the ground that the affairs of the Company were being conducted in a manner prejudicial to its interests35. Nor is there any ground for holding that because of the change which took place in the management after July 1958 it was likely that the affairs of the Company would be conducted in a manner prejudicial to its interets. The change that took place after July 1958 was that the appellant no longer remained the chairman of the Company and the Patnaik and Loganathan groups practically managed the Company without the appellant. But as the High Court has pointed out there were no facts before the Court to come to the conclusion that the change in management was likely to result in the affairs of the Company being conducted in a manner prejudicial to its interests. In this connection reliance is placed on certain matters which transpired after the application was filed in September 14, 1960. These matters however cannot be taken into account for the application as to be decided on the basis of the facts as they were when the application was made. Besides as the High Court has pointed out, it has not been shown that in view of certain actions taken by the new management without consulting the appellant, the Company was landed in any difficulty and loss of profit which would show mismanagement of its affairs36. Lastly it was stated in the application that accounts had not been shown to the appellant and his group and in consequence of this the appellant was not able to give full particulars of the several acts of fraud, misfeasance and other irregularities committed by the new management. But as the High Court has pointed out, the appellant asked for production of certain documents in April 1961 and those documents were made available for inspection by the appellant and were produced in Court. It was for the appellant to take inspection of those documents if he so desired and the appeal Court was right in pointing out that the learned Single Judge was not correct in drawing an adverse inference against the Company that it had disobeyed the orders of the Court and had not produced the documents called for and had given no opportunity to the appellant for their inspection. It seems to us that the appeal Court was right in the view and no case has been made out even prima facie for action under this part of S. 398 of the Act.
|
P. K. Mohammad Private Limited, Cochin Vs. Esi Corporation | petitioner on the expression shop which appears in the notification issued under Section1(5) of the Act which is a beneficent legislation. The word "shop" has not been defined in the Act. A shop is no doubt an establishment (other than a factory) to which the Act can be extended under Section1 (5) of the Act provided other requirements are satisfied. In Collins English Dictionary the meaning of the word shop is given thus : "(1) a place esp. a small building for the retail sale of goods and services and (ii) a place for the performance of a specified type of work; workshop." It is obvious from the above meaning that a place where services are sold on retail basis is also a shop. It is not disputed that the petitioner has been making available on payment of the stipulated price the services of the members of the group of musicians employed by it on wages. We, therefore, hold that the place where the petitioner has been carrying business is a shop to which the Act is applicable by virtue of the notification referred to above. The first contention, therefore, fails." 21. Again, in M/s. International Ore & Fertilizers (India) Pvt. Ltd. v. Employees State Insurance Corporation (supra) the following useful observations are found (pp. 237-238) : "The word "shop" is not defined in the Act or in the notification issued by the State Government. According to the Shorter Oxford English Dictionary the expression "shop" means "a house or building where goods are made or prepared for sale and sold". It also means a "place of business" or "place where ones ordinary occupation is carried on". In ordinary parlance a "shop" is a place where the activities connected with the buying and selling of goods are carried on. The evidence produced in the case shows that the petitioner is carrying on its business at its business premises in Secunderabad. At that place the petitioner carries on the commercial activity facilitating the emergence of contracts of sale of goods between its foreign principals and the State Trading Corporation/Minerals and Metals Trading Corporation of India. It arranges for the unloading of the goods under its supervision and for the survey of the goods dispatched by its foreign principals at the ports on behalf of its foreign principals and on the goods being delivered to the Central Government it collects the price payable by the Government and remits it to its foreign principals. All these activities are directed and controlled from its premises at Secunderabad. It is thus clear that the activities carried on by the petitioner constitute trading activities although the goods imported from abroad are not actually brought to the said premises and delivered to the purchaser there. In our opinion it is not actually necessary that the delivery of the goods to the purchaser should take place at the premises in which the business of buying or selling is carried on to constitute the said premises into a "shop". The delivery of the goods sold to the purchaser is only one aspect of trading activities. Negotiation of the terms of sale, carrying on of the survey of the goods imported, arranging for the delivery of the goods sold, collection of the price of the goods sold etc. are all trading activities. The premises where business is carried on by the petitioner is undoubtedly a shop as the activities that are carried on there relate only to the sale of goods which are imported into India. The petitioner acts as the agent of its foreign principals who are the sellers. The petitioner directs and controls all the activities from the premises in question. If orders are received at a place which ultimately fructify into sales and the resulting trading activity is directed from there that place comes to be known as a "shop". In our view the Employees Insurance Court placed a very narrow interpretation on the expression "shop" while upholding the contention of the petitioner by confining "shop" to a place where goods are actually stored and delivered pursuant to a sale. We agree with the decision of the High Court that while construing a welfare legislation like the Act and the notification issued thereunder a liberal construction should be placed on their provisions so that the purpose of the legislation may be allowed to be achieved rather than frustrated or stultified. 22. In this case, the argument advanced on behalf of the appellant is slightly different, namely, other kinds of establishments which can easily fall within the definition of "shop" have been enumerated. Hence, a specific enumeration, so as to include the appellants business activity, is to be insisted upon. In our considered view, this argument cannot be accepted. First of all, merely because other establishments which are akin to shop are enumerated, it does not, in any manner, oblige us to give a narrow meaning to the word "shop" nor does it any way dilute the meaning of "shop". As rightly contended by the learned counsel for the respondent, the object is to envelop as many establishments as possible without leaving any room for doubt. That is precisely what the notification intends to do. 23. The appellant is carrying on stevedoring, clearing and forwarding operations. Clearing the documents, even it be in the custom house, is necessary for the export or import of goods. These services form part of the carriers job. It cannot be gainsaid that the appellant is rendering service to cater the needs of exporters and importers and others who want to carry the goods further. Therefore, it is a shop carrying on a systematic economic or a commercial activity. This would be enough to bring the appellant without specifically enumerating the specific activities carried on by the appellant. Merely because shop has been enumerated along with other similar establishments we do not think any further specific enumeration is necessary to cover the appellant. Thus we reject the contentions raised on behalf of the appellant. | 0[ds]n this case, the argument advanced on behalf of the appellant is slightly different, namely, other kinds of establishments which can easily fall within the definition of "shop" have been enumerated. Hence, a specific enumeration, so as to include the appellants business activity, is to be insisted upon.n our considered view, this argument cannot be accepted. First of all, merely because other establishments which are akin to shop are enumerated, it does not, in any manner, oblige us to give a narrow meaning to the word "shop" nor does it any way dilute the meaning of "shop". As rightly contended by the learned counsel for the respondent, the object is to envelop as many establishments as possible without leaving any room for doubt. That is precisely what the notification intends to do23. The appellant is carrying on stevedoring, clearing and forwarding operations. Clearing the documents, even it be in the custom house, is necessary for the export or import of goods. These services form part of the carriers job.t cannot be gainsaid that the appellant is rendering service to cater the needs of exporters and importers and others who want to carry the goods further. Therefore, it is a shop carrying on a systematic economic or a commercial activity. This would be enough to bring the appellant without specifically enumerating the specific activities carried on by the appellant. Merely because shop has been enumerated along with other similar establishments we do not think any further specific enumeration is necessary to cover the appellant. Thus we reject the contentions raised on behalf of the appellantThe learned counsel for the respondent has, in support of his stand, placed reliance on several decisions of this Court and the High Courts in which the notification in identical terms has been construed in the way as is suggested on behalf of the Corporation. Although Mr. Bobde, learned counsel for the appellant, has advanced an argument which on the face of it, appears to be attractive,Ithink that in view of the consistent interpretation of the notification which has been followed in the country, the question should not be reopened for fresh consideration. Accordingly,Iagree that all these appeals should be dismissed but without costs. | 0 | 3,619 | 419 | ### 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:
petitioner on the expression shop which appears in the notification issued under Section1(5) of the Act which is a beneficent legislation. The word "shop" has not been defined in the Act. A shop is no doubt an establishment (other than a factory) to which the Act can be extended under Section1 (5) of the Act provided other requirements are satisfied. In Collins English Dictionary the meaning of the word shop is given thus : "(1) a place esp. a small building for the retail sale of goods and services and (ii) a place for the performance of a specified type of work; workshop." It is obvious from the above meaning that a place where services are sold on retail basis is also a shop. It is not disputed that the petitioner has been making available on payment of the stipulated price the services of the members of the group of musicians employed by it on wages. We, therefore, hold that the place where the petitioner has been carrying business is a shop to which the Act is applicable by virtue of the notification referred to above. The first contention, therefore, fails." 21. Again, in M/s. International Ore & Fertilizers (India) Pvt. Ltd. v. Employees State Insurance Corporation (supra) the following useful observations are found (pp. 237-238) : "The word "shop" is not defined in the Act or in the notification issued by the State Government. According to the Shorter Oxford English Dictionary the expression "shop" means "a house or building where goods are made or prepared for sale and sold". It also means a "place of business" or "place where ones ordinary occupation is carried on". In ordinary parlance a "shop" is a place where the activities connected with the buying and selling of goods are carried on. The evidence produced in the case shows that the petitioner is carrying on its business at its business premises in Secunderabad. At that place the petitioner carries on the commercial activity facilitating the emergence of contracts of sale of goods between its foreign principals and the State Trading Corporation/Minerals and Metals Trading Corporation of India. It arranges for the unloading of the goods under its supervision and for the survey of the goods dispatched by its foreign principals at the ports on behalf of its foreign principals and on the goods being delivered to the Central Government it collects the price payable by the Government and remits it to its foreign principals. All these activities are directed and controlled from its premises at Secunderabad. It is thus clear that the activities carried on by the petitioner constitute trading activities although the goods imported from abroad are not actually brought to the said premises and delivered to the purchaser there. In our opinion it is not actually necessary that the delivery of the goods to the purchaser should take place at the premises in which the business of buying or selling is carried on to constitute the said premises into a "shop". The delivery of the goods sold to the purchaser is only one aspect of trading activities. Negotiation of the terms of sale, carrying on of the survey of the goods imported, arranging for the delivery of the goods sold, collection of the price of the goods sold etc. are all trading activities. The premises where business is carried on by the petitioner is undoubtedly a shop as the activities that are carried on there relate only to the sale of goods which are imported into India. The petitioner acts as the agent of its foreign principals who are the sellers. The petitioner directs and controls all the activities from the premises in question. If orders are received at a place which ultimately fructify into sales and the resulting trading activity is directed from there that place comes to be known as a "shop". In our view the Employees Insurance Court placed a very narrow interpretation on the expression "shop" while upholding the contention of the petitioner by confining "shop" to a place where goods are actually stored and delivered pursuant to a sale. We agree with the decision of the High Court that while construing a welfare legislation like the Act and the notification issued thereunder a liberal construction should be placed on their provisions so that the purpose of the legislation may be allowed to be achieved rather than frustrated or stultified. 22. In this case, the argument advanced on behalf of the appellant is slightly different, namely, other kinds of establishments which can easily fall within the definition of "shop" have been enumerated. Hence, a specific enumeration, so as to include the appellants business activity, is to be insisted upon. In our considered view, this argument cannot be accepted. First of all, merely because other establishments which are akin to shop are enumerated, it does not, in any manner, oblige us to give a narrow meaning to the word "shop" nor does it any way dilute the meaning of "shop". As rightly contended by the learned counsel for the respondent, the object is to envelop as many establishments as possible without leaving any room for doubt. That is precisely what the notification intends to do. 23. The appellant is carrying on stevedoring, clearing and forwarding operations. Clearing the documents, even it be in the custom house, is necessary for the export or import of goods. These services form part of the carriers job. It cannot be gainsaid that the appellant is rendering service to cater the needs of exporters and importers and others who want to carry the goods further. Therefore, it is a shop carrying on a systematic economic or a commercial activity. This would be enough to bring the appellant without specifically enumerating the specific activities carried on by the appellant. Merely because shop has been enumerated along with other similar establishments we do not think any further specific enumeration is necessary to cover the appellant. Thus we reject the contentions raised on behalf of the appellant.
### Response:
0
### Explanation:
n this case, the argument advanced on behalf of the appellant is slightly different, namely, other kinds of establishments which can easily fall within the definition of "shop" have been enumerated. Hence, a specific enumeration, so as to include the appellants business activity, is to be insisted upon.n our considered view, this argument cannot be accepted. First of all, merely because other establishments which are akin to shop are enumerated, it does not, in any manner, oblige us to give a narrow meaning to the word "shop" nor does it any way dilute the meaning of "shop". As rightly contended by the learned counsel for the respondent, the object is to envelop as many establishments as possible without leaving any room for doubt. That is precisely what the notification intends to do23. The appellant is carrying on stevedoring, clearing and forwarding operations. Clearing the documents, even it be in the custom house, is necessary for the export or import of goods. These services form part of the carriers job.t cannot be gainsaid that the appellant is rendering service to cater the needs of exporters and importers and others who want to carry the goods further. Therefore, it is a shop carrying on a systematic economic or a commercial activity. This would be enough to bring the appellant without specifically enumerating the specific activities carried on by the appellant. Merely because shop has been enumerated along with other similar establishments we do not think any further specific enumeration is necessary to cover the appellant. Thus we reject the contentions raised on behalf of the appellantThe learned counsel for the respondent has, in support of his stand, placed reliance on several decisions of this Court and the High Courts in which the notification in identical terms has been construed in the way as is suggested on behalf of the Corporation. Although Mr. Bobde, learned counsel for the appellant, has advanced an argument which on the face of it, appears to be attractive,Ithink that in view of the consistent interpretation of the notification which has been followed in the country, the question should not be reopened for fresh consideration. Accordingly,Iagree that all these appeals should be dismissed but without costs.
|
Ajay Mitra Vs. State Of M.P. | as follows: "Where the charge against the accused is under S. 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established". 17. In Hari Prasad Chamaria vs. Bishun Kumar Surekha and others. AIR 1974 SC 301 it was held that unless the complaint showed that the accused had dishonest or fraudulent intention at the time the complainant parted with the money it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract. In G.V. Rao vs. L.H.V. Prasad & Ors. 2000(3) SCC 693, it was reiterated that guilty intention is an essential ingredient of the offence of cheating and, therefore, to secure conviction mens rea on the part of the accused must be established. It has been further held that in order to constitute the offence of cheating the intention to deceive should be in existence at the time when the inducement was offered. 18. So far as the present appellants are concerned, they came into picture much later in July 1999, when various trademarks and brands of A-1 were purchased by A-6. The appellants were not at all in picture at the time when the complainant claims to have spent money in improvement of its bottling plant on the basis of the agreement executed with Cadbury Schweppes Beverages India Pvt. Ltd. (A-1). Since the appellants were not in picture at all at the time when the complainant alleges to have spent money in improving the bottling plant, neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No offence of cheating can, therefore, be said to have been committed by the appellants on account of the fact that a notice was given to the complainant that the bottling agreements will not be renewed any further after expiry of the initial term. Thus, even if the allegations made in the complaint are accepted to be absolutely true and correct, the appellants cannot be said to have committed any offence of cheating as provided in Section 420 IPC.19. The High Court has held that the Petitions filed by the appellants for quashing the complaint and the FIRs registered against them are pre-mature. The question which arises is that where the complaint or the FIR does not disclose commission of a cognizable offence, whether the same can be quashed at the initial stage? This question was examined by this Court in State of West Bengal & Ors. vs. Swapan Kumar Guha and others, AIR 1982 SC 949 and it was held that the First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot from the foundation or constitute the starting point of a lawful investigation. It is surely not within the province of the police to investigate into a Report (FIR) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases. It was further held that an investigation can be quashed if no cognizable offence is disclosed by the FIR. The same question has been considered in State of Haryana & others vs. Ch. Bhajan Lal & others, AIR 1992 SC 604 and after considering all the earlier decisions, the category of cases, in which the Court can exercise its extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 Cr.P.C. either to prevent abuse of the process of any Court or to secure the ends of justice, were sumarised in para 108 of the Report and sub-paras 1 to 3 thereof are being reproduced hereinbelow: "1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused". 20. As mentioned earlier, the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute any offence as against the appellants. Therefore, the complaint filed by the respondent and the FIRs registered in pursuance thereof are liable to be quashed. Trisuns Chemical Industry vs. Rajesh Agarwal & others (1999(8) SCC 686) cited by learned counsel for the complainant is clearly distinguishable as in the said case the allegation in the complaint was that the complainant had paid in advance a price higher than the market price for purchasing "toasted soyabean extracts" but the accused sent the commodity which was of most inferior and substandard quality due to which the complainant suffered a loss of Rs. 17 lakhs. In view of the allegations made in the complaint, the matter required investigation and the proceedings could not have been quashed on the ground that the dispute was of a civil nature. | 1[ds]18. So far as the present appellants are concerned, they came into picture much later in July 1999, when various trademarks and brands of A-1 were purchased by A-6. The appellants were not at all in picture at the time when the complainant claims to have spent money in improvement of its bottling plant on the basis of the agreement executed with Cadbury Schweppes Beverages India Pvt. Ltd. (A-1). Since the appellants were not in picture at all at the time when the complainant alleges to have spent money in improving the bottling plant, neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No offence of cheating can, therefore, be said to have been committed by the appellants on account of the fact that a notice was given to the complainant that the bottling agreements will not be renewed any further after expiry of the initial term. Thus, even if the allegations made in the complaint are accepted to be absolutely true and correct, the appellants cannot be said to have committed any offence of cheating as provided in Section 420 IPC.19. The High Court has held that the Petitions filed by the appellants for quashing the complaint and the FIRs registered against them are pre-mature.The question which arises is that where the complaint or the FIR does not disclose commission of a cognizable offence, whether the same can be quashed at the initialstage? This question was examined by this Court in State of West Bengal & Ors. vs. Swapan Kumar Guha and others, AIR 1982 SC 949 and it was held that the First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot from the foundation or constitute the starting point of a lawful investigation. It is surely not within the province of the police to investigate into a Report (FIR) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases. It was further held that an investigation can be quashed if no cognizable offence is disclosed by the FIR. The same question has been considered in State of Haryana & others vs. Ch. Bhajan Lal & others, AIR 1992 SC 604 and after considering all the earlier decisions, the category of cases, in which the Court can exercise its extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 Cr.P.C. either to prevent abuse of the process of any Court or to secure the ends of justice, were sumarised in para 108 of the Report and sub-paras 1 to 3 thereof are being reproducedWhere the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused".As mentioned earlier, the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute any offence as against the appellants. Therefore, the complaint filed by the respondent and the FIRs registered in pursuance thereof are liable to be quashed. Trisuns Chemical Industry vs. Rajesh Agarwal & others (1999(8) SCC 686) cited by learned counsel for the complainant is clearly distinguishable as in the said case the allegation in the complaint was that the complainant had paid in advance a price higher than the market price for purchasing "toasted soyabean extracts" but the accused sent the commodity which was of most inferior and substandard quality due to which the complainant suffered a loss of Rs. 17 lakhs. In view of the allegations made in the complaint, the matter required investigation and the proceedings could not have been quashed on the ground that the dispute was of a civil nature. | 1 | 4,039 | 816 | ### 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:
as follows: "Where the charge against the accused is under S. 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established". 17. In Hari Prasad Chamaria vs. Bishun Kumar Surekha and others. AIR 1974 SC 301 it was held that unless the complaint showed that the accused had dishonest or fraudulent intention at the time the complainant parted with the money it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract. In G.V. Rao vs. L.H.V. Prasad & Ors. 2000(3) SCC 693, it was reiterated that guilty intention is an essential ingredient of the offence of cheating and, therefore, to secure conviction mens rea on the part of the accused must be established. It has been further held that in order to constitute the offence of cheating the intention to deceive should be in existence at the time when the inducement was offered. 18. So far as the present appellants are concerned, they came into picture much later in July 1999, when various trademarks and brands of A-1 were purchased by A-6. The appellants were not at all in picture at the time when the complainant claims to have spent money in improvement of its bottling plant on the basis of the agreement executed with Cadbury Schweppes Beverages India Pvt. Ltd. (A-1). Since the appellants were not in picture at all at the time when the complainant alleges to have spent money in improving the bottling plant, neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No offence of cheating can, therefore, be said to have been committed by the appellants on account of the fact that a notice was given to the complainant that the bottling agreements will not be renewed any further after expiry of the initial term. Thus, even if the allegations made in the complaint are accepted to be absolutely true and correct, the appellants cannot be said to have committed any offence of cheating as provided in Section 420 IPC.19. The High Court has held that the Petitions filed by the appellants for quashing the complaint and the FIRs registered against them are pre-mature. The question which arises is that where the complaint or the FIR does not disclose commission of a cognizable offence, whether the same can be quashed at the initial stage? This question was examined by this Court in State of West Bengal & Ors. vs. Swapan Kumar Guha and others, AIR 1982 SC 949 and it was held that the First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot from the foundation or constitute the starting point of a lawful investigation. It is surely not within the province of the police to investigate into a Report (FIR) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases. It was further held that an investigation can be quashed if no cognizable offence is disclosed by the FIR. The same question has been considered in State of Haryana & others vs. Ch. Bhajan Lal & others, AIR 1992 SC 604 and after considering all the earlier decisions, the category of cases, in which the Court can exercise its extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 Cr.P.C. either to prevent abuse of the process of any Court or to secure the ends of justice, were sumarised in para 108 of the Report and sub-paras 1 to 3 thereof are being reproduced hereinbelow: "1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused". 20. As mentioned earlier, the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute any offence as against the appellants. Therefore, the complaint filed by the respondent and the FIRs registered in pursuance thereof are liable to be quashed. Trisuns Chemical Industry vs. Rajesh Agarwal & others (1999(8) SCC 686) cited by learned counsel for the complainant is clearly distinguishable as in the said case the allegation in the complaint was that the complainant had paid in advance a price higher than the market price for purchasing "toasted soyabean extracts" but the accused sent the commodity which was of most inferior and substandard quality due to which the complainant suffered a loss of Rs. 17 lakhs. In view of the allegations made in the complaint, the matter required investigation and the proceedings could not have been quashed on the ground that the dispute was of a civil nature.
### Response:
1
### Explanation:
18. So far as the present appellants are concerned, they came into picture much later in July 1999, when various trademarks and brands of A-1 were purchased by A-6. The appellants were not at all in picture at the time when the complainant claims to have spent money in improvement of its bottling plant on the basis of the agreement executed with Cadbury Schweppes Beverages India Pvt. Ltd. (A-1). Since the appellants were not in picture at all at the time when the complainant alleges to have spent money in improving the bottling plant, neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No offence of cheating can, therefore, be said to have been committed by the appellants on account of the fact that a notice was given to the complainant that the bottling agreements will not be renewed any further after expiry of the initial term. Thus, even if the allegations made in the complaint are accepted to be absolutely true and correct, the appellants cannot be said to have committed any offence of cheating as provided in Section 420 IPC.19. The High Court has held that the Petitions filed by the appellants for quashing the complaint and the FIRs registered against them are pre-mature.The question which arises is that where the complaint or the FIR does not disclose commission of a cognizable offence, whether the same can be quashed at the initialstage? This question was examined by this Court in State of West Bengal & Ors. vs. Swapan Kumar Guha and others, AIR 1982 SC 949 and it was held that the First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot from the foundation or constitute the starting point of a lawful investigation. It is surely not within the province of the police to investigate into a Report (FIR) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases. It was further held that an investigation can be quashed if no cognizable offence is disclosed by the FIR. The same question has been considered in State of Haryana & others vs. Ch. Bhajan Lal & others, AIR 1992 SC 604 and after considering all the earlier decisions, the category of cases, in which the Court can exercise its extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 Cr.P.C. either to prevent abuse of the process of any Court or to secure the ends of justice, were sumarised in para 108 of the Report and sub-paras 1 to 3 thereof are being reproducedWhere the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused".As mentioned earlier, the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute any offence as against the appellants. Therefore, the complaint filed by the respondent and the FIRs registered in pursuance thereof are liable to be quashed. Trisuns Chemical Industry vs. Rajesh Agarwal & others (1999(8) SCC 686) cited by learned counsel for the complainant is clearly distinguishable as in the said case the allegation in the complaint was that the complainant had paid in advance a price higher than the market price for purchasing "toasted soyabean extracts" but the accused sent the commodity which was of most inferior and substandard quality due to which the complainant suffered a loss of Rs. 17 lakhs. In view of the allegations made in the complaint, the matter required investigation and the proceedings could not have been quashed on the ground that the dispute was of a civil nature.
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Ram Autar Vs. State Of Up | had occurred in the fields earlier in the day, the sentence awarded by the High Court is unduly harsh and is liable to be appropriately scaled down in the attendant facts and circumstances.12. The learned counsel for the respondent, in refutation, has urged that it having been proved beyond all reasonable doubt by unimpeachable testimony of the eye witnesses, Gaya Prasad (PW-1), Sitaram (PW-2) and Ram Sajeewan @ Dhunna (PW-4) that the appellants and their co-accused Suraj Bali and Chandra Bali had formed an unlawful assembly and had with the intention of eliminating the deceased, had jointly launched a lethal attack by using, amongst others, a fire arm, the conviction recorded by the High Court, does not merit interference. According to him, having regard to the seriousness of the charges proved, the appellants have been let off lightly with the substantive sentence of ten years rigorous imprisonment.13. We have lent our due consideration to the materials on record as well as the competing assertions. Noticeably, the findings on the incident are concluded by concurrent deductions of the two courts below. This notwithstanding, we have examined in particular, the evidence of the eye witnesses Gaya Prasad (PW-1), Sitaram (PW-2) and Ram Sajeewan @ Dhunna (PW- 4) as well as that of the Dr. S.C. Srivastava (PW-5), who had performed the post-mortem examination on the dead body. 14. A close scrutiny of the evidence of the eye witnesses leaves no manner of doubt that not only they have with noteworthy consistency and cohesion authenticated the case of the prosecution in all material particulars, they have identified as well the appellants and their co- accused and also have provided graphic details of the events in the sequence in which the same unfolded at the place of occurrence. The testimony of the Dr. S.C. Srivastava (PW-5) reveals fire arm wounds on the head, chest and right upper arm of the deceased together with the multiple abrasions and contusions on various parts of the body. According to this witness, death had occurred due to shock and haemorrhage as a result of the ante-mortem injuries. 15. Noticeably this witness also referred to lacerated/incised wounds and contusions sustained by the appellants Deo Munni, Ram Autar and the co- accused Suraj Bali which, according to the medical expert, were however simple in nature. 16. Though an attempt had been made at the trial by the defence to shift the place of occurrence to fit in with their version, as offered in course of the statements under Section 313 Cr.P.C., and urged in course of the arguments, the evidence of the Investigating Officer Brahm Dev Singh (PW- 6), when considered along with the sketch map, Ex. A-12, the same stands belied. That the place of occurrence was, as cited by the prosecution is, also corroborated by the blood stained earth collected therefrom in course of the investigation. That the blood was human blood also stands proved by the report of the chemical analyst. These proved facts, in a way, demolish the defence version totally in all respects. 17. Though, at the trial as well as before the High Court, the prosecution case was sought to be discredited for the absence of explanation of the injuries suffered by some of the accused persons, in absence of any evidence forthcoming that at the relevant time, the deceased was armed or that the prosecution witnesses present did launch a counter attack, the courts below rightly dismissed this plea. The High Court, noticing the injuries, which the Dr. S.C. Srivastava had identified to be simple in nature, did conclude, had been self inflicted in order to contrive a defence. Bearing in mind the evidence available and the overall scenario, this finding, in our estimate, cannot be repudiated to be absurd or illogical. 18. In the ultimate analysis, however, one cannot overlook the progression of events that occurred since the incident of trespass of the cattle of the deceased in the fields of Suraj Bali and others leading to abuse and unpleasantness between them earlier in the day. The second bout of bickerings precipitated in the afternoon on the same day while the deceased, appellants and the co-accused were sitting in their respective compounds, abutting each other. The witnesses of the incident though, at the preliminary stages, did advise the deceased to go in and avoid a brewing confrontation, he obdurately refused to do so and stoked the growing indignation so much so that eventually he was shot at and also assaulted by the appellants and their companions. The materials on record do suggest that the deceased did also contribute to the escalating tension and in the process the accused persons jointly unleashed attack on him by lathis and also shot him. A sudden spurt of irreversible events thus got triggered thereby.19. In the fact situation that developed in quick succession, we are of the comprehension that there was as such no pre-meditation or prior concert on the part of the accused persons to commit murder of Lalni. The incident happened on the spur of the moment and in an uncontrollable, embittered and agitated state of enragement, thus depriving the accused persons of their power of self control. Though during the assaults, the accused persons were understandably aware of the likely results thereof, it is difficult to perceive that they had any common object of eliminating the deceased. This is more so as the evidence discloses that the accused-appellants, first informant as well as the deceased did descend from a common ancestor and that their grandfathers were real brothers. The evidence demonstrates that the accused- appellants do not have any infamous criminal background as well. The incident had occurred in the year 1982 and as on date, more than three decades have passed.20. On a consideration of the totality of the circumstances attendant on the case, we are of the opinion that the conviction of the appellants under Section 304-Part 1 read with Sections 147,148,149 IPC, as recorded by the High Court, is justified. | 1[ds]18. In the ultimate analysis, however, one cannot overlook the progression of events that occurred since the incident of trespass of the cattle of the deceased in the fields of Suraj Bali and others leading to abuse and unpleasantness between them earlier in the day. The second bout of bickerings precipitated in the afternoon on the same day while the deceased, appellants and the co-accused were sitting in their respective compounds, abutting each other. The witnesses of the incident though, at the preliminary stages, did advise the deceased to go in and avoid a brewing confrontation, he obdurately refused to do so and stoked the growing indignation so much so that eventually he was shot at and also assaulted by the appellants and their companions. The materials on record do suggest that the deceased did also contribute to the escalating tension and in the process the accused persons jointly unleashed attack on him by lathis and also shot him. A sudden spurt of irreversible events thus got triggered thereby.19. In the fact situation that developed in quick succession, we are of the comprehension that there was as such no pre-meditation or prior concert on the part of the accused persons to commit murder of Lalni. The incident happened on the spur of the moment and in an uncontrollable, embittered and agitated state of enragement, thus depriving the accused persons of their power of self control. Though during the assaults, the accused persons were understandably aware of the likely results thereof, it is difficult to perceive that they had any common object of eliminating the deceased. This is more so as the evidence discloses that the accused-appellants, first informant as well as the deceased did descend from a common ancestor and that their grandfathers were real brothers. The evidence demonstrates that the accused- appellants do not have any infamous criminal background as well. The incident had occurred in the year 1982 and as on date, more than three decades have passed.20. On a consideration of the totality of the circumstances attendant on the case, we are of the opinion that the conviction of the appellants under Section 304-Part 1 read with Sections 147,148,149 IPC, as recorded by the High Court, is justified. | 1 | 2,018 | 406 | ### 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:
had occurred in the fields earlier in the day, the sentence awarded by the High Court is unduly harsh and is liable to be appropriately scaled down in the attendant facts and circumstances.12. The learned counsel for the respondent, in refutation, has urged that it having been proved beyond all reasonable doubt by unimpeachable testimony of the eye witnesses, Gaya Prasad (PW-1), Sitaram (PW-2) and Ram Sajeewan @ Dhunna (PW-4) that the appellants and their co-accused Suraj Bali and Chandra Bali had formed an unlawful assembly and had with the intention of eliminating the deceased, had jointly launched a lethal attack by using, amongst others, a fire arm, the conviction recorded by the High Court, does not merit interference. According to him, having regard to the seriousness of the charges proved, the appellants have been let off lightly with the substantive sentence of ten years rigorous imprisonment.13. We have lent our due consideration to the materials on record as well as the competing assertions. Noticeably, the findings on the incident are concluded by concurrent deductions of the two courts below. This notwithstanding, we have examined in particular, the evidence of the eye witnesses Gaya Prasad (PW-1), Sitaram (PW-2) and Ram Sajeewan @ Dhunna (PW- 4) as well as that of the Dr. S.C. Srivastava (PW-5), who had performed the post-mortem examination on the dead body. 14. A close scrutiny of the evidence of the eye witnesses leaves no manner of doubt that not only they have with noteworthy consistency and cohesion authenticated the case of the prosecution in all material particulars, they have identified as well the appellants and their co- accused and also have provided graphic details of the events in the sequence in which the same unfolded at the place of occurrence. The testimony of the Dr. S.C. Srivastava (PW-5) reveals fire arm wounds on the head, chest and right upper arm of the deceased together with the multiple abrasions and contusions on various parts of the body. According to this witness, death had occurred due to shock and haemorrhage as a result of the ante-mortem injuries. 15. Noticeably this witness also referred to lacerated/incised wounds and contusions sustained by the appellants Deo Munni, Ram Autar and the co- accused Suraj Bali which, according to the medical expert, were however simple in nature. 16. Though an attempt had been made at the trial by the defence to shift the place of occurrence to fit in with their version, as offered in course of the statements under Section 313 Cr.P.C., and urged in course of the arguments, the evidence of the Investigating Officer Brahm Dev Singh (PW- 6), when considered along with the sketch map, Ex. A-12, the same stands belied. That the place of occurrence was, as cited by the prosecution is, also corroborated by the blood stained earth collected therefrom in course of the investigation. That the blood was human blood also stands proved by the report of the chemical analyst. These proved facts, in a way, demolish the defence version totally in all respects. 17. Though, at the trial as well as before the High Court, the prosecution case was sought to be discredited for the absence of explanation of the injuries suffered by some of the accused persons, in absence of any evidence forthcoming that at the relevant time, the deceased was armed or that the prosecution witnesses present did launch a counter attack, the courts below rightly dismissed this plea. The High Court, noticing the injuries, which the Dr. S.C. Srivastava had identified to be simple in nature, did conclude, had been self inflicted in order to contrive a defence. Bearing in mind the evidence available and the overall scenario, this finding, in our estimate, cannot be repudiated to be absurd or illogical. 18. In the ultimate analysis, however, one cannot overlook the progression of events that occurred since the incident of trespass of the cattle of the deceased in the fields of Suraj Bali and others leading to abuse and unpleasantness between them earlier in the day. The second bout of bickerings precipitated in the afternoon on the same day while the deceased, appellants and the co-accused were sitting in their respective compounds, abutting each other. The witnesses of the incident though, at the preliminary stages, did advise the deceased to go in and avoid a brewing confrontation, he obdurately refused to do so and stoked the growing indignation so much so that eventually he was shot at and also assaulted by the appellants and their companions. The materials on record do suggest that the deceased did also contribute to the escalating tension and in the process the accused persons jointly unleashed attack on him by lathis and also shot him. A sudden spurt of irreversible events thus got triggered thereby.19. In the fact situation that developed in quick succession, we are of the comprehension that there was as such no pre-meditation or prior concert on the part of the accused persons to commit murder of Lalni. The incident happened on the spur of the moment and in an uncontrollable, embittered and agitated state of enragement, thus depriving the accused persons of their power of self control. Though during the assaults, the accused persons were understandably aware of the likely results thereof, it is difficult to perceive that they had any common object of eliminating the deceased. This is more so as the evidence discloses that the accused-appellants, first informant as well as the deceased did descend from a common ancestor and that their grandfathers were real brothers. The evidence demonstrates that the accused- appellants do not have any infamous criminal background as well. The incident had occurred in the year 1982 and as on date, more than three decades have passed.20. On a consideration of the totality of the circumstances attendant on the case, we are of the opinion that the conviction of the appellants under Section 304-Part 1 read with Sections 147,148,149 IPC, as recorded by the High Court, is justified.
### Response:
1
### Explanation:
18. In the ultimate analysis, however, one cannot overlook the progression of events that occurred since the incident of trespass of the cattle of the deceased in the fields of Suraj Bali and others leading to abuse and unpleasantness between them earlier in the day. The second bout of bickerings precipitated in the afternoon on the same day while the deceased, appellants and the co-accused were sitting in their respective compounds, abutting each other. The witnesses of the incident though, at the preliminary stages, did advise the deceased to go in and avoid a brewing confrontation, he obdurately refused to do so and stoked the growing indignation so much so that eventually he was shot at and also assaulted by the appellants and their companions. The materials on record do suggest that the deceased did also contribute to the escalating tension and in the process the accused persons jointly unleashed attack on him by lathis and also shot him. A sudden spurt of irreversible events thus got triggered thereby.19. In the fact situation that developed in quick succession, we are of the comprehension that there was as such no pre-meditation or prior concert on the part of the accused persons to commit murder of Lalni. The incident happened on the spur of the moment and in an uncontrollable, embittered and agitated state of enragement, thus depriving the accused persons of their power of self control. Though during the assaults, the accused persons were understandably aware of the likely results thereof, it is difficult to perceive that they had any common object of eliminating the deceased. This is more so as the evidence discloses that the accused-appellants, first informant as well as the deceased did descend from a common ancestor and that their grandfathers were real brothers. The evidence demonstrates that the accused- appellants do not have any infamous criminal background as well. The incident had occurred in the year 1982 and as on date, more than three decades have passed.20. On a consideration of the totality of the circumstances attendant on the case, we are of the opinion that the conviction of the appellants under Section 304-Part 1 read with Sections 147,148,149 IPC, as recorded by the High Court, is justified.
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Commissioner of Sales Tax, U.P Vs. Bishamber Singh Layaq Ram | that of a pucca arhatiya and it is a misnomer to call it a kutcha arhatiya. It actually purchased the goods from the sellers, i.e., the cultivators, and then sold them in the market to the other buyers, as if they were its own, obviously at a profit. It paid to the cultivators the price of the goods it purchased and received from the buyers the price at which is sold. Selling of goods was not simultaneous with receiving them. These facts can lead to no other conclusion except that it bought and then sold goods and not merely brought buyers into contact with sellers and arranged transactions between them. In these circumstances, the High Court should have held the assessee to be a dealer under s. 2(c) of the Act, read with the Explanation thereto.There remains the question whether the High Court was justified in holding that there was no basis for making a best judgment assessment. The Addl. Judge (Revisions) had remanded the case for a reassessment on the basis of best judgment, on his finding that there was no material whatever on record to enable him to come to a conclusion one way or the other, on the disputed question of fact, i.e., whether the best judgment assessment of the taxable turnover at Rs. 3, 80, 000 could be sustained.16. Though the question of the applicability of s. 7(3) of the Act was not, in terms, referred to the High Court under s. 11(4), the Addl. Judge (Revisions ) in stating the case mentioned that the assessee had contended before him that his account books had been wrongly rejected.17. The statement of the case sets out the details of the various surveys made and the nature of the deficiencies found . The High Court treating the question referred to be a composite one, embarked upon an enquiry as to whether the Sales Tax Authorities were justified in rejecting the account books and in making the best judgment assessment under s. 7(3). I t has referred to the four surveys carried out on August 11, 1967, December 13, 1967, January 7, 1968 and March 8, 1968. In the first survey held on August 11, 1967 it was found that the Nagal Bahi had not been written for eleven days. The High Court observes that no adverse inference could be drawn on this account because the assessees explanation was that there were no cash transactions for this period, and, therefore, the Nagal Bahi had not been written. With regard to the second survey carried out on December 13, 1967 it was discovered that there was a loose parcha containing several entries. One of the entries of Rs. 371.17 in the name of Sakh Chand Udit Mohan alone was entered in the account books. That too on December 13, 1967 after inspection while the payment was actually made on December 11, 1967, i.e., it was not contemporaneous with the transaction. The High Court observes that it has not been found that any other entry contained in the loose parcha had not been entered in the account books, With regard to the third survey carried out on January 7, 1968 when twelve bags of wheat were found in stock, the stock register was not shown to the surveying officer. The High Court has again accepted the explanation of the assessee saying that there was no duty cast on the assessee to produce the stock register and it was not shown since there was no demand for it. It observes that there is nothing in s. 13 or in any other provisions of the Act or the rules framed thereunder which requires a dealer to produce his books of accounts and other documents, before the surveying officer. As regards the last survey held on March 8, 1968 the Mondhi Bahi was found to be posted upto February 29, 1968. Thus there were no entries for eight days. The explanation of the assessee was that it had not entered into any contract during the eight days in question. The High Court observes that as there was no material whatever for rejecting his explanation, no adverse inference could be drawn with regard to the veracity of the accounts, since Mondhi Bahi is not a necessary account book. We are not inclined to agree with this line of reasoning. While we refrain from expressing any opinion on the requirements of s. 13(2) of the Act, we are satisfied that the finding of the High Court that there was nothing wrong with the method of accounting adopted by the assessee cannot be upheld.18. In our opinion, the High Court should have declined to go into the question of the applicability of s. 7(3) of the Act. When a question of law was neither raised before the Addl. Judge (Revisions) nor considered by him nor did it arise on the findings given by him, it will not be a question arising out of his order.19. The question as to whether the Sales Tax officer was justified in making a best judgment assessment under s. 7(3) of the Act was not referred to the High Court. It was, therefore, not open to the High Court to go into the question. It could not allow the new point to be raised for the first time in reference. Nor was the High Court entitled on a reference under s. 11(4) of the Act to set aside the finding of the Addl. Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion. It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books should or should not be accepted. It may be that the Sales Tax Authorities should have accepted the explanation of the assessee with regard to the aforesaid deficiencies, but it may as well be that there are various other deficiencies which the assessee will have still to explain.20. | 1[ds]The finding arrived at by the High Court that the assessee as a kutcha arhatiya merely brought together the seller and the buyer charging an additional sum by way of commission and, therefore, could not be regarded as a dealer, i.e., a person engaged in the business of buying and selling goods, is contrary to the admitted facts of the case. The facts stated in the agreed statement of the case clearly show that the assessee is not a kutcha arhatiya, in the usual sense of the term, but his business brings into existence the relation of vendor andbasic distinction between a kutcha and a pucca arhatiya is that a kutcha arhatiya acts as an agent on behalf of his constituent and never acts as a principal to him. The person with whom he enters into a transaction on behalf of his constituent is either brought into contact with the constituent or at least the constituent is informed of the fact that the transaction has been entered into on his behalf with a particular person. But in the case of a pucca arhatiya, the agent makes himself liable upon the contract not only to third parties but also to his constituent. He does not inform his constituent as to the third party with whom he has entered into a contract on hisa pucca arhatiya acts as a principal as regards his constituent and not as a disinterested middleman who brings about two principals together, there being no privity of contract between the constituent and the third party, and may substitute his own goods towards the contract made for the principal and buy the principals goods on his personal account. On the other hand a kutcha arhatiya usually denotes a person who merely brings together the buyer and the seller charging his commission, who has no dominion or control over the goods, unlike a pucca arhatiya who deal s as a principal in relation to both his constituent and to the thirdis evident from the statement of the case that the business carried on by the assessee was more or less similar to that of a pucca arhatiya and it is a misnomer to call it a kutcha arhatiya. It actually purchased the goods from the sellers, i.e., the cultivators, and then sold them in the market to the other buyers, as if they were its own, obviously at a profit. It paid to the cultivators the price of the goods it purchased and received from the buyers the price at which is sold. Selling of goods was not simultaneous with receiving them. These facts can lead to no other conclusion except that it bought and then sold goods and not merely brought buyers into contact with sellers and arranged transactions between them. In these circumstances, the High Court should have held the assessee to be a dealer under s. 2(c) of the Act, read with the ExplanationHigh Court treating the question referred to be a composite one, embarked upon an enquiry as to whether the Sales Tax Authorities were justified in rejecting the account books and in making the best judgment assessment under s. 7(3). I t has referred to the four surveys carried out on August 11, 1967, December 13, 1967, January 7, 1968 and March 8, 1968. In the first survey held on August 11, 1967 it was found that the Nagal Bahi had not been written for eleven days. The High Court observes that no adverse inference could be drawn on this account because the assessees explanation was that there were no cash transactions for this period, and, therefore, the Nagal Bahi had not been written. With regard to the second survey carried out on December 13, 1967 it was discovered that there was a loose parcha containing several entries. One of the entries of Rs. 371.17 in the name of Sakh Chand Udit Mohan alone was entered in the account books. That too on December 13, 1967 after inspection while the payment was actually made on December 11, 1967, i.e., it was not contemporaneous with the transaction. The High Court observes that it has not been found that any other entry contained in the loose parcha had not been entered in the account books, With regard to the third survey carried out on January 7, 1968 when twelve bags of wheat were found in stock, the stock register was not shown to the surveying officer. The High Court has again accepted the explanation of the assessee saying that there was no duty cast on the assessee to produce the stock register and it was not shown since there was no demand for it. It observes that there is nothing in s. 13 or in any other provisions of the Act or the rules framed thereunder which requires a dealer to produce his books of accounts and other documents, before the surveying officer. As regards the last survey held on March 8, 1968 the Mondhi Bahi was found to be posted upto February 29, 1968. Thus there were no entries for eight days. The explanation of the assessee was that it had not entered into any contract during the eight days in question. The High Court observes that as there was no material whatever for rejecting his explanation, no adverse inference could be drawn with regard to the veracity of the accounts, since Mondhi Bahi is not a necessary account book. We are not inclined to agree with this line of reasoning. While we refrain from expressing any opinion on the requirements of s. 13(2) of the Act, we are satisfied that the finding of the High Court that there was nothing wrong with the method of accounting adopted by the assessee cannot ben our opinion, the High Court should have declined to go into the question of the applicability of s. 7(3) of the Act. When a question of law was neither raised before the Addl. Judge (Revisions) nor considered by him nor did it arise on the findings given by him, it will not be a question arising out of hisquestion as to whether the Sales Tax officer was justified in making a best judgment assessment under s. 7(3) of the Act was not referred to the High Court. It was, therefore, not open to the High Court to go into the question. It could not allow the new point to be raised for the first time in reference. Nor was the High Court entitled on a reference under s. 11(4) of the Act to set aside the finding of the Addl. Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion. It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books should or should not be accepted. It may be that the Sales Tax Authorities should have accepted the explanation of the assessee with regard to the aforesaid deficiencies, but it may as well be that there are various other deficiencies which the assessee will have still to explain. | 1 | 3,521 | 1,297 | ### 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:
that of a pucca arhatiya and it is a misnomer to call it a kutcha arhatiya. It actually purchased the goods from the sellers, i.e., the cultivators, and then sold them in the market to the other buyers, as if they were its own, obviously at a profit. It paid to the cultivators the price of the goods it purchased and received from the buyers the price at which is sold. Selling of goods was not simultaneous with receiving them. These facts can lead to no other conclusion except that it bought and then sold goods and not merely brought buyers into contact with sellers and arranged transactions between them. In these circumstances, the High Court should have held the assessee to be a dealer under s. 2(c) of the Act, read with the Explanation thereto.There remains the question whether the High Court was justified in holding that there was no basis for making a best judgment assessment. The Addl. Judge (Revisions) had remanded the case for a reassessment on the basis of best judgment, on his finding that there was no material whatever on record to enable him to come to a conclusion one way or the other, on the disputed question of fact, i.e., whether the best judgment assessment of the taxable turnover at Rs. 3, 80, 000 could be sustained.16. Though the question of the applicability of s. 7(3) of the Act was not, in terms, referred to the High Court under s. 11(4), the Addl. Judge (Revisions ) in stating the case mentioned that the assessee had contended before him that his account books had been wrongly rejected.17. The statement of the case sets out the details of the various surveys made and the nature of the deficiencies found . The High Court treating the question referred to be a composite one, embarked upon an enquiry as to whether the Sales Tax Authorities were justified in rejecting the account books and in making the best judgment assessment under s. 7(3). I t has referred to the four surveys carried out on August 11, 1967, December 13, 1967, January 7, 1968 and March 8, 1968. In the first survey held on August 11, 1967 it was found that the Nagal Bahi had not been written for eleven days. The High Court observes that no adverse inference could be drawn on this account because the assessees explanation was that there were no cash transactions for this period, and, therefore, the Nagal Bahi had not been written. With regard to the second survey carried out on December 13, 1967 it was discovered that there was a loose parcha containing several entries. One of the entries of Rs. 371.17 in the name of Sakh Chand Udit Mohan alone was entered in the account books. That too on December 13, 1967 after inspection while the payment was actually made on December 11, 1967, i.e., it was not contemporaneous with the transaction. The High Court observes that it has not been found that any other entry contained in the loose parcha had not been entered in the account books, With regard to the third survey carried out on January 7, 1968 when twelve bags of wheat were found in stock, the stock register was not shown to the surveying officer. The High Court has again accepted the explanation of the assessee saying that there was no duty cast on the assessee to produce the stock register and it was not shown since there was no demand for it. It observes that there is nothing in s. 13 or in any other provisions of the Act or the rules framed thereunder which requires a dealer to produce his books of accounts and other documents, before the surveying officer. As regards the last survey held on March 8, 1968 the Mondhi Bahi was found to be posted upto February 29, 1968. Thus there were no entries for eight days. The explanation of the assessee was that it had not entered into any contract during the eight days in question. The High Court observes that as there was no material whatever for rejecting his explanation, no adverse inference could be drawn with regard to the veracity of the accounts, since Mondhi Bahi is not a necessary account book. We are not inclined to agree with this line of reasoning. While we refrain from expressing any opinion on the requirements of s. 13(2) of the Act, we are satisfied that the finding of the High Court that there was nothing wrong with the method of accounting adopted by the assessee cannot be upheld.18. In our opinion, the High Court should have declined to go into the question of the applicability of s. 7(3) of the Act. When a question of law was neither raised before the Addl. Judge (Revisions) nor considered by him nor did it arise on the findings given by him, it will not be a question arising out of his order.19. The question as to whether the Sales Tax officer was justified in making a best judgment assessment under s. 7(3) of the Act was not referred to the High Court. It was, therefore, not open to the High Court to go into the question. It could not allow the new point to be raised for the first time in reference. Nor was the High Court entitled on a reference under s. 11(4) of the Act to set aside the finding of the Addl. Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion. It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books should or should not be accepted. It may be that the Sales Tax Authorities should have accepted the explanation of the assessee with regard to the aforesaid deficiencies, but it may as well be that there are various other deficiencies which the assessee will have still to explain.20.
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himself liable upon the contract not only to third parties but also to his constituent. He does not inform his constituent as to the third party with whom he has entered into a contract on hisa pucca arhatiya acts as a principal as regards his constituent and not as a disinterested middleman who brings about two principals together, there being no privity of contract between the constituent and the third party, and may substitute his own goods towards the contract made for the principal and buy the principals goods on his personal account. On the other hand a kutcha arhatiya usually denotes a person who merely brings together the buyer and the seller charging his commission, who has no dominion or control over the goods, unlike a pucca arhatiya who deal s as a principal in relation to both his constituent and to the thirdis evident from the statement of the case that the business carried on by the assessee was more or less similar to that of a pucca arhatiya and it is a misnomer to call it a kutcha arhatiya. It actually purchased the goods from the sellers, i.e., the cultivators, and then sold them in the market to the other buyers, as if they were its own, obviously at a profit. It paid to the cultivators the price of the goods it purchased and received from the buyers the price at which is sold. Selling of goods was not simultaneous with receiving them. These facts can lead to no other conclusion except that it bought and then sold goods and not merely brought buyers into contact with sellers and arranged transactions between them. In these circumstances, the High Court should have held the assessee to be a dealer under s. 2(c) of the Act, read with the ExplanationHigh Court treating the question referred to be a composite one, embarked upon an enquiry as to whether the Sales Tax Authorities were justified in rejecting the account books and in making the best judgment assessment under s. 7(3). I t has referred to the four surveys carried out on August 11, 1967, December 13, 1967, January 7, 1968 and March 8, 1968. In the first survey held on August 11, 1967 it was found that the Nagal Bahi had not been written for eleven days. The High Court observes that no adverse inference could be drawn on this account because the assessees explanation was that there were no cash transactions for this period, and, therefore, the Nagal Bahi had not been written. With regard to the second survey carried out on December 13, 1967 it was discovered that there was a loose parcha containing several entries. One of the entries of Rs. 371.17 in the name of Sakh Chand Udit Mohan alone was entered in the account books. That too on December 13, 1967 after inspection while the payment was actually made on December 11, 1967, i.e., it was not contemporaneous with the transaction. The High Court observes that it has not been found that any other entry contained in the loose parcha had not been entered in the account books, With regard to the third survey carried out on January 7, 1968 when twelve bags of wheat were found in stock, the stock register was not shown to the surveying officer. The High Court has again accepted the explanation of the assessee saying that there was no duty cast on the assessee to produce the stock register and it was not shown since there was no demand for it. It observes that there is nothing in s. 13 or in any other provisions of the Act or the rules framed thereunder which requires a dealer to produce his books of accounts and other documents, before the surveying officer. As regards the last survey held on March 8, 1968 the Mondhi Bahi was found to be posted upto February 29, 1968. Thus there were no entries for eight days. The explanation of the assessee was that it had not entered into any contract during the eight days in question. The High Court observes that as there was no material whatever for rejecting his explanation, no adverse inference could be drawn with regard to the veracity of the accounts, since Mondhi Bahi is not a necessary account book. We are not inclined to agree with this line of reasoning. While we refrain from expressing any opinion on the requirements of s. 13(2) of the Act, we are satisfied that the finding of the High Court that there was nothing wrong with the method of accounting adopted by the assessee cannot ben our opinion, the High Court should have declined to go into the question of the applicability of s. 7(3) of the Act. When a question of law was neither raised before the Addl. Judge (Revisions) nor considered by him nor did it arise on the findings given by him, it will not be a question arising out of hisquestion as to whether the Sales Tax officer was justified in making a best judgment assessment under s. 7(3) of the Act was not referred to the High Court. It was, therefore, not open to the High Court to go into the question. It could not allow the new point to be raised for the first time in reference. Nor was the High Court entitled on a reference under s. 11(4) of the Act to set aside the finding of the Addl. Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion. It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books should or should not be accepted. It may be that the Sales Tax Authorities should have accepted the explanation of the assessee with regard to the aforesaid deficiencies, but it may as well be that there are various other deficiencies which the assessee will have still to explain.
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Akhilesh Singh @ Akhileshwar Singh Vs. Lal Babu Singh & Others | as to whether the finding of the trial court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court while allowing the appeal. It was in the interest of justice that High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the defendants. The mere fact that no counter affidavit was filed to the I.A.s was not decisive. Since I.A.s having not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day, i.e. 08.03.2017 has allowed the I.A.s as well as the First Appeal. The fact that contesting respondents to the First Appeal, who are appellant before us were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal.14. A three-Judge Bench of this Court in Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah & Ors., (1976) 4 SCC 9 had occasion to consider Order LXI Rule 27 in context of admission of additional evidence by Appellate Court. This Court had observed that in event the High Court admits an additional evidence, an opportunity should have been given to the other party to rebut any inference arising from its existence by leading evidence. In Para 28 of the judgment, following has been laid down:-"28. The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the CPC which require that an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27 Order 41 of the CPC We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence."(emphasis supplied by us)15. To the same effect is another judgment of this Court in the case of Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) & Ors., (2010) 8 SCC 423. In this case also, the Court had occasion to consider Order LXI Rule 27, this Court has again laid down that when documents are taken in additional evidence, an opportunity ought to have been given to other party to lead evidence in rebuttal. In the above case also, the High Court simultaneously proceeded to decide the appeal alongwith admitting additional evidence on record. In Paragraphs 16 to 18 following has been laid down:-"16. The learned Single Judge rightly allowed the appellants plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27 . But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the respondent-defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.17. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41, Rule 27 . As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order 41, Rule 27 (b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondent-de15 fendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to the respondent-defendants to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so.18. The judgment and order dated 25-4-2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the originals of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the respondent- defendants to lead any rebuttal evidence or make a limited remand as provided under Order 41, Rule 28 ."16. The submission of the learned counsel for the respondents that execution of sale deeds was never denied by the present appellant before the High Court, hence no error has been committed by the High Court in relying on the contents in the sale deed cannot be accepted. Even if, execution of sale deeds was not denied, the Appellate Court before which any statement in sale deeds is relied ought to have given an opportunity to lead evidence in rebuttal or to explain the admission. Opportunity to explain the admission contained in the sale deeds was necessary to be given to the contesting party in the facts of the present case. We thus are of the opinion that the High Court erred in simultaneously proceeding with the hearing of the appeal after admitting additional evidence on record. The High Court ought to have given opportunity to contesting respondents in the First Appeal to lead evidence in rebuttal or to explain the alleged admission as contained in the sale deed, which having not been done, the order and judgment of the High Court deserves to be set aside. | 1[ds]The application dated 27.10.1997 having been rejected by the High Court, no further comment isAppellate Court admits the additional evidence under Order LXI Rule 27, we fail to see any reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence. In the present case, additional evidence, which were brought on the record were registered sale deeds, which were executed by present appellant and his otherand what was relied before the High Court was that the appellant admitted in the sale deeds that the partition has been taken place in the family. The main issue in the First Appeal before the High Court was as to whether the finding of the trial court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court while allowing the appeal. It was in the interest of justice that High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the defendants. The mere fact that no counter affidavit was filed to the I.A.s was not decisive. Since I.A.s having not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day, i.e. 08.03.2017 has allowed the I.A.s as well as the First Appeal. The fact that contesting respondents to the First Appeal, who are appellant before us were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal.The submission of the learned counsel for the respondents that execution of sale deeds was never denied by the present appellant before the High Court, hence no error has been committed by the High Court in relying on the contents in the sale deed cannot be accepted. Even if, execution of sale deeds was not denied, the Appellate Court before which any statement in sale deeds is relied ought to have given an opportunity to lead evidence in rebuttal or to explain the admission. Opportunity to explain the admission contained in the sale deeds was necessary to be given to the contesting party in the facts of the present case. We thus are of the opinion that the High Court erred in simultaneously proceeding with the hearing of the appeal after admitting additional evidence on record. The High Court ought to have given opportunity to contesting respondents in the First Appeal to lead evidence in rebuttal or to explain the alleged admission as contained in the sale deed, which having not been done, the order and judgment of the High Court deserves to be set aside. | 1 | 3,291 | 516 | ### 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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as to whether the finding of the trial court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court while allowing the appeal. It was in the interest of justice that High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the defendants. The mere fact that no counter affidavit was filed to the I.A.s was not decisive. Since I.A.s having not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day, i.e. 08.03.2017 has allowed the I.A.s as well as the First Appeal. The fact that contesting respondents to the First Appeal, who are appellant before us were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal.14. A three-Judge Bench of this Court in Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah & Ors., (1976) 4 SCC 9 had occasion to consider Order LXI Rule 27 in context of admission of additional evidence by Appellate Court. This Court had observed that in event the High Court admits an additional evidence, an opportunity should have been given to the other party to rebut any inference arising from its existence by leading evidence. In Para 28 of the judgment, following has been laid down:-"28. The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the CPC which require that an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27 Order 41 of the CPC We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence."(emphasis supplied by us)15. To the same effect is another judgment of this Court in the case of Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) & Ors., (2010) 8 SCC 423. In this case also, the Court had occasion to consider Order LXI Rule 27, this Court has again laid down that when documents are taken in additional evidence, an opportunity ought to have been given to other party to lead evidence in rebuttal. In the above case also, the High Court simultaneously proceeded to decide the appeal alongwith admitting additional evidence on record. In Paragraphs 16 to 18 following has been laid down:-"16. The learned Single Judge rightly allowed the appellants plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27 . But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the respondent-defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.17. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41, Rule 27 . As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order 41, Rule 27 (b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondent-de15 fendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to the respondent-defendants to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so.18. The judgment and order dated 25-4-2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the originals of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the respondent- defendants to lead any rebuttal evidence or make a limited remand as provided under Order 41, Rule 28 ."16. The submission of the learned counsel for the respondents that execution of sale deeds was never denied by the present appellant before the High Court, hence no error has been committed by the High Court in relying on the contents in the sale deed cannot be accepted. Even if, execution of sale deeds was not denied, the Appellate Court before which any statement in sale deeds is relied ought to have given an opportunity to lead evidence in rebuttal or to explain the admission. Opportunity to explain the admission contained in the sale deeds was necessary to be given to the contesting party in the facts of the present case. We thus are of the opinion that the High Court erred in simultaneously proceeding with the hearing of the appeal after admitting additional evidence on record. The High Court ought to have given opportunity to contesting respondents in the First Appeal to lead evidence in rebuttal or to explain the alleged admission as contained in the sale deed, which having not been done, the order and judgment of the High Court deserves to be set aside.
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The application dated 27.10.1997 having been rejected by the High Court, no further comment isAppellate Court admits the additional evidence under Order LXI Rule 27, we fail to see any reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence. In the present case, additional evidence, which were brought on the record were registered sale deeds, which were executed by present appellant and his otherand what was relied before the High Court was that the appellant admitted in the sale deeds that the partition has been taken place in the family. The main issue in the First Appeal before the High Court was as to whether the finding of the trial court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court while allowing the appeal. It was in the interest of justice that High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the defendants. The mere fact that no counter affidavit was filed to the I.A.s was not decisive. Since I.A.s having not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day, i.e. 08.03.2017 has allowed the I.A.s as well as the First Appeal. The fact that contesting respondents to the First Appeal, who are appellant before us were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal.The submission of the learned counsel for the respondents that execution of sale deeds was never denied by the present appellant before the High Court, hence no error has been committed by the High Court in relying on the contents in the sale deed cannot be accepted. Even if, execution of sale deeds was not denied, the Appellate Court before which any statement in sale deeds is relied ought to have given an opportunity to lead evidence in rebuttal or to explain the admission. Opportunity to explain the admission contained in the sale deeds was necessary to be given to the contesting party in the facts of the present case. We thus are of the opinion that the High Court erred in simultaneously proceeding with the hearing of the appeal after admitting additional evidence on record. The High Court ought to have given opportunity to contesting respondents in the First Appeal to lead evidence in rebuttal or to explain the alleged admission as contained in the sale deed, which having not been done, the order and judgment of the High Court deserves to be set aside.
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V.M. Salgaocar & Bros Vs. Board Of Trustees Of Port Of Mormugao | Section 34 prescribes time limit within which an application for setting aside of an award must be made and although the Court is given the power to extend the time on sufficient cause being shown, the said power to extend the time is restricted but a period of 30 days only and not thereafter. 37. It was then submitted by learned senior counsel for the appellant that whereas Section 120 of the Major Port Trusts Act prescribes a limitation for six months plus one month of statutory notice for suits filed against the Port Trust and its employees for anything done or purporting to have been done in pursuance of the Act, no limitation is prescribed for suits which are filed by the Port Trust under Section 131 of the same Act without without a rational basis. We do not find any merit in this submission. It is well settled that although limitation being intended for quieting title and in the sense looks at the problems from the point of view of the defendant with a view to provide him security against the stale claims, addresses itself at the same time also to the position of the plaintiff. The legislature in its wisdom can make separate provision within which a suit must be filed by the individual from that within which a suit can be filed by a statutory body. In Nav Ratanmal vs. State of Rajasthan (AIR 1961 Supreme Court 1704 a similar argument was raised and negatived by this Court. In that case the Court was examining as to whether there was a rational basis for treating the Government differently as regards period within which the suit could be filed by the Government on the one hand and the private individual on the other. It was held that there were sufficient grounds for differentiating between the claims of an individual and the claims of the Government and the actual period of limitation which should be allowed for filing the suit by any party was a matter of legislative policy and cannot be brought within the scope or purview under Article 14 or any other Article of the Constitution. It was observed:- "xxxx. It is with this background that the question of the special provision contained in Article 149 of the Act has to be viewed. First, we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued, Government being an impersonal body, before a claim is launched there has to be inter-departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as red-tape that there is delay in the functioning of Government offices." 38. With reference to the contention of Shri R.F. Nariman, learned senior counsel appearing for the appellant that there is no reasons for prescribing a shorter period of limitation for action against the Board while suits against the Government can be filed within normal period of limitation, it may be stated that the Government cannot be equated with statutory body like the Major Port Trust. The Government is a vast organisation having comparatively larger manpower and in the litigation against the Government subject matter of disputes is under several different acts, such as Excise Act, Customs Act, Income Tax Act, Railways Act, Land Acquisition Act etc. Many of these Acts also contain provisions similar to, if not identical with the provisions of Section 120 of the Major Port Trusts Act, 1963. Therefore, the contention between a major port and Government as a whole is totally fallacious. 39. A provision of the Act providing for a shorter period of limitation cannot be declared to be unconstitutional simply because in some of the Statutes a longer period of limitation has been prescribed for the redressal of the litigants grievances. The legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the legislature of determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those covered by the legislature and left out would not render the legislation of any law being discriminatory and violative of the fundamental rights guaranteed under Article 14 and 19(1)(g) of the Constitution. 40. In the end Mr. Nariman submitted that the Indian Ports Act, 1908 was still applicable to various ports including Panjim Port in Goa. In the case of exporters like the appellant using the port of Panjim, if the same controversy was to arise there being no provision such as Section 120 of the Major Port Trusts Act, 1963 in the Indian Ports Act, 1908 the period of limitation available to such exporters would be three years, that there was no intelligible differentia with the objects sought and achieved in proceeding such as the provision as Section 120. It may be stated that nowhere in the pleadings, is there an averment regarding the port of Panjim and in any case the very fact that the port of Panjim is not a major port and is not governed by the Major Port Trusts Act, 1963 and is not enjoined to perform duties which a major port is enjoined to perform is enough of an intelligible differentia which has a rational nexus with the objects sought to be achieved. | 0[ds]We do not think this view taken by the High Court can be sustained. In the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. If waiver were properly pleaded in the affidavit in reply, the appellant would have had an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated June 25, 1970 and establishing that on these facts there was no waiver by the appellant of its right to exemption under the assurance given by respondent 4. But in the absence of such pleading in the affidavit in reply, this opportunity was denied to the appellant. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plea should have been rejected in limine.In the present case, plea of waiver had neither been taken in the original plaint nor in the amended plaint which was amended subsequent to the passing of the decree on admission for the sum of Rs. 7,09,835/- nor even in the grounds of appeal before the High Court. Question of waiver is not a pure question of law which could be permitted to be raised by the appellant at any stage of the proceedings. The High Court was right in observing that the plea of limitation put up by the Board has to be examined on its own merit. We do not find any merit in the submission of the learned senior counsel appearing for the appellant that the suit having been partly decreed on admission, could not subsequently be dismissed on the ground of limitation for the remainingagree with the observations made by the Division Bench in the said case that merely because a statute not dealing with the limitation in general prescribed period of limitation different from the one in the Indian Limitation Act, 1963 it does not follow that the provisions prescribing the said period of limitation violates Article 14 or 19(1)(f) of the Constitution ofdo not find any merit in this submission. It is well settled that although limitation being intended for quieting title and in the sense looks at the problems from the point of view of the defendant with a view to provide him security against the stale claims, addresses itself at the same time also to the position of the plaintiff. The legislature in its wisdom can make separate provision within which a suit must be filed by the individual from that within which a suit can be filed by a statutory body. | 0 | 9,618 | 573 | ### Instruction:
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Section 34 prescribes time limit within which an application for setting aside of an award must be made and although the Court is given the power to extend the time on sufficient cause being shown, the said power to extend the time is restricted but a period of 30 days only and not thereafter. 37. It was then submitted by learned senior counsel for the appellant that whereas Section 120 of the Major Port Trusts Act prescribes a limitation for six months plus one month of statutory notice for suits filed against the Port Trust and its employees for anything done or purporting to have been done in pursuance of the Act, no limitation is prescribed for suits which are filed by the Port Trust under Section 131 of the same Act without without a rational basis. We do not find any merit in this submission. It is well settled that although limitation being intended for quieting title and in the sense looks at the problems from the point of view of the defendant with a view to provide him security against the stale claims, addresses itself at the same time also to the position of the plaintiff. The legislature in its wisdom can make separate provision within which a suit must be filed by the individual from that within which a suit can be filed by a statutory body. In Nav Ratanmal vs. State of Rajasthan (AIR 1961 Supreme Court 1704 a similar argument was raised and negatived by this Court. In that case the Court was examining as to whether there was a rational basis for treating the Government differently as regards period within which the suit could be filed by the Government on the one hand and the private individual on the other. It was held that there were sufficient grounds for differentiating between the claims of an individual and the claims of the Government and the actual period of limitation which should be allowed for filing the suit by any party was a matter of legislative policy and cannot be brought within the scope or purview under Article 14 or any other Article of the Constitution. It was observed:- "xxxx. It is with this background that the question of the special provision contained in Article 149 of the Act has to be viewed. First, we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued, Government being an impersonal body, before a claim is launched there has to be inter-departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as red-tape that there is delay in the functioning of Government offices." 38. With reference to the contention of Shri R.F. Nariman, learned senior counsel appearing for the appellant that there is no reasons for prescribing a shorter period of limitation for action against the Board while suits against the Government can be filed within normal period of limitation, it may be stated that the Government cannot be equated with statutory body like the Major Port Trust. The Government is a vast organisation having comparatively larger manpower and in the litigation against the Government subject matter of disputes is under several different acts, such as Excise Act, Customs Act, Income Tax Act, Railways Act, Land Acquisition Act etc. Many of these Acts also contain provisions similar to, if not identical with the provisions of Section 120 of the Major Port Trusts Act, 1963. Therefore, the contention between a major port and Government as a whole is totally fallacious. 39. A provision of the Act providing for a shorter period of limitation cannot be declared to be unconstitutional simply because in some of the Statutes a longer period of limitation has been prescribed for the redressal of the litigants grievances. The legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the legislature of determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those covered by the legislature and left out would not render the legislation of any law being discriminatory and violative of the fundamental rights guaranteed under Article 14 and 19(1)(g) of the Constitution. 40. In the end Mr. Nariman submitted that the Indian Ports Act, 1908 was still applicable to various ports including Panjim Port in Goa. In the case of exporters like the appellant using the port of Panjim, if the same controversy was to arise there being no provision such as Section 120 of the Major Port Trusts Act, 1963 in the Indian Ports Act, 1908 the period of limitation available to such exporters would be three years, that there was no intelligible differentia with the objects sought and achieved in proceeding such as the provision as Section 120. It may be stated that nowhere in the pleadings, is there an averment regarding the port of Panjim and in any case the very fact that the port of Panjim is not a major port and is not governed by the Major Port Trusts Act, 1963 and is not enjoined to perform duties which a major port is enjoined to perform is enough of an intelligible differentia which has a rational nexus with the objects sought to be achieved.
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We do not think this view taken by the High Court can be sustained. In the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. If waiver were properly pleaded in the affidavit in reply, the appellant would have had an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated June 25, 1970 and establishing that on these facts there was no waiver by the appellant of its right to exemption under the assurance given by respondent 4. But in the absence of such pleading in the affidavit in reply, this opportunity was denied to the appellant. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plea should have been rejected in limine.In the present case, plea of waiver had neither been taken in the original plaint nor in the amended plaint which was amended subsequent to the passing of the decree on admission for the sum of Rs. 7,09,835/- nor even in the grounds of appeal before the High Court. Question of waiver is not a pure question of law which could be permitted to be raised by the appellant at any stage of the proceedings. The High Court was right in observing that the plea of limitation put up by the Board has to be examined on its own merit. We do not find any merit in the submission of the learned senior counsel appearing for the appellant that the suit having been partly decreed on admission, could not subsequently be dismissed on the ground of limitation for the remainingagree with the observations made by the Division Bench in the said case that merely because a statute not dealing with the limitation in general prescribed period of limitation different from the one in the Indian Limitation Act, 1963 it does not follow that the provisions prescribing the said period of limitation violates Article 14 or 19(1)(f) of the Constitution ofdo not find any merit in this submission. It is well settled that although limitation being intended for quieting title and in the sense looks at the problems from the point of view of the defendant with a view to provide him security against the stale claims, addresses itself at the same time also to the position of the plaintiff. The legislature in its wisdom can make separate provision within which a suit must be filed by the individual from that within which a suit can be filed by a statutory body.
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Commissioner Of Excess Profits Tax,Bombay City Vs. Sri Lakshmi Silk Mills Ltd | not. The suggestion was that freehold land is in the same position, and if you carry on business on part of it whatever you do with the rest by way of licensing or letting cannot be regarded as producing income from investment. That, however, is dead in the teeth of the judgment in the Inland Revenue Commrs. v. Broadway Car Co. Ltd.,(1946) 2 All E. R. 609. The same argument was tried there, but Tucker L. J. said he thought the Desoutters case,(1946) 1 All E. R. 58, had very little to do with it, as there was a great difference between land and a patent, and he did not think the Desoutters case,(1946) 1 All E. R. 58, threw any light on the matter......A patent is quite different from freehold land."13. These observations appositely apply to the case of a company incorporated for the purpose of doing business and earning profit by the process of manufacture. Letting out a part of its machinery in a certain situation in order to make the business advantageous as a whole does not alter the nature of the income. The case of an owner of land letting out his land and carrying on exploitation of part of that land by selling gravel out of it, as at present advised in our opinion, would fall under S. 9, Indian Income-tax Act, as income earned, no matter by whatever method from land, and specifically dealt with by that section. The observations, therefore, made in Iless case, (1947)1 ALL E. R. 798 can have no apposite application to the case of a manufacturing concern letting out a part of its machinery temporarily which it cannot advantageously use itself.14. Mr. Chatterjee also laid stress an the decision of the Court of Appeal inInland Revenue Commrs. v. Broadway Car Co. Ltd.,(1948)2 ALL E. R. 609. In this case the company carried on the business of motor car agents and repairers on land held on lease from 1935 to 1956 at an annual rent of ? 750. By 1940 the companys business had dwindled under war conditions to such on extent that no more than one third of the land was required. In those circumstances the remainder was sublet for fourteen years at an annual rent of ?1,150. The general commissioners at income tax decided that the difference of ?400 between the outgoing of ?750 for the land retained and the incoming of ?1,150 for the land disposed of was "income received from an investment, and the business not being one within the special categories mentioned in the Finance Act, 1939, that ?400 was not taxable. It was held that the word "investment" must be construed in the ordinary, popular sense of the ward as used by business men and not as a term of art having a defined or technical meaning and that it was impossible to say that the commissioners had erred in law in coming to the conclusion that the transaction resulted in an investment. Scott L. J. in delivering his judgment laid emphasis on the point that after the business of the company had dwindled, it partitioned part of the land from the rest and sublet it by installing a heating apparatus for the sub lessee. It was found that war conditions had reduced the companys business to very small proportions and they cut their loss by going out of business in respect of the major part of their land and put it out of their power for 14 years to resume business there. In this situation it was observed that in that case they were dealing with part of the property of the company which had become redundant and was sublet purely to produce income, - a transaction quite apart from the ordinary business activities of the company. It was pointed out that the question whether a particular source of income was income or not must be decided, as it could be according to ordinary commonsense principles.15. The short question to decide in this case is whether on the facts found, it could be said reasonably that the dyeing plant had become redundant for its business as a silk manufacturing concern, simply by the circumstance that for the time being it could not be used by it personally for the purpose of dyeing silk yarn owing to the non availability of yarn. It is difficult to conceive that the company would not have immediately started dyeing yarn as soon as it became available. Instead of dyeing yarn, another person was allowed to dye jute (we are told), the assessee company making income out of its use as a commercial asset. In this situation it is not possible to hold that the income thus earned was not a part of the income of the business and was not earned for the business by its commercial asset or that this commercial asset had become redundant to the companys business of manufacture of silk. The analogy of Broadway Car Co. Ltd.,(1946) 2 ALL E. R. 609, therefore, does not hold good for the decision of the present matter.16. We are, therefore, of the opinion that it was a part of the normal activities of the assessees business to earn money by making use of its machinery by either employing it in its own manufacturing concern or temporarily letting it to others for making profit for that business when for the time being it could not itself run it. The High Court, therefore, was in error in holding that the dyeing plant had ceased to be a commercial asset of the assessee and the income earned by it and received from the lessee Messrs Parakh and Co. was not chargeable to excess profits tax. The result, therefore, is that we hold that the answer returned by the High Court to the question referred to it by the Tribunal was wrong and that the correct answer to the question would be in the affirmative and not in the negative.17. | 1[ds]8. In our opinion, the contention raised by the learned Attorney General is sound. The High Court was in error in engrafting a proviso on the rule deduced by it from the authorities considered by it, to the effect that a commercial asset of a business concern which yields income must at the time it was let out be in a condition to be used as commercial asset by the assessee himself. We respectfully concur in the opinion of the learned Chief Justice that if the commercial asset is not capable of being used as such, then its being let out to others does not result in an income which is the income of the business, but we cannot accept the view that an asset which was acquired and used for the purpose of the business ceased to be a commercial asset of that business as soon as it was temporarily put out of use or let out to another person for use in his business or trade. The yield of income by a commercial asset is the profit of the business irrespective of the manner in which that asset is exploited by the owner of the business. He is entitled to exploit it to his best advantage and he may do so either by using it himself personally or by letting it out to somebody else. Suppose, for instance, in a manufacturing concern the use of its plant and machinery can advantageously be made owing to paucity of raw materials only for six hours in a working day, and in order to get the best yield out of it, another person who has got there requisite raw materials is allowed to use it as a licensee on payment of certain consideration for three hours; can it be said in such a situation with any justification that the amount realized from the licensee is not a part of the business income of the licensor. In this case the company was incorporated purely as a manufacturing concern with the objects of making profit. It installed plant and machinery for the purpose of its business, and it was open to it if at any time it found that any part of its play "for the time being" could not be advantageously employed for earning profit by the company itself, to earn profit by leasing it to somebody else. It is difficult to hold that the income thus earned by the commercial asset is not income from the business of the company that has been solely incorporated for the purpose of doing business and earning profits. There is no material whatever for taking the view that the assessee company was incorporated with any other object than of carrying on business or trade. Owning properties and letting them was not a purpose for which it was formed and that being so, the disputed income cannot be said to fall under any section of the Indian Income-tax Act other thanhowever, are in respectful agreement with the observations of Lord President Strathclyde in Sutherlandv. The Commissioners of Inland Revenue,(1928) 12 Tax. Cas63, that a commercial asset susceptible of being put to a variety of different uses in which gain might be acquired, and whichever of these uses it was put to by the appellant, the profit earned was a user of the asset of the same business. A mere substituted use of the commercial asset does not change or alter the nature of that asset. What ever the commercial asset produces is income of the business of which it is an asset, the process by which the asset makes the income beingargument, in our opinion, though attractive, is fallacious. The analogy between the case of land and of a dyeing plant for the purpose of taxing statutes is inappropriate. The distinction becomes apparent from the following passage which occurs in Tucker L. J. S judgment inIless case,(1947) 1 ALL E. R. 798it was suggested by counsel for the Crown that the case was like the InlandRevenue Commrs. v. Desoutter Bros. Ltd.,(1946) 1 All E. R.58, where it was held that if you make use of a patent in your business and also receive royalties from the use of the patent by others licensed to use it, those royalties cannot be regarded as receipts from an investment. In other words, the door has to be either open or shut. A patent is either an investment or it is not. The suggestion was that freehold land is in the same position, and if you carry on business on part of it whatever you do with the rest by way of licensing or letting cannot be regarded as producing income from investment. That, however, is dead in the teeth of the judgment in the InlandRevenue Commrs. v. Broadway Car Co. Ltd.,(1946) 2 All E. R.We are, therefore, of the opinion that it was a part of the normal activities of the assessees business to earn money by making use of its machinery by either employing it in its own manufacturing concern or temporarily letting it to others for making profit for that business when for the time being it could not itself run it. The High Court, therefore, was in error in holding that the dyeing plant had ceased to be a commercial asset of the assessee and the income earned by it and received from the lessee Messrs Parakh and Co. was not chargeable to excess profits tax. The result, therefore, is that we hold that the answer returned by the High Court to the question referred to it by the Tribunal was wrong and that the correct answer to the question would be in the affirmative and not in the negative. | 1 | 3,685 | 1,039 | ### Instruction:
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not. The suggestion was that freehold land is in the same position, and if you carry on business on part of it whatever you do with the rest by way of licensing or letting cannot be regarded as producing income from investment. That, however, is dead in the teeth of the judgment in the Inland Revenue Commrs. v. Broadway Car Co. Ltd.,(1946) 2 All E. R. 609. The same argument was tried there, but Tucker L. J. said he thought the Desoutters case,(1946) 1 All E. R. 58, had very little to do with it, as there was a great difference between land and a patent, and he did not think the Desoutters case,(1946) 1 All E. R. 58, threw any light on the matter......A patent is quite different from freehold land."13. These observations appositely apply to the case of a company incorporated for the purpose of doing business and earning profit by the process of manufacture. Letting out a part of its machinery in a certain situation in order to make the business advantageous as a whole does not alter the nature of the income. The case of an owner of land letting out his land and carrying on exploitation of part of that land by selling gravel out of it, as at present advised in our opinion, would fall under S. 9, Indian Income-tax Act, as income earned, no matter by whatever method from land, and specifically dealt with by that section. The observations, therefore, made in Iless case, (1947)1 ALL E. R. 798 can have no apposite application to the case of a manufacturing concern letting out a part of its machinery temporarily which it cannot advantageously use itself.14. Mr. Chatterjee also laid stress an the decision of the Court of Appeal inInland Revenue Commrs. v. Broadway Car Co. Ltd.,(1948)2 ALL E. R. 609. In this case the company carried on the business of motor car agents and repairers on land held on lease from 1935 to 1956 at an annual rent of ? 750. By 1940 the companys business had dwindled under war conditions to such on extent that no more than one third of the land was required. In those circumstances the remainder was sublet for fourteen years at an annual rent of ?1,150. The general commissioners at income tax decided that the difference of ?400 between the outgoing of ?750 for the land retained and the incoming of ?1,150 for the land disposed of was "income received from an investment, and the business not being one within the special categories mentioned in the Finance Act, 1939, that ?400 was not taxable. It was held that the word "investment" must be construed in the ordinary, popular sense of the ward as used by business men and not as a term of art having a defined or technical meaning and that it was impossible to say that the commissioners had erred in law in coming to the conclusion that the transaction resulted in an investment. Scott L. J. in delivering his judgment laid emphasis on the point that after the business of the company had dwindled, it partitioned part of the land from the rest and sublet it by installing a heating apparatus for the sub lessee. It was found that war conditions had reduced the companys business to very small proportions and they cut their loss by going out of business in respect of the major part of their land and put it out of their power for 14 years to resume business there. In this situation it was observed that in that case they were dealing with part of the property of the company which had become redundant and was sublet purely to produce income, - a transaction quite apart from the ordinary business activities of the company. It was pointed out that the question whether a particular source of income was income or not must be decided, as it could be according to ordinary commonsense principles.15. The short question to decide in this case is whether on the facts found, it could be said reasonably that the dyeing plant had become redundant for its business as a silk manufacturing concern, simply by the circumstance that for the time being it could not be used by it personally for the purpose of dyeing silk yarn owing to the non availability of yarn. It is difficult to conceive that the company would not have immediately started dyeing yarn as soon as it became available. Instead of dyeing yarn, another person was allowed to dye jute (we are told), the assessee company making income out of its use as a commercial asset. In this situation it is not possible to hold that the income thus earned was not a part of the income of the business and was not earned for the business by its commercial asset or that this commercial asset had become redundant to the companys business of manufacture of silk. The analogy of Broadway Car Co. Ltd.,(1946) 2 ALL E. R. 609, therefore, does not hold good for the decision of the present matter.16. We are, therefore, of the opinion that it was a part of the normal activities of the assessees business to earn money by making use of its machinery by either employing it in its own manufacturing concern or temporarily letting it to others for making profit for that business when for the time being it could not itself run it. The High Court, therefore, was in error in holding that the dyeing plant had ceased to be a commercial asset of the assessee and the income earned by it and received from the lessee Messrs Parakh and Co. was not chargeable to excess profits tax. The result, therefore, is that we hold that the answer returned by the High Court to the question referred to it by the Tribunal was wrong and that the correct answer to the question would be in the affirmative and not in the negative.17.
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8. In our opinion, the contention raised by the learned Attorney General is sound. The High Court was in error in engrafting a proviso on the rule deduced by it from the authorities considered by it, to the effect that a commercial asset of a business concern which yields income must at the time it was let out be in a condition to be used as commercial asset by the assessee himself. We respectfully concur in the opinion of the learned Chief Justice that if the commercial asset is not capable of being used as such, then its being let out to others does not result in an income which is the income of the business, but we cannot accept the view that an asset which was acquired and used for the purpose of the business ceased to be a commercial asset of that business as soon as it was temporarily put out of use or let out to another person for use in his business or trade. The yield of income by a commercial asset is the profit of the business irrespective of the manner in which that asset is exploited by the owner of the business. He is entitled to exploit it to his best advantage and he may do so either by using it himself personally or by letting it out to somebody else. Suppose, for instance, in a manufacturing concern the use of its plant and machinery can advantageously be made owing to paucity of raw materials only for six hours in a working day, and in order to get the best yield out of it, another person who has got there requisite raw materials is allowed to use it as a licensee on payment of certain consideration for three hours; can it be said in such a situation with any justification that the amount realized from the licensee is not a part of the business income of the licensor. In this case the company was incorporated purely as a manufacturing concern with the objects of making profit. It installed plant and machinery for the purpose of its business, and it was open to it if at any time it found that any part of its play "for the time being" could not be advantageously employed for earning profit by the company itself, to earn profit by leasing it to somebody else. It is difficult to hold that the income thus earned by the commercial asset is not income from the business of the company that has been solely incorporated for the purpose of doing business and earning profits. There is no material whatever for taking the view that the assessee company was incorporated with any other object than of carrying on business or trade. Owning properties and letting them was not a purpose for which it was formed and that being so, the disputed income cannot be said to fall under any section of the Indian Income-tax Act other thanhowever, are in respectful agreement with the observations of Lord President Strathclyde in Sutherlandv. The Commissioners of Inland Revenue,(1928) 12 Tax. Cas63, that a commercial asset susceptible of being put to a variety of different uses in which gain might be acquired, and whichever of these uses it was put to by the appellant, the profit earned was a user of the asset of the same business. A mere substituted use of the commercial asset does not change or alter the nature of that asset. What ever the commercial asset produces is income of the business of which it is an asset, the process by which the asset makes the income beingargument, in our opinion, though attractive, is fallacious. The analogy between the case of land and of a dyeing plant for the purpose of taxing statutes is inappropriate. The distinction becomes apparent from the following passage which occurs in Tucker L. J. S judgment inIless case,(1947) 1 ALL E. R. 798it was suggested by counsel for the Crown that the case was like the InlandRevenue Commrs. v. Desoutter Bros. Ltd.,(1946) 1 All E. R.58, where it was held that if you make use of a patent in your business and also receive royalties from the use of the patent by others licensed to use it, those royalties cannot be regarded as receipts from an investment. In other words, the door has to be either open or shut. A patent is either an investment or it is not. The suggestion was that freehold land is in the same position, and if you carry on business on part of it whatever you do with the rest by way of licensing or letting cannot be regarded as producing income from investment. That, however, is dead in the teeth of the judgment in the InlandRevenue Commrs. v. Broadway Car Co. Ltd.,(1946) 2 All E. R.We are, therefore, of the opinion that it was a part of the normal activities of the assessees business to earn money by making use of its machinery by either employing it in its own manufacturing concern or temporarily letting it to others for making profit for that business when for the time being it could not itself run it. The High Court, therefore, was in error in holding that the dyeing plant had ceased to be a commercial asset of the assessee and the income earned by it and received from the lessee Messrs Parakh and Co. was not chargeable to excess profits tax. The result, therefore, is that we hold that the answer returned by the High Court to the question referred to it by the Tribunal was wrong and that the correct answer to the question would be in the affirmative and not in the negative.
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SHRI RAM SAHU (DEAD) THROUGH LRS & ORS Vs. VINOD KUMAR RAWAT & ORS | the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff – appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC. 11.1 Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession. 12. Hence, on the grounds stated in the impugned order, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to possession. 13. Even otherwise there is ample material on record to suggest/show the possession of the appellants herein/original plaintiff. During the pendency of the appeal the respondents original defendant nos. 1 and 2 filed an application under Section 151 CPC for dismissing the appeal filed by the appellant and for directing the appellant original plaintiff to vacate the suit property. In the said application filed on 19.03.2012 the respondents original defendant nos. 1 & 2 never stated that they are in possession of the disputed suit house. On the contrary, they prayed for an order directing the appellants original plaintiff to vacate the suit property. The said application for whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents – original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averments have been pleaded in the application as to why such a prayer is sought belatedly. It was also submitted that if during the pendency of the suit the plaintiffs have neither been threatened nor have been sought to be dispossessed of the aforesaid property such a prayer at the appellate stage may not be entertained. The High Court dismissed the said application, not on merits but on the ground that the same was submitted belatedly. However, the High Court dismissed the said application with the grant of permission to file a separate suit for the aforesaid relief against the defendants. 13.1 At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 – respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants -appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place. 14. The sum and substance of the aforesaid discussion is that the High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside. | 1[ds]5. By the impugned order the High Court in exercise of powers under Section 114 read with Order 47 Rule 1 CPC has allowed the review petition and has reviewed the judgment and order dated 10.12.2013 passed in First Appeal No.241 of 2005 insofar as deleting the observations made in Para 20 as regards the possession of the disputed property, which were in favour of the appellants – original plaintiffs. From the impugned order passed by the High Court, it appears that the High Court has deleted the observations made in para 20 as regards possession of the plaintiffs mainly/solely on the ground that the issue of possession was neither before the Learned Trial Court nor was it before the First Appellate Court and no such issue with respect to possession was framed by the Learned Trial Court.6.1 In the case of Haridas Das vs. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78 while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC it is observed and held in paragraph 14 to 18 as under:14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 it was held that:8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations:It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 , this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: (SCC p. 390, para 3)It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 were also noted:An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.18. It is also pertinent to mention the observations of this Court in Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715. Relying upon the judgments in Aribam and Meera Bhanja it was observed as under:9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise.7. The dictionary meaning of the word review is the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi vs. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844 , this Court has held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise.8. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by this Court in the case of T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440 . It is held that such an error is an error which is a patent error and not a mere wrong decision. In the case of Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233 , it is observed as under:It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review.10. Considered in the light of the aforesaid settled position, we find that the High Court has clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. No ground as envisaged under Order 47 Rule 1 CPC has been made out for the purpose of reviewing the observations made in para 20. It is required to be noted and as evident from para 20, the High Court made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness PW2 and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house. Therefore, when the observation with respect to the possession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparent on the face of proceedings which were required to be reviewed in exercise of powers under Order 47 Rule 1 CPC. At this stage, it is required to be noted that even High Court while making observations in para 20 with respect to plaintiff in possession also took note of the fact that the defendant nos. 1 and 2 – respondents herein themselves filed an application being I.A. No.1267 of 2012 which was filed under Section 151 CPC for getting the possession of the disputed house from the appellants and the said application was dismissed as withdrawn. Therefore, the High Court took note of the fact that even according to the defendant nos. 1 & 2 the appellants were in possession of the disputed house. Therefore, in light of the fact situation, the High Court has clearly erred in deleting para 20 in exercise of powers under Order 47 Rule 1 CPC more particularly in the light of the settled preposition of law laid down by this Court in the aforesaid decisions.11. Now so far as the submission on behalf of the respondents – original defendant nos. 1 & 2 and the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff – appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC.11.1 Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession.12. Hence, on the grounds stated in the impugned order, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to possession.13. Even otherwise there is ample material on record to suggest/show the possession of the appellants herein/original plaintiff. During the pendency of the appeal the respondents original defendant nos. 1 and 2 filed an application under Section 151 CPC for dismissing the appeal filed by the appellant and for directing the appellant original plaintiff to vacate the suit property. In the said application filed on 19.03.2012 the respondents original defendant nos. 1 & 2 never stated that they are in possession of the disputed suit house. On the contrary, they prayed for an order directing the appellants original plaintiff to vacate the suit property. The said application for whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents – original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averments have been pleaded in the application as to why such a prayer is sought belatedly. It was also submitted that if during the pendency of the suit the plaintiffs have neither been threatened nor have been sought to be dispossessed of the aforesaid property such a prayer at the appellate stage may not be entertained. The High Court dismissed the said application, not on merits but on the ground that the same was submitted belatedly. However, the High Court dismissed the said application with the grant of permission to file a separate suit for the aforesaid relief against the defendants. 13.1 At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 – respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants -appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place.14. The sum and substance of the aforesaid discussion is that the High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside. | 1 | 10,851 | 3,149 | ### Instruction:
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the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff – appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC. 11.1 Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession. 12. Hence, on the grounds stated in the impugned order, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to possession. 13. Even otherwise there is ample material on record to suggest/show the possession of the appellants herein/original plaintiff. During the pendency of the appeal the respondents original defendant nos. 1 and 2 filed an application under Section 151 CPC for dismissing the appeal filed by the appellant and for directing the appellant original plaintiff to vacate the suit property. In the said application filed on 19.03.2012 the respondents original defendant nos. 1 & 2 never stated that they are in possession of the disputed suit house. On the contrary, they prayed for an order directing the appellants original plaintiff to vacate the suit property. The said application for whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents – original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averments have been pleaded in the application as to why such a prayer is sought belatedly. It was also submitted that if during the pendency of the suit the plaintiffs have neither been threatened nor have been sought to be dispossessed of the aforesaid property such a prayer at the appellate stage may not be entertained. The High Court dismissed the said application, not on merits but on the ground that the same was submitted belatedly. However, the High Court dismissed the said application with the grant of permission to file a separate suit for the aforesaid relief against the defendants. 13.1 At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 – respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants -appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place. 14. The sum and substance of the aforesaid discussion is that the High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside.
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1
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1 & 2 and the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff – appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC.11.1 Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession.12. Hence, on the grounds stated in the impugned order, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to possession.13. Even otherwise there is ample material on record to suggest/show the possession of the appellants herein/original plaintiff. During the pendency of the appeal the respondents original defendant nos. 1 and 2 filed an application under Section 151 CPC for dismissing the appeal filed by the appellant and for directing the appellant original plaintiff to vacate the suit property. In the said application filed on 19.03.2012 the respondents original defendant nos. 1 & 2 never stated that they are in possession of the disputed suit house. On the contrary, they prayed for an order directing the appellants original plaintiff to vacate the suit property. The said application for whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents – original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averments have been pleaded in the application as to why such a prayer is sought belatedly. It was also submitted that if during the pendency of the suit the plaintiffs have neither been threatened nor have been sought to be dispossessed of the aforesaid property such a prayer at the appellate stage may not be entertained. The High Court dismissed the said application, not on merits but on the ground that the same was submitted belatedly. However, the High Court dismissed the said application with the grant of permission to file a separate suit for the aforesaid relief against the defendants. 13.1 At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 – respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants -appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place.14. The sum and substance of the aforesaid discussion is that the High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside.
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Sub-Divisional, Officer, Mirzapur Vs. Raja Sri Niwas Prasad Singh | the 30th day and would be within time for setting aside an ex parte decree if the intimation did reach the State Government on July 22 for the first time. This matter must be tried and has not been tried. The respondent, however, contends that there is no provision for review; that the Compensation Rolls became final under S. 52; and that the State Government not having appealed, the Compensation Officer cannot reopen the proceedings. This, in our opinion, is not quite correct. The other side relies upon Craig v. Kansen, 1943 KB 256 and contends that failure to serve a notice rendered null and void the order against the State Government and the State Government was entitled to have it set aside and the Compensation Officer has inherent power to set it aside.The other side challenges this inherent power.13. No doubt the Code of Civil Procedure is to be used as far as may be and even if O. 9 does not strictly apply the inherent power conferred by S. 151 of the Code of Civil Procedure must be available to the Compensation Officer. It is contended that no general power of review is granted by the Act and as the Civil Procedure Code provides for the manner in which ex parte decrees can be set aside, inherent powers to set aside ex parte decrees may not be invoked by the Compensation Officer and the proceedings before him for reopening the objection case must be without jurisdiction. Reference is also made to S. 61 under which a slip order can be made and it is contended that the Compensation Officer after signing and sealing the final Compensation Assessment Rolls cannot do more than correct slips or errors apparent on the record.14. Here the question is not one of reopening the Compensation Roll or the objection case for purposes of making a correction or for review. The question here is that one of the necessary parties to the objection cases was neither joined nor noticed to appear. The most important party, besides the objector, claiming enhancement of the compensation, was the State which has to pay the enhanced compensation. That party had to be joined to the proceedings under S. 343 and a notice or intimation of the date of the hearing had to be sent as laid down in S. 343. Section 343 prescribes not only the manner of serving notices but lays down that the State Government must be joined. Every Court and tribunal is entitled to reopen a proceeding which has proceeded ex parte, not because a party has failed to appear but because a notice has not been sent to a necessary party. A decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party and the Court may in such a case reopen the proceeding to give the party a chance to state its case.15. When the petition for writ was filed the proceedings before the Compensation Officer were at a very early stage. The State Government had applied for reopening of the objection cases and the Zamindar had asked for certain documents to prove that the State Government had notice of the proceedings and had, in fact, appeared through the Zamindari Abolition Naib-Tahsildars to contest the objections. The State Government had claimed privilege and the claim of privilege was allowed by the Objection Officer. The Zamindar had thereupon filed the application to challenge the claim of privilege and to get the order of the Compensation Officer quashed. As we have said earlier the matter was allowed to be enlarged so that the respondent was enabled to claim a writ of prohibition to stifle the case of the State Government for reopening of the objection case. The High Court not only quashed the order by which the documents asked to be produced were held to be privileged, but at the same time issued a writ of prohibition in the case. The question whether the Compensation Officer would or would not allow the objection cases to be reopened still remains to be decided and the High Court was in error in issuing a writ of prohibition when the Compensation Officer had clearly jurisdiction to determine whether to reopen the proceedings. The question of jurisdiction can only be decided after it has been considered by the Compensation Officer and he proceeds to reopen the proceedings. No such question appears to have been raised before the Compensation Officer and in fact it was not so raised even in the petition before the High Court. In such circumstances the writ to prohibition was not called for and ought not to have been issued. It is manifest that the State Government was not sent a notice of the hearing of the objection cases and it has a right to move the Objection Officer to reopen the proceedings. Whether the Compensation Officer would reopen the proceeding or not is a matter for the Objection Officer to decide in the first instance. It cannot be said at this stage that there is no jurisdiction in the Objection Officer to consider the petition of the State Government.16. In the circumstances, we dissolve the writ of prohibition which has been issued by the High Court but maintain the order of the High Court quashing the order, dated March 31, 1958. This does not mean that the State Government is bound to produce all the documents. The Compensation Officer will be required to decide, in the light of the decisions of this Court reported in State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 : (AIR 1961 SC 493 ) and Amar Chand Butail v. Union of India, AIR 1964 SC 1658 , whether the claim of privilege raised by the State Government should be sustained or not. That must be done after appropriate affidavits by the heads of the Departments concerned are filed and the claim of privilege is properly examined.17. | 1[ds]It is, therefore, quite clear that the State Government ought to have been joined by the objector to the proceedings for enhancement of compensation. It is equally clear that even though not joined the State Government was entitled to a special notice in common with the intermediaries and other persons interested, of the date of the hearing. Since no such intimation was sent the proceedings will not, prima facie, bind the State Government and that in fact is the claim made by the State Government by its applications for the reopening of the proceedings before the Compensationin our opinion, is not quite correct. The other side relies upon Craig v. Kansen, 1943 KB 256 and contends that failure to serve a notice rendered null and void the order against the State Government and the State Government was entitled to have it set aside and the Compensation Officer has inherent power to set it aside.When the petition for writ was filed the proceedings before the Compensation Officer were at a very early stage. The State Government had applied for reopening of the objection cases and the Zamindar had asked for certain documents to prove that the State Government had notice of the proceedings and had, in fact, appeared through the Zamindari Abolition Naib-Tahsildars to contest the objections. The State Government had claimed privilege and the claim of privilege was allowed by the Objection Officer. The Zamindar had thereupon filed the application to challenge the claim of privilege and to get the order of the Compensation Officer quashed. As we have said earlier the matter was allowed to be enlarged so that the respondent was enabled to claim a writ of prohibition to stifle the case of the State Government for reopening of the objection case. The High Court not only quashed the order by which the documents asked to be produced were held to be privileged, but at the same time issued a writ of prohibition in the case. The question whether the Compensation Officer would or would not allow the objection cases to be reopened still remains to be decided and the High Court was in error in issuing a writ of prohibition when the Compensation Officer had clearly jurisdiction to determine whether to reopen the proceedings. The question of jurisdiction can only be decided after it has been considered by the Compensation Officer and he proceeds to reopen the proceedings. No such question appears to have been raised before the Compensation Officer and in fact it was not so raised even in the petition before the High Court. In such circumstances the writ to prohibition was not called for and ought not to have been issued. It is manifest that the State Government was not sent a notice of the hearing of the objection cases and it has a right to move the Objection Officer to reopen the proceedings. Whether the Compensation Officer would reopen the proceeding or not is a matter for the Objection Officer to decide in the first instance. It cannot be said at this stage that there is no jurisdiction in the Objection Officer to consider the petition of the State Government.In the circumstances, we dissolve the writ of prohibition which has been issued by the High Court but maintain the order of the High Court quashing the order, dated March 31, 1958. This does not mean that the State Government is bound to produce all the documents. The Compensation Officer will be required to decide, in the light of the decisions of this Court reported in State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 : (AIR 1961 SC 493 ) and Amar Chand Butail v. Union of India, AIR 1964 SC 1658 , whether the claim of privilege raised by the State Government should be sustained or not. That must be done after appropriate affidavits by the heads of the Departments concerned are filed and the claim of privilege is properly examined. | 1 | 4,826 | 704 | ### Instruction:
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the 30th day and would be within time for setting aside an ex parte decree if the intimation did reach the State Government on July 22 for the first time. This matter must be tried and has not been tried. The respondent, however, contends that there is no provision for review; that the Compensation Rolls became final under S. 52; and that the State Government not having appealed, the Compensation Officer cannot reopen the proceedings. This, in our opinion, is not quite correct. The other side relies upon Craig v. Kansen, 1943 KB 256 and contends that failure to serve a notice rendered null and void the order against the State Government and the State Government was entitled to have it set aside and the Compensation Officer has inherent power to set it aside.The other side challenges this inherent power.13. No doubt the Code of Civil Procedure is to be used as far as may be and even if O. 9 does not strictly apply the inherent power conferred by S. 151 of the Code of Civil Procedure must be available to the Compensation Officer. It is contended that no general power of review is granted by the Act and as the Civil Procedure Code provides for the manner in which ex parte decrees can be set aside, inherent powers to set aside ex parte decrees may not be invoked by the Compensation Officer and the proceedings before him for reopening the objection case must be without jurisdiction. Reference is also made to S. 61 under which a slip order can be made and it is contended that the Compensation Officer after signing and sealing the final Compensation Assessment Rolls cannot do more than correct slips or errors apparent on the record.14. Here the question is not one of reopening the Compensation Roll or the objection case for purposes of making a correction or for review. The question here is that one of the necessary parties to the objection cases was neither joined nor noticed to appear. The most important party, besides the objector, claiming enhancement of the compensation, was the State which has to pay the enhanced compensation. That party had to be joined to the proceedings under S. 343 and a notice or intimation of the date of the hearing had to be sent as laid down in S. 343. Section 343 prescribes not only the manner of serving notices but lays down that the State Government must be joined. Every Court and tribunal is entitled to reopen a proceeding which has proceeded ex parte, not because a party has failed to appear but because a notice has not been sent to a necessary party. A decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party and the Court may in such a case reopen the proceeding to give the party a chance to state its case.15. When the petition for writ was filed the proceedings before the Compensation Officer were at a very early stage. The State Government had applied for reopening of the objection cases and the Zamindar had asked for certain documents to prove that the State Government had notice of the proceedings and had, in fact, appeared through the Zamindari Abolition Naib-Tahsildars to contest the objections. The State Government had claimed privilege and the claim of privilege was allowed by the Objection Officer. The Zamindar had thereupon filed the application to challenge the claim of privilege and to get the order of the Compensation Officer quashed. As we have said earlier the matter was allowed to be enlarged so that the respondent was enabled to claim a writ of prohibition to stifle the case of the State Government for reopening of the objection case. The High Court not only quashed the order by which the documents asked to be produced were held to be privileged, but at the same time issued a writ of prohibition in the case. The question whether the Compensation Officer would or would not allow the objection cases to be reopened still remains to be decided and the High Court was in error in issuing a writ of prohibition when the Compensation Officer had clearly jurisdiction to determine whether to reopen the proceedings. The question of jurisdiction can only be decided after it has been considered by the Compensation Officer and he proceeds to reopen the proceedings. No such question appears to have been raised before the Compensation Officer and in fact it was not so raised even in the petition before the High Court. In such circumstances the writ to prohibition was not called for and ought not to have been issued. It is manifest that the State Government was not sent a notice of the hearing of the objection cases and it has a right to move the Objection Officer to reopen the proceedings. Whether the Compensation Officer would reopen the proceeding or not is a matter for the Objection Officer to decide in the first instance. It cannot be said at this stage that there is no jurisdiction in the Objection Officer to consider the petition of the State Government.16. In the circumstances, we dissolve the writ of prohibition which has been issued by the High Court but maintain the order of the High Court quashing the order, dated March 31, 1958. This does not mean that the State Government is bound to produce all the documents. The Compensation Officer will be required to decide, in the light of the decisions of this Court reported in State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 : (AIR 1961 SC 493 ) and Amar Chand Butail v. Union of India, AIR 1964 SC 1658 , whether the claim of privilege raised by the State Government should be sustained or not. That must be done after appropriate affidavits by the heads of the Departments concerned are filed and the claim of privilege is properly examined.17.
### Response:
1
### Explanation:
It is, therefore, quite clear that the State Government ought to have been joined by the objector to the proceedings for enhancement of compensation. It is equally clear that even though not joined the State Government was entitled to a special notice in common with the intermediaries and other persons interested, of the date of the hearing. Since no such intimation was sent the proceedings will not, prima facie, bind the State Government and that in fact is the claim made by the State Government by its applications for the reopening of the proceedings before the Compensationin our opinion, is not quite correct. The other side relies upon Craig v. Kansen, 1943 KB 256 and contends that failure to serve a notice rendered null and void the order against the State Government and the State Government was entitled to have it set aside and the Compensation Officer has inherent power to set it aside.When the petition for writ was filed the proceedings before the Compensation Officer were at a very early stage. The State Government had applied for reopening of the objection cases and the Zamindar had asked for certain documents to prove that the State Government had notice of the proceedings and had, in fact, appeared through the Zamindari Abolition Naib-Tahsildars to contest the objections. The State Government had claimed privilege and the claim of privilege was allowed by the Objection Officer. The Zamindar had thereupon filed the application to challenge the claim of privilege and to get the order of the Compensation Officer quashed. As we have said earlier the matter was allowed to be enlarged so that the respondent was enabled to claim a writ of prohibition to stifle the case of the State Government for reopening of the objection case. The High Court not only quashed the order by which the documents asked to be produced were held to be privileged, but at the same time issued a writ of prohibition in the case. The question whether the Compensation Officer would or would not allow the objection cases to be reopened still remains to be decided and the High Court was in error in issuing a writ of prohibition when the Compensation Officer had clearly jurisdiction to determine whether to reopen the proceedings. The question of jurisdiction can only be decided after it has been considered by the Compensation Officer and he proceeds to reopen the proceedings. No such question appears to have been raised before the Compensation Officer and in fact it was not so raised even in the petition before the High Court. In such circumstances the writ to prohibition was not called for and ought not to have been issued. It is manifest that the State Government was not sent a notice of the hearing of the objection cases and it has a right to move the Objection Officer to reopen the proceedings. Whether the Compensation Officer would reopen the proceeding or not is a matter for the Objection Officer to decide in the first instance. It cannot be said at this stage that there is no jurisdiction in the Objection Officer to consider the petition of the State Government.In the circumstances, we dissolve the writ of prohibition which has been issued by the High Court but maintain the order of the High Court quashing the order, dated March 31, 1958. This does not mean that the State Government is bound to produce all the documents. The Compensation Officer will be required to decide, in the light of the decisions of this Court reported in State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 : (AIR 1961 SC 493 ) and Amar Chand Butail v. Union of India, AIR 1964 SC 1658 , whether the claim of privilege raised by the State Government should be sustained or not. That must be done after appropriate affidavits by the heads of the Departments concerned are filed and the claim of privilege is properly examined.
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Syed Mehaboob Vs. The New India Assurance Ltd | Ganguly, J. 1. Leave granted. 2. The appellant-claimant was a driver-cum-cleaner of lorry bearing No. HR 38 F 8781 and the same was stopped in front of WIPRO company at Ring Road on 31.12.2001, when at about 9 a.m., driver of the lorry bearing No. TN 34 A 2994 dashed against the appellant. The appellant sustained multiple injuries and was rushed to Sanjay Gandhi Hospital and then to Victoria Hospital.3. The appellant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Rs.4 lacs as compensation.4. The Motor Accident Claims Tribunal (MACT) concluded that the accident occurred due to actionable negligence of the lorry driver bearing No. TN 34 A 2994 as a result of which the appellant sustained injuries.5. Before the MACT, it was found that the appellant sustained compound type 3-A fracture of left femur, compound type-2 supracondylar fracture of left femur and fractured right pubic bone for which he had to undergo operation and treatment in the hospital. The doctor assessed permanent disability of 86% to the left lower limb and 43% to the whole body. As a result of the injuries, the appellant was unable to walk, sit or stand without support and his left lower limb was shortened by 2.5 inches and, therefore, was incapable of driving any type of vehicle. Since the appellant was unable to use both his legs for driving, it would affect his occupation as a driver to a great extent. The MACT, in calculating compensation, considered the principle that while assessing the economic and functional disability what is to be looked into is the occupation of the appellant and the extent to which the physical disability sustained by the appellant would affect his earning capacity. Accordingly, on taking into consideration the nature of disabilities suffered with reference to the avocation of the appellant, it estimated the functional loss of future earning capacity of the appellant at 100%.6. The appellant had claimed that he was earning Rs.5000-6000/- p.m. However, the same was unsubstantiated by material evidence. Hence, the Tribunal estimated the daily earnings of the appellant at Rs.80/- and monthly earnings at Rs.2400/-. At the time of the accident, the appellant was 28 years old. Thus, the Tribunal adopted a multiplier of 16. Accordingly, loss of future earnings of the appellant was calculated at Rs.2400 X 12 X 16 = Rs.4,60,800/-. Tribunal awarded compensation as follows: chart 7. The Tribunal held that the owner of the vehicle and the insurance company were jointly and severally liable to pay Rs. 5,77,800/- as compensation to the appellant, along with interest @ 8% from the date of the petition till realization. 8. Aggrieved by the compensation granted by the Tribunal, the insurance company appealed to the High Court of Karnataka contending that the compensation so awarded was arbitrary and unreasonable. 9. The High Court assessed total bodily disability at 30% and assessed his income at Rs. 3,000/- p.m. and held that the income proportionate to the disability was Rs. 1,000/- p.m. On re-appreciation of facts and evidence, the High Court held that the appellant was entitled to a reduced compensation as follows: chart10. The High Court, in passing its award, has virtually given no reasons for reducing the compensation awarded by the Tribunal to the appellant. 11. We are of the opinion that the award of the Tribunal is well-considered and well-reasoned and the compensation so computed by it is just and equitable. On the other hand, the High Court has reduced the compensation without any justification. It is a well-settled principle of law that a court has duty to give reasons as its judgment affects the rights and obligations of the litigating parties, who are entitled to know why the court came to its decision.12. This duty to give reasons is even more necessary when the High Court disagrees with the judgment of a lower court and sets it aside.13. The Motor Vehicles Act of 1988 is a beneficent legislation intended to place the claimant in the same position that he was before the accident and to compensate him for his loss. Thus, it should be interpreted liberally so as to achieve the maximum benefit.14. We have been through the award of the Tribunal and are satisfied that the award of compensation is not arbitrary, unreasonable or excessive. It is passed after taking into consideration relevant factors and in the facts and circumstances of the case it is correct. The reduction in compensation by the High Court is in fact arbitrary and thus, we set aside the judgment of the High Court. | 1[ds]10. The High Court, in passing its award, has virtually given no reasons for reducing the compensation awarded by the Tribunal to the appellant.We are of the opinion that the award of the Tribunal ised and the compensation so computed by it is just and equitable. On the other hand, the High Court has reduced the compensation without any justification. It is aprinciple of law that a court has duty to give reasons as its judgment affects the rights andhe litigating parties, who are entitled to know why the court came to its decision.12. This duty to give reasons is even more necessary when the High Court disagrees with thea lower court and sets it aside.13. The Motor Vehicles Act of 1988 is a beneficent legislation intended to place the claimant in the same position that he was before the accident and to compensate him for his loss. Thus, it should be interpreted liberally so as to achieve the maximum benefit.14. We have been through the award of the Tribunal and are satisfied that the award of compensation is not arbitrary, unreasonable or excessive. It is passed after taking into consideration relevant factors and in the facts andhe case it is correct. The reduction in compensation by the High Court is in fact arbitrary and thus, we set aside thehe High Court. | 1 | 846 | 243 | ### 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:
Ganguly, J. 1. Leave granted. 2. The appellant-claimant was a driver-cum-cleaner of lorry bearing No. HR 38 F 8781 and the same was stopped in front of WIPRO company at Ring Road on 31.12.2001, when at about 9 a.m., driver of the lorry bearing No. TN 34 A 2994 dashed against the appellant. The appellant sustained multiple injuries and was rushed to Sanjay Gandhi Hospital and then to Victoria Hospital.3. The appellant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Rs.4 lacs as compensation.4. The Motor Accident Claims Tribunal (MACT) concluded that the accident occurred due to actionable negligence of the lorry driver bearing No. TN 34 A 2994 as a result of which the appellant sustained injuries.5. Before the MACT, it was found that the appellant sustained compound type 3-A fracture of left femur, compound type-2 supracondylar fracture of left femur and fractured right pubic bone for which he had to undergo operation and treatment in the hospital. The doctor assessed permanent disability of 86% to the left lower limb and 43% to the whole body. As a result of the injuries, the appellant was unable to walk, sit or stand without support and his left lower limb was shortened by 2.5 inches and, therefore, was incapable of driving any type of vehicle. Since the appellant was unable to use both his legs for driving, it would affect his occupation as a driver to a great extent. The MACT, in calculating compensation, considered the principle that while assessing the economic and functional disability what is to be looked into is the occupation of the appellant and the extent to which the physical disability sustained by the appellant would affect his earning capacity. Accordingly, on taking into consideration the nature of disabilities suffered with reference to the avocation of the appellant, it estimated the functional loss of future earning capacity of the appellant at 100%.6. The appellant had claimed that he was earning Rs.5000-6000/- p.m. However, the same was unsubstantiated by material evidence. Hence, the Tribunal estimated the daily earnings of the appellant at Rs.80/- and monthly earnings at Rs.2400/-. At the time of the accident, the appellant was 28 years old. Thus, the Tribunal adopted a multiplier of 16. Accordingly, loss of future earnings of the appellant was calculated at Rs.2400 X 12 X 16 = Rs.4,60,800/-. Tribunal awarded compensation as follows: chart 7. The Tribunal held that the owner of the vehicle and the insurance company were jointly and severally liable to pay Rs. 5,77,800/- as compensation to the appellant, along with interest @ 8% from the date of the petition till realization. 8. Aggrieved by the compensation granted by the Tribunal, the insurance company appealed to the High Court of Karnataka contending that the compensation so awarded was arbitrary and unreasonable. 9. The High Court assessed total bodily disability at 30% and assessed his income at Rs. 3,000/- p.m. and held that the income proportionate to the disability was Rs. 1,000/- p.m. On re-appreciation of facts and evidence, the High Court held that the appellant was entitled to a reduced compensation as follows: chart10. The High Court, in passing its award, has virtually given no reasons for reducing the compensation awarded by the Tribunal to the appellant. 11. We are of the opinion that the award of the Tribunal is well-considered and well-reasoned and the compensation so computed by it is just and equitable. On the other hand, the High Court has reduced the compensation without any justification. It is a well-settled principle of law that a court has duty to give reasons as its judgment affects the rights and obligations of the litigating parties, who are entitled to know why the court came to its decision.12. This duty to give reasons is even more necessary when the High Court disagrees with the judgment of a lower court and sets it aside.13. The Motor Vehicles Act of 1988 is a beneficent legislation intended to place the claimant in the same position that he was before the accident and to compensate him for his loss. Thus, it should be interpreted liberally so as to achieve the maximum benefit.14. We have been through the award of the Tribunal and are satisfied that the award of compensation is not arbitrary, unreasonable or excessive. It is passed after taking into consideration relevant factors and in the facts and circumstances of the case it is correct. The reduction in compensation by the High Court is in fact arbitrary and thus, we set aside the judgment of the High Court.
### Response:
1
### Explanation:
10. The High Court, in passing its award, has virtually given no reasons for reducing the compensation awarded by the Tribunal to the appellant.We are of the opinion that the award of the Tribunal ised and the compensation so computed by it is just and equitable. On the other hand, the High Court has reduced the compensation without any justification. It is aprinciple of law that a court has duty to give reasons as its judgment affects the rights andhe litigating parties, who are entitled to know why the court came to its decision.12. This duty to give reasons is even more necessary when the High Court disagrees with thea lower court and sets it aside.13. The Motor Vehicles Act of 1988 is a beneficent legislation intended to place the claimant in the same position that he was before the accident and to compensate him for his loss. Thus, it should be interpreted liberally so as to achieve the maximum benefit.14. We have been through the award of the Tribunal and are satisfied that the award of compensation is not arbitrary, unreasonable or excessive. It is passed after taking into consideration relevant factors and in the facts andhe case it is correct. The reduction in compensation by the High Court is in fact arbitrary and thus, we set aside thehe High Court.
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Agra Development Authority, Agra Vs. Anek Singh and others | amount of compensation was not actually paid to the land owners. While holding so the High Court has relied upon and considered the decision of this Court in the case of Pune Municipal Corporation and another versus Harakchand Misirimal Solanki and others reported in (2014) 3 SCC 183. 3.1 Thus, while passing the impugned judgment and order the High Court has solely relied upon the decision of this Court in the case of Pune Municipal Corporation (supra) and other decisions in which the decision in the case of Pune Municipal Corporation (supra) was followed. (Para 12 of the impugned judgment and order). However, the decision of this Court in the case of Pune Municipal Corporation (supra) has been subsequently overruled by the Constitution Bench of this Court in the case of Indore Development Authority versus Manoharlal and others, 2020) 8 SCC 129. 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 nondeposit 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 non-deposit 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. 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 time-barred 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. 366.9. 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. 4. In view of the above Constitution Bench decision of this Court in the case of Indore Development Authority (supra) and the earlier decision of this Court in the case of Pune Municipal Corporation (supra) has been specifically overruled by this Court, which has been relied upon by the High Court while passing the impugned judgment and order, the same passed by the High Court is unsustainable and it deserves to be quashed and set aside. 4.1 In view of the decision of this Court in the case of Indore Development Authority (supra) and considering the facts and circumstances narrated hereinabove, it cannot be said that the acquisition proceedings with respect to the land in question is deemed to have lapsed under the provisions of the Act, 2013. | 1[ds]However, the decision of this Court in the case of Pune Municipal Corporation (supra) has been subsequently overruled by the Constitution Bench of this Court in the case of Indore Development Authority versus Manoharlal and others, 2020) 8 SCC 129. 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 nondeposit 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 non-deposit 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. 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 time-barred 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.366.9. 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.4. In view of the above Constitution Bench decision of this Court in the case of Indore Development Authority (supra) and the earlier decision of this Court in the case of Pune Municipal Corporation (supra) has been specifically overruled by this Court, which has been relied upon by the High Court while passing the impugned judgment and order, the same passed by the High Court is unsustainable and it deserves to be quashed and set aside.4.1 In view of the decision of this Court in the case of Indore Development Authority (supra) and considering the facts and circumstances narrated hereinabove, it cannot be said that the acquisition proceedings with respect to the land in question is deemed to have lapsed under the provisions of the Act, 2013. | 1 | 1,525 | 1,022 | ### 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:
amount of compensation was not actually paid to the land owners. While holding so the High Court has relied upon and considered the decision of this Court in the case of Pune Municipal Corporation and another versus Harakchand Misirimal Solanki and others reported in (2014) 3 SCC 183. 3.1 Thus, while passing the impugned judgment and order the High Court has solely relied upon the decision of this Court in the case of Pune Municipal Corporation (supra) and other decisions in which the decision in the case of Pune Municipal Corporation (supra) was followed. (Para 12 of the impugned judgment and order). However, the decision of this Court in the case of Pune Municipal Corporation (supra) has been subsequently overruled by the Constitution Bench of this Court in the case of Indore Development Authority versus Manoharlal and others, 2020) 8 SCC 129. 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 nondeposit 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 non-deposit 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. 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 time-barred 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. 366.9. 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. 4. In view of the above Constitution Bench decision of this Court in the case of Indore Development Authority (supra) and the earlier decision of this Court in the case of Pune Municipal Corporation (supra) has been specifically overruled by this Court, which has been relied upon by the High Court while passing the impugned judgment and order, the same passed by the High Court is unsustainable and it deserves to be quashed and set aside. 4.1 In view of the decision of this Court in the case of Indore Development Authority (supra) and considering the facts and circumstances narrated hereinabove, it cannot be said that the acquisition proceedings with respect to the land in question is deemed to have lapsed under the provisions of the Act, 2013.
### Response:
1
### Explanation:
However, the decision of this Court in the case of Pune Municipal Corporation (supra) has been subsequently overruled by the Constitution Bench of this Court in the case of Indore Development Authority versus Manoharlal and others, 2020) 8 SCC 129. 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 nondeposit 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 non-deposit 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. 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 time-barred 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.366.9. 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.4. In view of the above Constitution Bench decision of this Court in the case of Indore Development Authority (supra) and the earlier decision of this Court in the case of Pune Municipal Corporation (supra) has been specifically overruled by this Court, which has been relied upon by the High Court while passing the impugned judgment and order, the same passed by the High Court is unsustainable and it deserves to be quashed and set aside.4.1 In view of the decision of this Court in the case of Indore Development Authority (supra) and considering the facts and circumstances narrated hereinabove, it cannot be said that the acquisition proceedings with respect to the land in question is deemed to have lapsed under the provisions of the Act, 2013.
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Nagaraj Shivarao Kharjagi Vs. Syndicate Bank | seems to have felt as alleged by the petitioner and not denied by the Bank in its counter that the compulsory retirement recommended by the Central Vigilance Commission was too harsh and excessive on the petitioner in view of his excellent performance and unblemished antecedent service. The Bank appears to have made two representations; one in 1986 and another in 1987 to the Central Vigilance Commission for taking a lenient view of the matter and to advise lesser punishment to the petitioner. Apparently, those representations were not accepted by the Commission. The disciplinary authority and the appellate authority therefore have no choice in the matter. They had to impose the punishment of compulsory retirement as advised by the Central Vigilance Commission. The advice was binding on the authorities in view of the said directive of the Ministry of Finance, followed by two circulars issued by the successive Chief Executive of the Bank. The disciplinary and appellate authorities might not have referred to the directive of the Ministry of Finance or the Bank circulars. They might not have stated in their orders that they were bound by the punishment proposed by the Central Vililance Commission. But it is reasonably foreseeable and needs no elaboration that they could not have ignored the advice of the Commission. They could not have imposed a lesser punishment without the concurrence of the Commission. Indeed, they could have ignored the advice of the Commission and imposed a lesser punishment only at their peril. The power of the punishing authorities in departmental proceedings is regulated by the statutory Regulations. Regulation 4 merely prescribes diverse punishment which may be imposed upon delinquent officers. Regulation 4 does not provide specific punishments for different misdemeanours except classifying the punishments as minor or major. Regulations leave it to the discretion of the punishing authority to select the appropriate punishment having regard to the gravity of the misconduct proved in the case. Under Regulation 17, the appellate authority may pass an order confirming, enhancing, reducing or completely setting aside the penalty imposed by the disciplinary authority. He has also power to express his own views on the merits of the matter and impose any appropriate punishment on the delinquent officer. It is quasi-judicial power and is unrestricted. But it has been completely fettered by the direction issued by the Ministry of Finance. The Bank has been told that the punishment advised by the Central Vigilance Commission in every case of disciplinary proceedings should be strictly adhered to and not to be altered without prior concurrence of the Central Vigilance Commission and the Ministry of Finance.We are indeed surprised to see the impugned directive issued by the Ministry of Finance, Department of Economic Affairs (Banking Division). Firstly, under the Regulation, the Banks consultation with Central Vigilance Commission in every case is not mandatory. Regulation 20 provides that the Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle. Even if the Bank has made a self imposed rule to consult the Central Vigilance Commission in every disciplinary matter, it does not make the Commissions advice binding on the punishing authority. In this context, reference may be made to Article 320(3) of the Constitution. The Article 320 (3) like Regulation 20 with which we are concerned provides that the Union Public Service Commission or the State Public Commission, as the case may be, shall be consulted-on all disciplinary matters affecting a civil servant including memorials or petitions relating to such matters. This Court in A.N. DSilva v. Union of India, [1962] Suppl; 1 SCR 968 has expresed the view that the Commissions function is purely advisory. It is not an appellate authority over the inquiry officer or the disciplinary authority. The advice tendered by the Commission is not binding on the Government. Similarly, in the present case, the advice tendered by the Central Vigilance Commission is not binding on the Bank or the punishing authority. It is not obligatory upon the punishing authority to accept the advice of the Central Vigilance Commission. Secondly, the Ministry of Finance, Government of India has no jurisdiction to issue the impugned directive to Banking institutions. The government may regulate the Banking institutions within the power located under the banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 . So far as we could see, Section 8 is the only provision which empowers to the Government to issue directions. Section 8 reads: "Every corresponding new bank shall, in the discharge of its function, be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Governor of the Reserve bank, give." * The corresponding new bank referred to in Section 8 has been defined under Section 2(f) of the Act to mean a banking company specified in column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue direction in regard to matters of po licy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. the authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See: De Smiths Judicial Review of Administrative Action, Fourth Edition, p. 309). The impugned directive o f the Ministry of Finance, is therefore, wholly without jurisdiction, and plainly contrary to the statutory Regulations governing disciplinary matters. | 1[ds]The corresponding new bank referred to in Section 8 has been defined under Section 2(f) of the Act to mean a banking company specified in column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue direction in regard to matters of po licy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. the authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See: De Smiths Judicial Review of Administrative Action, Fourth Edition, p. 309). The impugned directive o f the Ministry of Finance, is therefore, wholly without jurisdiction, and plainly contrary to the statutory Regulations governing disciplinarypetitioner being aw are of the directions of the Ministry of Finance and the circulars issued by the Bank has in his memo of appeal before the appellate authority inter alia complained that the system and procedure adopted by the Bank in dealing with vigilance cases, is totally against the principles of natural justice. The Bank has no control over such cases. The Disciplinary Authority and Appellate Authority are required to carry into effect the punishment advised by the Central Vigilance commission without change. | 1 | 3,974 | 327 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
seems to have felt as alleged by the petitioner and not denied by the Bank in its counter that the compulsory retirement recommended by the Central Vigilance Commission was too harsh and excessive on the petitioner in view of his excellent performance and unblemished antecedent service. The Bank appears to have made two representations; one in 1986 and another in 1987 to the Central Vigilance Commission for taking a lenient view of the matter and to advise lesser punishment to the petitioner. Apparently, those representations were not accepted by the Commission. The disciplinary authority and the appellate authority therefore have no choice in the matter. They had to impose the punishment of compulsory retirement as advised by the Central Vigilance Commission. The advice was binding on the authorities in view of the said directive of the Ministry of Finance, followed by two circulars issued by the successive Chief Executive of the Bank. The disciplinary and appellate authorities might not have referred to the directive of the Ministry of Finance or the Bank circulars. They might not have stated in their orders that they were bound by the punishment proposed by the Central Vililance Commission. But it is reasonably foreseeable and needs no elaboration that they could not have ignored the advice of the Commission. They could not have imposed a lesser punishment without the concurrence of the Commission. Indeed, they could have ignored the advice of the Commission and imposed a lesser punishment only at their peril. The power of the punishing authorities in departmental proceedings is regulated by the statutory Regulations. Regulation 4 merely prescribes diverse punishment which may be imposed upon delinquent officers. Regulation 4 does not provide specific punishments for different misdemeanours except classifying the punishments as minor or major. Regulations leave it to the discretion of the punishing authority to select the appropriate punishment having regard to the gravity of the misconduct proved in the case. Under Regulation 17, the appellate authority may pass an order confirming, enhancing, reducing or completely setting aside the penalty imposed by the disciplinary authority. He has also power to express his own views on the merits of the matter and impose any appropriate punishment on the delinquent officer. It is quasi-judicial power and is unrestricted. But it has been completely fettered by the direction issued by the Ministry of Finance. The Bank has been told that the punishment advised by the Central Vigilance Commission in every case of disciplinary proceedings should be strictly adhered to and not to be altered without prior concurrence of the Central Vigilance Commission and the Ministry of Finance.We are indeed surprised to see the impugned directive issued by the Ministry of Finance, Department of Economic Affairs (Banking Division). Firstly, under the Regulation, the Banks consultation with Central Vigilance Commission in every case is not mandatory. Regulation 20 provides that the Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle. Even if the Bank has made a self imposed rule to consult the Central Vigilance Commission in every disciplinary matter, it does not make the Commissions advice binding on the punishing authority. In this context, reference may be made to Article 320(3) of the Constitution. The Article 320 (3) like Regulation 20 with which we are concerned provides that the Union Public Service Commission or the State Public Commission, as the case may be, shall be consulted-on all disciplinary matters affecting a civil servant including memorials or petitions relating to such matters. This Court in A.N. DSilva v. Union of India, [1962] Suppl; 1 SCR 968 has expresed the view that the Commissions function is purely advisory. It is not an appellate authority over the inquiry officer or the disciplinary authority. The advice tendered by the Commission is not binding on the Government. Similarly, in the present case, the advice tendered by the Central Vigilance Commission is not binding on the Bank or the punishing authority. It is not obligatory upon the punishing authority to accept the advice of the Central Vigilance Commission. Secondly, the Ministry of Finance, Government of India has no jurisdiction to issue the impugned directive to Banking institutions. The government may regulate the Banking institutions within the power located under the banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 . So far as we could see, Section 8 is the only provision which empowers to the Government to issue directions. Section 8 reads: "Every corresponding new bank shall, in the discharge of its function, be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Governor of the Reserve bank, give." * The corresponding new bank referred to in Section 8 has been defined under Section 2(f) of the Act to mean a banking company specified in column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue direction in regard to matters of po licy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. the authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See: De Smiths Judicial Review of Administrative Action, Fourth Edition, p. 309). The impugned directive o f the Ministry of Finance, is therefore, wholly without jurisdiction, and plainly contrary to the statutory Regulations governing disciplinary matters.
### Response:
1
### Explanation:
The corresponding new bank referred to in Section 8 has been defined under Section 2(f) of the Act to mean a banking company specified in column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue direction in regard to matters of po licy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. the authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See: De Smiths Judicial Review of Administrative Action, Fourth Edition, p. 309). The impugned directive o f the Ministry of Finance, is therefore, wholly without jurisdiction, and plainly contrary to the statutory Regulations governing disciplinarypetitioner being aw are of the directions of the Ministry of Finance and the circulars issued by the Bank has in his memo of appeal before the appellate authority inter alia complained that the system and procedure adopted by the Bank in dealing with vigilance cases, is totally against the principles of natural justice. The Bank has no control over such cases. The Disciplinary Authority and Appellate Authority are required to carry into effect the punishment advised by the Central Vigilance commission without change.
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RAMBHAU GANPATI NAGPURE Vs. GANESH NATHUJI WARBE | DEEPAK GUPTA, J. 1. This appeal is directed against the final judgment and order dated 28.01.2009 passed by the High Court of Judicature at Bombay, Nagpur Bench whereby the second appeal filed by the appellant was dismissed on the ground that no substantial question of law arose. 2. Brief facts of the case are that the parties owned agricultural land adjoining each other in Mouza Sirsi. The plaintiffs (Respondents before us) filed a suit claiming that the ancestral land of the plaintiffs was about 6.07 hectares, and to the south of the field of the plaintiffs lay the defendant?s (Appellant before us) field and the area of the land owned by the defendant was 4.23 hectares. A re¬survey was done in the year 1991 and in the re-survey the land of the defendant was shown to be 5.3 hectares, which was in excess by 1.07 hectares. 3. Thereafter, the plaintiffs filed an application before the Sub Divisional Officer (S.D.O. for short), Umrer, and got the field re¬ measured as per the old record. Thereafter, the S.D.O. by his order dated 31.07.2000 directed the Taluka Land Inspector for correction of revenue record whereby the original position of the field was restored. In the revenue record, the area and maps of the plaintiffs? field as well as 7/12 extract of the field of plaintiffs was corrected. 4. The case of the plaintiffs was that the defendant erected wire¬ fencing, encroached upon the land of the plaintiffs and, therefore, the suit was filed for possession of the land encroached by the defendant. 5. It would be pertinent to mention that an appeal was filed by the defendant against the order of the S.D.O. before the Settlement Commissioner who remanded the case to the S.D.O. for fresh inquiry and fresh order. The Superintendent of Land Record of Nagpur verified the spot on 27.11.2002 and submitted a proposal report to the S.D.O. Since the order passed was against the plaintiffs, therefore they had brought this suit for possession. 6. On 03.01.2005 the Civil Judge decreed the suit and held plaintiffs to be entitled to possession and directed the defendant to deliver the possession of the disputed land. Defendant filed a regular civil appeal challenging this order and the appeal was dismissed by the District and Sessions Judge on 03.05.2008. Challenging this, the appellant filed a second appeal which was dismissed by the High Court on 28.01.2009. All the courts have held that the defendant has encroached upon the land of the plaintiffs. These are pure finding of facts which cannot be interfered with in these proceedings. 7. It has been strenuously urged by the learned counsel for the appellant that, in fact, the boundary between the two fields contained trees and this was proved by the evidence on record. We are not impressed with this argument. If there was a boundary with trees, how can that be replaced with a fence? Another important fact is that despite repeated queries, learned counsel for the appellant could not explain as to how the land in their ownership and possession which prior to the re-survey was only 4.23 hectares got increased to 5.3 hectares. The only explanation given was that to straighten the boundary some land was exchanged with some relatives. No evidence was placed on record to prove this. 8. Two legal issues have been raised. The first is that the map has not been proved in accordance with Section 83 of the Indian Evidence Act, 1872. It is urged that the plaintiffs have not proved the map. On going through the records, we find that the map was prepared on the directions of the S.D.O. No doubt, after the map was prepared, the order of the S.D.O. directing for preparation of the map was set aside, but that will not affect the evidentiary value of the map which depicts the position of the boundaries as per the holdings of the parties. This map was prepared by the Revenue authorities and not by the plaintiffs/respondents. 9. The next objection raised is that under Section 138 of The Maharashtra Land Revenue Code, 1966 the suit is not maintainable. We find that this objection is totally without any merit. In fact, Section 138 clearly provides that a civil suit can be instituted against any order of ejectment. No provision has been pointed out where the jurisdiction of the civil court has been specifically barred. | 0[ds]We are not impressed with this argument. If there was a boundary with trees, how can that be replaced with a fence? Another important fact is that despite repeated queries, learned counsel for the appellant could not explain as to how the land in their ownership and possession which prior to the re-survey was only 4.23 hectares got increased to 5.3 hectares. The only explanation given was that to straighten the boundary some land was exchanged with some relatives. No evidence was placed on record to prove this.Two legal issues have been raised. The first is that the map has not been proved in accordance with Section 83 of the Indian Evidence Act, 1872. It is urged that the plaintiffs have not proved the map. On going through the records, we find that the map was prepared on the directions of the S.D.O. No doubt, after the map was prepared, the order of the S.D.O. directing for preparation of the map was set aside, but that will not affect the evidentiary value of the map which depicts the position of the boundaries as per the holdings of the parties. This map was prepared by the Revenue authorities and not by the plaintiffs/respondents.The next objection raised is that under Section 138 of The Maharashtra Land Revenue Code, 1966 the suit is not maintainable. We find that this objection is totally without any merit. In fact, Section 138 clearly provides that a civil suit can be instituted against any order of ejectment. No provision has been pointed out where the jurisdiction of the civil court has been specifically barred. | 0 | 817 | 294 | ### 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:
DEEPAK GUPTA, J. 1. This appeal is directed against the final judgment and order dated 28.01.2009 passed by the High Court of Judicature at Bombay, Nagpur Bench whereby the second appeal filed by the appellant was dismissed on the ground that no substantial question of law arose. 2. Brief facts of the case are that the parties owned agricultural land adjoining each other in Mouza Sirsi. The plaintiffs (Respondents before us) filed a suit claiming that the ancestral land of the plaintiffs was about 6.07 hectares, and to the south of the field of the plaintiffs lay the defendant?s (Appellant before us) field and the area of the land owned by the defendant was 4.23 hectares. A re¬survey was done in the year 1991 and in the re-survey the land of the defendant was shown to be 5.3 hectares, which was in excess by 1.07 hectares. 3. Thereafter, the plaintiffs filed an application before the Sub Divisional Officer (S.D.O. for short), Umrer, and got the field re¬ measured as per the old record. Thereafter, the S.D.O. by his order dated 31.07.2000 directed the Taluka Land Inspector for correction of revenue record whereby the original position of the field was restored. In the revenue record, the area and maps of the plaintiffs? field as well as 7/12 extract of the field of plaintiffs was corrected. 4. The case of the plaintiffs was that the defendant erected wire¬ fencing, encroached upon the land of the plaintiffs and, therefore, the suit was filed for possession of the land encroached by the defendant. 5. It would be pertinent to mention that an appeal was filed by the defendant against the order of the S.D.O. before the Settlement Commissioner who remanded the case to the S.D.O. for fresh inquiry and fresh order. The Superintendent of Land Record of Nagpur verified the spot on 27.11.2002 and submitted a proposal report to the S.D.O. Since the order passed was against the plaintiffs, therefore they had brought this suit for possession. 6. On 03.01.2005 the Civil Judge decreed the suit and held plaintiffs to be entitled to possession and directed the defendant to deliver the possession of the disputed land. Defendant filed a regular civil appeal challenging this order and the appeal was dismissed by the District and Sessions Judge on 03.05.2008. Challenging this, the appellant filed a second appeal which was dismissed by the High Court on 28.01.2009. All the courts have held that the defendant has encroached upon the land of the plaintiffs. These are pure finding of facts which cannot be interfered with in these proceedings. 7. It has been strenuously urged by the learned counsel for the appellant that, in fact, the boundary between the two fields contained trees and this was proved by the evidence on record. We are not impressed with this argument. If there was a boundary with trees, how can that be replaced with a fence? Another important fact is that despite repeated queries, learned counsel for the appellant could not explain as to how the land in their ownership and possession which prior to the re-survey was only 4.23 hectares got increased to 5.3 hectares. The only explanation given was that to straighten the boundary some land was exchanged with some relatives. No evidence was placed on record to prove this. 8. Two legal issues have been raised. The first is that the map has not been proved in accordance with Section 83 of the Indian Evidence Act, 1872. It is urged that the plaintiffs have not proved the map. On going through the records, we find that the map was prepared on the directions of the S.D.O. No doubt, after the map was prepared, the order of the S.D.O. directing for preparation of the map was set aside, but that will not affect the evidentiary value of the map which depicts the position of the boundaries as per the holdings of the parties. This map was prepared by the Revenue authorities and not by the plaintiffs/respondents. 9. The next objection raised is that under Section 138 of The Maharashtra Land Revenue Code, 1966 the suit is not maintainable. We find that this objection is totally without any merit. In fact, Section 138 clearly provides that a civil suit can be instituted against any order of ejectment. No provision has been pointed out where the jurisdiction of the civil court has been specifically barred.
### Response:
0
### Explanation:
We are not impressed with this argument. If there was a boundary with trees, how can that be replaced with a fence? Another important fact is that despite repeated queries, learned counsel for the appellant could not explain as to how the land in their ownership and possession which prior to the re-survey was only 4.23 hectares got increased to 5.3 hectares. The only explanation given was that to straighten the boundary some land was exchanged with some relatives. No evidence was placed on record to prove this.Two legal issues have been raised. The first is that the map has not been proved in accordance with Section 83 of the Indian Evidence Act, 1872. It is urged that the plaintiffs have not proved the map. On going through the records, we find that the map was prepared on the directions of the S.D.O. No doubt, after the map was prepared, the order of the S.D.O. directing for preparation of the map was set aside, but that will not affect the evidentiary value of the map which depicts the position of the boundaries as per the holdings of the parties. This map was prepared by the Revenue authorities and not by the plaintiffs/respondents.The next objection raised is that under Section 138 of The Maharashtra Land Revenue Code, 1966 the suit is not maintainable. We find that this objection is totally without any merit. In fact, Section 138 clearly provides that a civil suit can be instituted against any order of ejectment. No provision has been pointed out where the jurisdiction of the civil court has been specifically barred.
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M/S NARENDRAN SONS Vs. NATIONAL INSURANCE CO. LTD. 3 MIDDLETON STREET & ANR | 1. Leave granted. 2. The challenge in the present appeals is to an order passed by the National Consumer Disputes Redressal Commission (for short, NCDRC) on 06.10.2015, whereby the revision filed by the National Insurance Company Ltd. (for short, the Insurance Company) was allowed and the amount of compensation awarded by the State Consumer Disputes Redressal Commission (for short, the State Commission) of Rs. 7,59,660/- was reduced to Rs.4,06,125/-. 3. It is not necessary to state the facts in detail, but the facts in short are that the present appellant sent a consignment of 800 Hercules mats at the cost of US $ 13.4 per mat and 1300 Competitor mats at the cost of US $ 9 per mat, the total order value being US $ 22420 to a consignee in United States of America (USA). However, the goods got damaged during transit. The Insurance Company appointed M/s Ewig International Marine Corporation, an authorized Surveyor and settling agent of the Insurance Company in the USA. Keeping in view the report filed and the salvage value, the learned District Consumer Disputes Redressal Commission awarded a sum of Rs. 6,02,775/-. Both, the Insurance as well as the appellant availed the remedy of appeal before the State Commission. The State Commission returned a finding of fact that the loss suffered by the appellant amounted to Rs. 7,59,660/- while allowing the appeal filed by the appellant and dismissing the appeal of the Insurance Company. The Insurance Company filed two revisions before the NCDRC. Such revisions were allowed and the amount of compensation reduced to Rs. 4,06,125/-. 4. We have heard the learned counsel for the parties and find that the jurisdiction of NCDRC under Section 21(b) of the Consumer Protection Act, 1986 is akin to the revisional jurisdiction conferred under the Code of Civil Procedure, 1908. Section 21 of the Consumer Protection Act, 1986 is reproduced hereunder:- 21. Jurisdiction of the National Commission - Subject to the other provisions of this Act, the National Commission shall have jurisdiction — (a) to entertain — (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and (ii) appeals against the orders of any State Commission; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. 5. The NCDRC could interfere with the order of the State Commission if it finds that the State Commission has exercised jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity. However, the order of NCDRC does not show that any of the parameters contemplated under Section 21 of the Act were satisfied by NCDRC to exercise its revisional jurisdiction to set aside the order passed by the State Commission. The NCDRC has exercised a jurisdiction examining the question of fact again as a court of appeal, which was not the jurisdiction vested in it. | 1[ds]4. We have heard the learned counsel for the parties and find that the jurisdiction of NCDRC under Section 21(b) of the Consumer Protection Act, 1986 is akin to the revisional jurisdiction conferred under the Code of Civil Procedure, 1908.5. The NCDRC could interfere with the order of the State Commission if it finds that the State Commission has exercised jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity. However, the order of NCDRC does not show that any of the parameters contemplated under Section 21 of the Act were satisfied by NCDRC to exercise its revisional jurisdiction to set aside the order passed by the State Commission. The NCDRC has exercised a jurisdiction examining the question of fact again as a court of appeal, which was not the jurisdiction vested in it. | 1 | 622 | 170 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
1. Leave granted. 2. The challenge in the present appeals is to an order passed by the National Consumer Disputes Redressal Commission (for short, NCDRC) on 06.10.2015, whereby the revision filed by the National Insurance Company Ltd. (for short, the Insurance Company) was allowed and the amount of compensation awarded by the State Consumer Disputes Redressal Commission (for short, the State Commission) of Rs. 7,59,660/- was reduced to Rs.4,06,125/-. 3. It is not necessary to state the facts in detail, but the facts in short are that the present appellant sent a consignment of 800 Hercules mats at the cost of US $ 13.4 per mat and 1300 Competitor mats at the cost of US $ 9 per mat, the total order value being US $ 22420 to a consignee in United States of America (USA). However, the goods got damaged during transit. The Insurance Company appointed M/s Ewig International Marine Corporation, an authorized Surveyor and settling agent of the Insurance Company in the USA. Keeping in view the report filed and the salvage value, the learned District Consumer Disputes Redressal Commission awarded a sum of Rs. 6,02,775/-. Both, the Insurance as well as the appellant availed the remedy of appeal before the State Commission. The State Commission returned a finding of fact that the loss suffered by the appellant amounted to Rs. 7,59,660/- while allowing the appeal filed by the appellant and dismissing the appeal of the Insurance Company. The Insurance Company filed two revisions before the NCDRC. Such revisions were allowed and the amount of compensation reduced to Rs. 4,06,125/-. 4. We have heard the learned counsel for the parties and find that the jurisdiction of NCDRC under Section 21(b) of the Consumer Protection Act, 1986 is akin to the revisional jurisdiction conferred under the Code of Civil Procedure, 1908. Section 21 of the Consumer Protection Act, 1986 is reproduced hereunder:- 21. Jurisdiction of the National Commission - Subject to the other provisions of this Act, the National Commission shall have jurisdiction — (a) to entertain — (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and (ii) appeals against the orders of any State Commission; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. 5. The NCDRC could interfere with the order of the State Commission if it finds that the State Commission has exercised jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity. However, the order of NCDRC does not show that any of the parameters contemplated under Section 21 of the Act were satisfied by NCDRC to exercise its revisional jurisdiction to set aside the order passed by the State Commission. The NCDRC has exercised a jurisdiction examining the question of fact again as a court of appeal, which was not the jurisdiction vested in it.
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1
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4. We have heard the learned counsel for the parties and find that the jurisdiction of NCDRC under Section 21(b) of the Consumer Protection Act, 1986 is akin to the revisional jurisdiction conferred under the Code of Civil Procedure, 1908.5. The NCDRC could interfere with the order of the State Commission if it finds that the State Commission has exercised jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity. However, the order of NCDRC does not show that any of the parameters contemplated under Section 21 of the Act were satisfied by NCDRC to exercise its revisional jurisdiction to set aside the order passed by the State Commission. The NCDRC has exercised a jurisdiction examining the question of fact again as a court of appeal, which was not the jurisdiction vested in it.
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Krothapalli Satyanarayana Vs. Koganti Ramaiah and Others | of the space so that the plaintiff can have a full use of the passage. In reaching this conclusion, the learned Judge implicitly relied upon the reports and the maps submitted by Court Commissioners and recorded a specific finding that defendants 2 and 3 have encroached in to the suit passage to an extent of 21 1/2" on the southern side and 8" on the northern side by constructing a wall and also by placing a Tandu adjacent and to the west of the compound wall. The learned Munsif accordingly directed removal of encroachment. The suit against the other defendants was dismissed.5. Defendants 2 and 3 preferred A. S. No. 110 of 1973 in the Court of the Subordinate Judge, Tenali. The learned appellate Judge held that the wall W W-1 was constructed by defendant 2 and 3 in 1956 while the plaintiff filed the suit for mandatory injunction in 1965. The learned Judge also held that in the plaint as originally filed, there was no prayer for removal of the wall on the ground that it constitutes an encroachment on the passage land and that this was added by an amendment to the plaint in 1969 after the report of the first Commissioner was received. The learned Judge then held that this delay on the part of the plaintiff in approaching the court for such discretionary relief of mandatory injunction is sufficient to deny him the relief for removal of wall on the maxim that delay defeats equity. The learned Judge accordingly moulded his relief in para 40 of the judgment as under :In view of my finding on point No. 4 the appeal is allowed to that extent only viz., with regard to the relief of mandatory injunction for removing the wall W W-1. With regard to the other reliefs the judgment and decree of the lower court are confirmed and the appeal is dismissed with costs.The net effect of the judgment is that even though construction of the wall W W-1 by defendants 2 and 3 constituted an encroachment in land used for passage, the plaintiff was held to be disentitled to a relief of removal of encroachment but the raising of the level by spreading of Tandu in a portion of land to the west W W-1 was held to be an encroachment and which the defendants 2 and 3 were directed to remove and keep the passage open.6. Plaintiff preferred Second Appeal No. 68 of 1977 in the High Court of Judicature, Andhra Pradesh at Hyderabad. The learned single Judge before whom the appeal came up for hearing observed that the wall W W-1 by which the passage was encroached upon was constructed in 1956 and the suit for removal of the same filed in 1965 and if in these circumstances the learned appellate Judge was disinclined to grant a discretionary relief of mandatory injunction on the ground that the plaintiff had acquiesced in it, no case is made out for interfering with the same. So saying the learned Judge dismissed the second appeal.7. The plaintiff has filed this appeal by special leave.8. The sketch Annexure-I shows the situation of the wall W W W-1, the house of defendants 2 and 3 as well as the house of the plaintiff. Plaintiffs house abuts on the passage and it is adjacent and to the south off the house of the plaintiff. This passage appears to be the only access the plaintiff has from his house to the road beyond the point G-1 and G-2 and marked as R in the sketch. The question is whether any case is made out for removal of the wall which appears to have been constructed in 1956 i.e. about 27 years back. If there is an encroachment and if the suit is brought within the period of limitation, ordinarily the relief ought to be granted, save and except where the plaintiff has disentitled himself to a discretionary relief by his conduct. In this case both the appellate Court and the High Court have concurrently held that the plaintiff was guilty of acquiescence in that even though the wall was constructed to his knowledge in 1956, he approached the court in 19656 and even in that year he did not seek the prayer for removal of wall which prayer was for the first time introduced in 1969. In this background, we are not inclined to entertain the submission on behalf of the plaintiff-appellant that defendants 2 and 3 should be directed to remove the wall W W-1 and clear that passage of encroachment. But at any rate, defendants 2 and 3 are not entitled to dumping of Tandu adjacent and to the west of the wall in the name of a support to the wall and thereby further reduce the width of the passage. Therefore, having heard learned counsel on both sides, we are satisfied that original defendants 2 and 3 should remove Tandu or any dumping of earth just adjacent and to the west of the wall W W-1 and keep the passage of the width between G-1 and W-1 open encroached and of the same level for passing and repassing including the passing of the cart, animals and vehicles. We direct that no an inch of land beyond the wall W W-1 to the west shall be used or enjoyed by defendants 2 and 3 and the whole of the passage of the width between G-1 and W upto W-1 shall be kept open by removal of encroachment including the dumping of Tandu or any earth filling to be used as passage. We grant mandatory injunction to that extent and direct that the defendants shall remove the encroachment within four weeks from today failing which the Court shall get it removed at the cost of the defendants 2 and 3. A fair copy of the sketch at page 77 of the record (Annexure 1) should be annexed to this judgment and should be treated as part of the judgment. | 1[ds]8. The sketchshows the situation of the wall W Wthe house of defendants 2 and 3 as well as the house of the plaintiff. Plaintiffs house abuts on the passage and it is adjacent and to the south off the house of the plaintiff. This passage appears to be the only access the plaintiff has from his house to the road beyond the pointand marked as R in the sketch. The question is whether any case is made out for removal of the wall which appears to have been constructed in 1956 i.e. about 27 years back. If there is an encroachment and if the suit is brought within the period of limitation, ordinarily the relief ought to be granted, save and except where the plaintiff has disentitled himself to a discretionary relief by his conduct. In this case both the appellate Court and the High Court have concurrently held that the plaintiff was guilty of acquiescence in that even though the wall was constructed to his knowledge in 1956, he approached the court in 19656 and even in that year he did not seek the prayer for removal of wall which prayer was for the first time introduced in 1969. In this background, we are not inclined to entertain the submission on behalf of thethat defendants 2 and 3 should be directed to remove the wall Wand clear that passage of encroachment. But at any rate, defendants 2 and 3 are not entitled to dumping of Tandu adjacent and to the west of the wall in the name of a support to the wall and thereby further reduce the width of the passage. Therefore, having heard learned counsel on both sides, we are satisfied that original defendants 2 and 3 should remove Tandu or any dumping of earth just adjacent and to the west of the wall Wand keep the passage of the width betweenopen encroached and of the same level for passing and repassing including the passing of the cart, animals and vehicles. We direct that no an inch of land beyond the wall Wto the west shall be used or enjoyed by defendants 2 and 3 and the whole of the passage of the width betweenand W uptoshall be kept open by removal of encroachment including the dumping of Tandu or any earth filling to be used as passage. We grant mandatory injunction to that extent and direct that the defendants shall remove the encroachment within four weeks from today failing which the Court shall get it removed at the cost of the defendants 2 and 3. A fair copy of the sketch at page 77 of the record (Annexure 1) should be annexed to this judgment and should be treated as part of the judgment. | 1 | 1,354 | 487 | ### 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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of the space so that the plaintiff can have a full use of the passage. In reaching this conclusion, the learned Judge implicitly relied upon the reports and the maps submitted by Court Commissioners and recorded a specific finding that defendants 2 and 3 have encroached in to the suit passage to an extent of 21 1/2" on the southern side and 8" on the northern side by constructing a wall and also by placing a Tandu adjacent and to the west of the compound wall. The learned Munsif accordingly directed removal of encroachment. The suit against the other defendants was dismissed.5. Defendants 2 and 3 preferred A. S. No. 110 of 1973 in the Court of the Subordinate Judge, Tenali. The learned appellate Judge held that the wall W W-1 was constructed by defendant 2 and 3 in 1956 while the plaintiff filed the suit for mandatory injunction in 1965. The learned Judge also held that in the plaint as originally filed, there was no prayer for removal of the wall on the ground that it constitutes an encroachment on the passage land and that this was added by an amendment to the plaint in 1969 after the report of the first Commissioner was received. The learned Judge then held that this delay on the part of the plaintiff in approaching the court for such discretionary relief of mandatory injunction is sufficient to deny him the relief for removal of wall on the maxim that delay defeats equity. The learned Judge accordingly moulded his relief in para 40 of the judgment as under :In view of my finding on point No. 4 the appeal is allowed to that extent only viz., with regard to the relief of mandatory injunction for removing the wall W W-1. With regard to the other reliefs the judgment and decree of the lower court are confirmed and the appeal is dismissed with costs.The net effect of the judgment is that even though construction of the wall W W-1 by defendants 2 and 3 constituted an encroachment in land used for passage, the plaintiff was held to be disentitled to a relief of removal of encroachment but the raising of the level by spreading of Tandu in a portion of land to the west W W-1 was held to be an encroachment and which the defendants 2 and 3 were directed to remove and keep the passage open.6. Plaintiff preferred Second Appeal No. 68 of 1977 in the High Court of Judicature, Andhra Pradesh at Hyderabad. The learned single Judge before whom the appeal came up for hearing observed that the wall W W-1 by which the passage was encroached upon was constructed in 1956 and the suit for removal of the same filed in 1965 and if in these circumstances the learned appellate Judge was disinclined to grant a discretionary relief of mandatory injunction on the ground that the plaintiff had acquiesced in it, no case is made out for interfering with the same. So saying the learned Judge dismissed the second appeal.7. The plaintiff has filed this appeal by special leave.8. The sketch Annexure-I shows the situation of the wall W W W-1, the house of defendants 2 and 3 as well as the house of the plaintiff. Plaintiffs house abuts on the passage and it is adjacent and to the south off the house of the plaintiff. This passage appears to be the only access the plaintiff has from his house to the road beyond the point G-1 and G-2 and marked as R in the sketch. The question is whether any case is made out for removal of the wall which appears to have been constructed in 1956 i.e. about 27 years back. If there is an encroachment and if the suit is brought within the period of limitation, ordinarily the relief ought to be granted, save and except where the plaintiff has disentitled himself to a discretionary relief by his conduct. In this case both the appellate Court and the High Court have concurrently held that the plaintiff was guilty of acquiescence in that even though the wall was constructed to his knowledge in 1956, he approached the court in 19656 and even in that year he did not seek the prayer for removal of wall which prayer was for the first time introduced in 1969. In this background, we are not inclined to entertain the submission on behalf of the plaintiff-appellant that defendants 2 and 3 should be directed to remove the wall W W-1 and clear that passage of encroachment. But at any rate, defendants 2 and 3 are not entitled to dumping of Tandu adjacent and to the west of the wall in the name of a support to the wall and thereby further reduce the width of the passage. Therefore, having heard learned counsel on both sides, we are satisfied that original defendants 2 and 3 should remove Tandu or any dumping of earth just adjacent and to the west of the wall W W-1 and keep the passage of the width between G-1 and W-1 open encroached and of the same level for passing and repassing including the passing of the cart, animals and vehicles. We direct that no an inch of land beyond the wall W W-1 to the west shall be used or enjoyed by defendants 2 and 3 and the whole of the passage of the width between G-1 and W upto W-1 shall be kept open by removal of encroachment including the dumping of Tandu or any earth filling to be used as passage. We grant mandatory injunction to that extent and direct that the defendants shall remove the encroachment within four weeks from today failing which the Court shall get it removed at the cost of the defendants 2 and 3. A fair copy of the sketch at page 77 of the record (Annexure 1) should be annexed to this judgment and should be treated as part of the judgment.
### Response:
1
### Explanation:
8. The sketchshows the situation of the wall W Wthe house of defendants 2 and 3 as well as the house of the plaintiff. Plaintiffs house abuts on the passage and it is adjacent and to the south off the house of the plaintiff. This passage appears to be the only access the plaintiff has from his house to the road beyond the pointand marked as R in the sketch. The question is whether any case is made out for removal of the wall which appears to have been constructed in 1956 i.e. about 27 years back. If there is an encroachment and if the suit is brought within the period of limitation, ordinarily the relief ought to be granted, save and except where the plaintiff has disentitled himself to a discretionary relief by his conduct. In this case both the appellate Court and the High Court have concurrently held that the plaintiff was guilty of acquiescence in that even though the wall was constructed to his knowledge in 1956, he approached the court in 19656 and even in that year he did not seek the prayer for removal of wall which prayer was for the first time introduced in 1969. In this background, we are not inclined to entertain the submission on behalf of thethat defendants 2 and 3 should be directed to remove the wall Wand clear that passage of encroachment. But at any rate, defendants 2 and 3 are not entitled to dumping of Tandu adjacent and to the west of the wall in the name of a support to the wall and thereby further reduce the width of the passage. Therefore, having heard learned counsel on both sides, we are satisfied that original defendants 2 and 3 should remove Tandu or any dumping of earth just adjacent and to the west of the wall Wand keep the passage of the width betweenopen encroached and of the same level for passing and repassing including the passing of the cart, animals and vehicles. We direct that no an inch of land beyond the wall Wto the west shall be used or enjoyed by defendants 2 and 3 and the whole of the passage of the width betweenand W uptoshall be kept open by removal of encroachment including the dumping of Tandu or any earth filling to be used as passage. We grant mandatory injunction to that extent and direct that the defendants shall remove the encroachment within four weeks from today failing which the Court shall get it removed at the cost of the defendants 2 and 3. A fair copy of the sketch at page 77 of the record (Annexure 1) should be annexed to this judgment and should be treated as part of the judgment.
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Mahadeva Upendra Sinai Etc Vs. Union of India & Others | mechanism provided in that Act. After the promulgation of the 1950 Order, the only difficulty that remained was caused by the different rates at which depreciation had actually been taken into account and allowed under the Hyderabad Income-tax Act. The Explanation added by the 1956 Order, in effect, did no more than explaining that in paragraph 2 of 1950 Order, "all depreciation actually taken into account by the Income-tax Officer in computing the written down value under the Hyderabad Income-tax Act means " all depreciation actually allowed."60. As has been said already and it needs to be said again, the words "depreciation actually allowed" in Section 43 (6) (b) connote depreciation that has actually been taken into account and given effect to by the Income-tax authorities in the computation of the profits and gains of the business in assessing income-tax for earlier years. The said Explanation did not change that basic connotation, it only clarified it. Thus, in issuing the 1950 Order and the 1956 Order, adding the Explanation, the Central Government in that case, did not over-step the limits of the power delegated to it under Section 12 of the Finance Act, 1950. The impugned provision in the D. B. Ram Gopal Mills case (1961) a SCR 318 = (AIR 1961 SC 338 ) (supra) corresponds to clause (2) and Explanation (a) thereto of the 1949 Order and the substantive part of clause (3) of the 1970 Order; it is not analogous to the impugned Proviso in the instant case.61. The situation before us is materially different. Here, no depreciation was ever computed or actually allowed to the assessees under the Portuguese Law. Indeed, under that law the tax was levied not on net income but on gross turnover of the business. There was, strictly speaking, no assessment of tax on real "profits and gains" of a business, the tax being levied on gross receipts on ad hoc basis. Allowing or taking into account depreciation of assets was out of question in that process of assessment. In the case in hand, the impugned Proviso seeks to introduce a new concept of calculating depreciation. By replacing "depreciation actually allowed" with "depreciation deemed to have been allowed" by a fiction of law, even where no depreciation was at all allowed under any law outside the taxation territories, it, in effect, attempts to change the fundamental scheme of the Act.62. D. B. Ramgopal Mills case (1961) 2 SCR SIB = (AIR 1961 SC 338 ) (supra) was noticed, explained and distinguished in Straw Products Ltds case (1968) 2 SCR 1 = (AIR 1968 SC 579 ) (supra). It was observed that the former did not support the view that the arising of a difficulty is a matter for the subjective satisfaction of the Central Government. The precedent case is not in pari materia with D. B. Ram Gopal Mills case. It is in line with (1968) 2 SCR 1 = (AIR 1968 SC 579 ) and the ratio of the latter decision and the observations made therein with regard to the then impugned Order of l962 apply with full force to the impugned Proviso in the instant case.63. In the light of what has been said above, we accept contention (1) and (2) advanced on behalf of the petitioners.64. Be that as it may, the last contention canvassed by Mr. Palkhiwala is a clincher. The argument is that the impugned Proviso is not workable, because under the Portuguese law there was no tax on income at all. These, Territories were merged with India on December19.1961 and the Indian Income-tax Act was extended to these Territories from April 1, 1963. During this interregnum, it is contended, there was no law either Portuguese or Indian, under which the income of those prior years could be computed. If there is a loss, or profit is inadequate to absorb the depreciation, the latter can be carried forward without limit of time. Owing to the absence of any tax law during the aforesaid interregnum, proceeds the argument, the petitioners would not have the benefit of "carry-forward" of depreciation from any year prior to l963, and, thus, the impugned Proviso instead of removing any difficulty, would create serious difficulties and legal complications.65. There is a good deal of force in this contention.66. It has been noticed earlier that the tax imposed under the Portuguese law was, in reality, a turn-over tax and not a tax on the income of a business. The levy was exacted on gross receipts, irrespective of loss or profit. Thereafter, during the interregnum between December 19, 1961 and April 1, 1963, there was in force no law authorising the levy of income-tax in these Territories. We have also seen that under the Act an assessee is entitled to carry-forward unabsorbed depreciation in case of loss or inadequate profits without any time-limit (Section 32 (2)). For ensuring this right to an assessee, assessments for ascertaining losses or insufficiency of profits of his business, since the acquisition and use of the assets by him will have to be made. In the Indian Income-tax Act as extended to these Union Territories, there is no provision for making assessment in respect of those past years. Therefore a Goa assessee who made losses and suffered depreciation of his assets will never get the benefit of such carry-forward, as no machinery exists for determining inadequacy of profits or the factum of losses in those years which is a condition precedent to carry forward of depreciation. Retrospective assessments for this purpose, going back to a period prior to 1963 could have been made, if at all, under a law made by Parliament and not under an executive fiat. In the absence of such law it is impossible to work the Proviso without riding roughshod over the rights of the assessees to have their unabsorbed depreciation relating to pre-1963 period, carried forward. Viewed from this angle, the impugned Proviso would, in the implementation of the Act, create difficulties rather than removing them. | 1[ds]24. The pivot of the definition of written-down value" is the "actual cost" of the assets. Where the asset was acquired and also used for the business in the previous year, such value would be its full actual cost and depreciation for that year would be allowed at the prescribed rate on such cost. In subsequent year, depreciation would be calculated on the basis of actual cost less depreciation actually allowed. The key word in Cl. (b) is "actually." It is the anti-thesis of that which is merely speculative, theoretical or imaginary."Actually" contra-indicates a deeming construction of the word "allowed" which it qualifies. The connotation of the phrase "actually allowed" is thus limited to depreciationactually taken into account or granted and given effect to,i. e. debited by the Income-tax Officer against the incomings of the business in computing the taxable income of the assessee: it cannot be stretched to mean "notionally allowed" or merely allowable on a notional basis.25. Of course, any depreciation carried forward under Section 32 (2) is, in view of Explanation 3 to Section 43 (6) considered as depreciation "actually allowed." But such is not the case here.26. From the above conspectus, it is clear that the essence of the scheme of the Indian Income-tax Act is, that depreciation is allowed, year after year, on theactual costof the assets as reduced by depreciationactually allowedin earlier years. It follows, therefore, that even in the case of assets acquired before the previous year, where in the past no depreciation was computed, actually allowed or carried forward, for no fault of the assessee,the "written-down value" may under clause (b) of S. 43 (6), also, be the actual cost of the assets to the assessee.True, that under the income. tax law of the merged State, depreciation was allowable, and 1962 Order, Explanation (b) was intended to cover cases where no depreciation was actually allowed on account of the exemption of the assessee from tax under a State law or a rule or under an agreement with the Ruler of a merged State (whose word was law) whereas in the instant case depreciation was not allowed because it was not computed under the Portuguese Law. But this is a distinction without a difference.As noticed already, the Portuguese law was not a law imposing tax on net income. That law levied tax on gross-receipts and not on the profits and gains-of a business. It would not be wrong to say that before the merger, in these territories, there was no income tax in the sense the tax is understood under the Indian Income-tax Act. In principle, therefore, there would be no difference between a case where one person is exempted from income-tax under the law, and a case where all are exempted, there being no income-tax law.55. We are unable to accept the contention that but for the impugned Proviso, the provisions of Section 32 and Section 43 (6) (b) of the l961 Act on its extension to Goa, Daman and Diu could not be given effect to and applied to the assessees in those territories. There could be no difficulty in computing the written-down value of the assets that had been acquired by the petitioners before the previous year, under clause (b) of Section 43 (6). Since no depreciation was, in fact, allowed to the petitioners in the past under the Portuguese law in the first assessment under the Indian Income-tax Act, the written down value would, under this clause (b) work out to be the actual cost of the assets less nil. Thereafter, in each succeeding year the depreciation actually allowed in the preceding year would be deducted causing yearly diminution of the written down value with consequent decrease in the depreciation allowed on that basis. Exactly, this was the manner in which the written down value of the assets of the petitioners has been computed and depreciation allowed for several assessment years from l964-65 onwards. This itself demonstrates that there was no difficulty in applying the aforesaid provisions to the cases of these assessees.56. We find no merit in the argument that the impugned Proviso brings about equality of treatment among different assessees in India. The law on the point was declared by this Court in Straw Products Ltd.s case (1968) 2 SCR 1 = (AIR 1968 SC 579 ) about seven years back. If that decision did not correctly interpret the intendment of the Legislature, the Parliament would have nullified its effect by legislation. As a result, no assessee in the Territories of the erstwhile Part B States and merged States has suffered the disadvantage of depreciation being deducted on notional basis in determining the written down value, when in fact, no depreciation had been actually allowed under the former local laws. Similarly, no assessee in British India suffered such fictional deduction of depreciation when it had not been actually allowed earlier. The impugned Proviso, therefore, far from ensuring parity of treatment puts the assessee in these Union Territories in a rosy position than the assessees in the rest of India.The situation before us is materially different. Here, no depreciation was ever computed or actually allowed to the assessees under the Portuguese Law. Indeed, under that law the tax was levied not on net income but on gross turnover of the business. There was, strictly speaking, no assessment of tax on real "profits and gains" of a business, the tax being levied on gross receipts on ad hoc basis. Allowing or taking into account depreciation of assets was out of question in that process of assessment. In the case in hand, the impugned Proviso seeks to introduce a new concept of calculating depreciation. By replacing "depreciation actually allowed" with "depreciation deemed to have been allowed" by a fiction of law, even where no depreciation was at all allowed under any law outside the taxation territories, it, in effect, attempts to change the fundamental scheme of the Act.In the light of what has been said above, we accept contention (1) and (2) advanced on behalf of the petitioners.It has been noticed earlier that the tax imposed under the Portuguese law was, in reality, a turn-over tax and not a tax on the income of a business. The levy was exacted on gross receipts, irrespective of loss or profit. Thereafter, during the interregnum between December 19, 1961 and April 1, 1963, there was in force no law authorising the levy of income-tax in these Territories. We have also seen that under the Act an assessee is entitled to carry-forward unabsorbed depreciation in case of loss or inadequate profits without any time-limit (Section 32 (2)). For ensuring this right to an assessee, assessments for ascertaining losses or insufficiency of profits of his business, since the acquisition and use of the assets by him will have to be made. In the Indian Income-tax Act as extended to these Union Territories, there is no provision for making assessment in respect of those past years. Therefore a Goa assessee who made losses and suffered depreciation of his assets will never get the benefit of such carry-forward, as no machinery exists for determining inadequacy of profits or the factum of losses in those years which is a condition precedent to carry forward of depreciation. Retrospective assessments for this purpose, going back to a period prior to 1963 could have been made, if at all, under a law made by Parliament and not under an executive fiat. In the absence of such law it is impossible to work the Proviso without riding roughshod over the rights of the assessees to have their unabsorbed depreciation relating to pre-1963 period, carried forward. Viewed from this angle, the impugned Proviso would, in the implementation of the Act, create difficulties rather than removing them. | 1 | 13,518 | 1,480 | ### 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:
mechanism provided in that Act. After the promulgation of the 1950 Order, the only difficulty that remained was caused by the different rates at which depreciation had actually been taken into account and allowed under the Hyderabad Income-tax Act. The Explanation added by the 1956 Order, in effect, did no more than explaining that in paragraph 2 of 1950 Order, "all depreciation actually taken into account by the Income-tax Officer in computing the written down value under the Hyderabad Income-tax Act means " all depreciation actually allowed."60. As has been said already and it needs to be said again, the words "depreciation actually allowed" in Section 43 (6) (b) connote depreciation that has actually been taken into account and given effect to by the Income-tax authorities in the computation of the profits and gains of the business in assessing income-tax for earlier years. The said Explanation did not change that basic connotation, it only clarified it. Thus, in issuing the 1950 Order and the 1956 Order, adding the Explanation, the Central Government in that case, did not over-step the limits of the power delegated to it under Section 12 of the Finance Act, 1950. The impugned provision in the D. B. Ram Gopal Mills case (1961) a SCR 318 = (AIR 1961 SC 338 ) (supra) corresponds to clause (2) and Explanation (a) thereto of the 1949 Order and the substantive part of clause (3) of the 1970 Order; it is not analogous to the impugned Proviso in the instant case.61. The situation before us is materially different. Here, no depreciation was ever computed or actually allowed to the assessees under the Portuguese Law. Indeed, under that law the tax was levied not on net income but on gross turnover of the business. There was, strictly speaking, no assessment of tax on real "profits and gains" of a business, the tax being levied on gross receipts on ad hoc basis. Allowing or taking into account depreciation of assets was out of question in that process of assessment. In the case in hand, the impugned Proviso seeks to introduce a new concept of calculating depreciation. By replacing "depreciation actually allowed" with "depreciation deemed to have been allowed" by a fiction of law, even where no depreciation was at all allowed under any law outside the taxation territories, it, in effect, attempts to change the fundamental scheme of the Act.62. D. B. Ramgopal Mills case (1961) 2 SCR SIB = (AIR 1961 SC 338 ) (supra) was noticed, explained and distinguished in Straw Products Ltds case (1968) 2 SCR 1 = (AIR 1968 SC 579 ) (supra). It was observed that the former did not support the view that the arising of a difficulty is a matter for the subjective satisfaction of the Central Government. The precedent case is not in pari materia with D. B. Ram Gopal Mills case. It is in line with (1968) 2 SCR 1 = (AIR 1968 SC 579 ) and the ratio of the latter decision and the observations made therein with regard to the then impugned Order of l962 apply with full force to the impugned Proviso in the instant case.63. In the light of what has been said above, we accept contention (1) and (2) advanced on behalf of the petitioners.64. Be that as it may, the last contention canvassed by Mr. Palkhiwala is a clincher. The argument is that the impugned Proviso is not workable, because under the Portuguese law there was no tax on income at all. These, Territories were merged with India on December19.1961 and the Indian Income-tax Act was extended to these Territories from April 1, 1963. During this interregnum, it is contended, there was no law either Portuguese or Indian, under which the income of those prior years could be computed. If there is a loss, or profit is inadequate to absorb the depreciation, the latter can be carried forward without limit of time. Owing to the absence of any tax law during the aforesaid interregnum, proceeds the argument, the petitioners would not have the benefit of "carry-forward" of depreciation from any year prior to l963, and, thus, the impugned Proviso instead of removing any difficulty, would create serious difficulties and legal complications.65. There is a good deal of force in this contention.66. It has been noticed earlier that the tax imposed under the Portuguese law was, in reality, a turn-over tax and not a tax on the income of a business. The levy was exacted on gross receipts, irrespective of loss or profit. Thereafter, during the interregnum between December 19, 1961 and April 1, 1963, there was in force no law authorising the levy of income-tax in these Territories. We have also seen that under the Act an assessee is entitled to carry-forward unabsorbed depreciation in case of loss or inadequate profits without any time-limit (Section 32 (2)). For ensuring this right to an assessee, assessments for ascertaining losses or insufficiency of profits of his business, since the acquisition and use of the assets by him will have to be made. In the Indian Income-tax Act as extended to these Union Territories, there is no provision for making assessment in respect of those past years. Therefore a Goa assessee who made losses and suffered depreciation of his assets will never get the benefit of such carry-forward, as no machinery exists for determining inadequacy of profits or the factum of losses in those years which is a condition precedent to carry forward of depreciation. Retrospective assessments for this purpose, going back to a period prior to 1963 could have been made, if at all, under a law made by Parliament and not under an executive fiat. In the absence of such law it is impossible to work the Proviso without riding roughshod over the rights of the assessees to have their unabsorbed depreciation relating to pre-1963 period, carried forward. Viewed from this angle, the impugned Proviso would, in the implementation of the Act, create difficulties rather than removing them.
### Response:
1
### Explanation:
allowable, and 1962 Order, Explanation (b) was intended to cover cases where no depreciation was actually allowed on account of the exemption of the assessee from tax under a State law or a rule or under an agreement with the Ruler of a merged State (whose word was law) whereas in the instant case depreciation was not allowed because it was not computed under the Portuguese Law. But this is a distinction without a difference.As noticed already, the Portuguese law was not a law imposing tax on net income. That law levied tax on gross-receipts and not on the profits and gains-of a business. It would not be wrong to say that before the merger, in these territories, there was no income tax in the sense the tax is understood under the Indian Income-tax Act. In principle, therefore, there would be no difference between a case where one person is exempted from income-tax under the law, and a case where all are exempted, there being no income-tax law.55. We are unable to accept the contention that but for the impugned Proviso, the provisions of Section 32 and Section 43 (6) (b) of the l961 Act on its extension to Goa, Daman and Diu could not be given effect to and applied to the assessees in those territories. There could be no difficulty in computing the written-down value of the assets that had been acquired by the petitioners before the previous year, under clause (b) of Section 43 (6). Since no depreciation was, in fact, allowed to the petitioners in the past under the Portuguese law in the first assessment under the Indian Income-tax Act, the written down value would, under this clause (b) work out to be the actual cost of the assets less nil. Thereafter, in each succeeding year the depreciation actually allowed in the preceding year would be deducted causing yearly diminution of the written down value with consequent decrease in the depreciation allowed on that basis. Exactly, this was the manner in which the written down value of the assets of the petitioners has been computed and depreciation allowed for several assessment years from l964-65 onwards. This itself demonstrates that there was no difficulty in applying the aforesaid provisions to the cases of these assessees.56. We find no merit in the argument that the impugned Proviso brings about equality of treatment among different assessees in India. The law on the point was declared by this Court in Straw Products Ltd.s case (1968) 2 SCR 1 = (AIR 1968 SC 579 ) about seven years back. If that decision did not correctly interpret the intendment of the Legislature, the Parliament would have nullified its effect by legislation. As a result, no assessee in the Territories of the erstwhile Part B States and merged States has suffered the disadvantage of depreciation being deducted on notional basis in determining the written down value, when in fact, no depreciation had been actually allowed under the former local laws. Similarly, no assessee in British India suffered such fictional deduction of depreciation when it had not been actually allowed earlier. The impugned Proviso, therefore, far from ensuring parity of treatment puts the assessee in these Union Territories in a rosy position than the assessees in the rest of India.The situation before us is materially different. Here, no depreciation was ever computed or actually allowed to the assessees under the Portuguese Law. Indeed, under that law the tax was levied not on net income but on gross turnover of the business. There was, strictly speaking, no assessment of tax on real "profits and gains" of a business, the tax being levied on gross receipts on ad hoc basis. Allowing or taking into account depreciation of assets was out of question in that process of assessment. In the case in hand, the impugned Proviso seeks to introduce a new concept of calculating depreciation. By replacing "depreciation actually allowed" with "depreciation deemed to have been allowed" by a fiction of law, even where no depreciation was at all allowed under any law outside the taxation territories, it, in effect, attempts to change the fundamental scheme of the Act.In the light of what has been said above, we accept contention (1) and (2) advanced on behalf of the petitioners.It has been noticed earlier that the tax imposed under the Portuguese law was, in reality, a turn-over tax and not a tax on the income of a business. The levy was exacted on gross receipts, irrespective of loss or profit. Thereafter, during the interregnum between December 19, 1961 and April 1, 1963, there was in force no law authorising the levy of income-tax in these Territories. We have also seen that under the Act an assessee is entitled to carry-forward unabsorbed depreciation in case of loss or inadequate profits without any time-limit (Section 32 (2)). For ensuring this right to an assessee, assessments for ascertaining losses or insufficiency of profits of his business, since the acquisition and use of the assets by him will have to be made. In the Indian Income-tax Act as extended to these Union Territories, there is no provision for making assessment in respect of those past years. Therefore a Goa assessee who made losses and suffered depreciation of his assets will never get the benefit of such carry-forward, as no machinery exists for determining inadequacy of profits or the factum of losses in those years which is a condition precedent to carry forward of depreciation. Retrospective assessments for this purpose, going back to a period prior to 1963 could have been made, if at all, under a law made by Parliament and not under an executive fiat. In the absence of such law it is impossible to work the Proviso without riding roughshod over the rights of the assessees to have their unabsorbed depreciation relating to pre-1963 period, carried forward. Viewed from this angle, the impugned Proviso would, in the implementation of the Act, create difficulties rather than removing them.
|
Commissioner, M.P. Housing Board & Others Vs. M/s. Mohanlal & Company | gets attracted. Section 14(1) of the Act, which is relevant for the present purpose, reads as follows: "14. Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." 16. In Consolidated Engineering Enterprises (supra), the Court, while dealing with the conditions in which Section 14 will be applicable, enumerated five conditions which are as follows:- "(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court." In the said case, it has also been stated that:- "... While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. ..." 17. From the aforesaid passage, it is clear as noon day that there has to be a liberal interpretation to advance the cause of justice. However, it has also been laid down that it would be applicable in cases of mistaken remedy or selection of a wrong forum. As per the conditions enumerated, the earlier proceeding and the latter proceeding must relate to the same matter in issue. It is worthy to mention here that the words "matter in issue" are used under Section 11 of the Code of Civil Procedure, 1908. As has been held in Ramadhar Shrivas v. Bhagwandas, 2005(2) R.C.R.(Rent) 584 : 2005(4) R.C.R.(Civil) 793 : (2005) 13 SCC 1 the said expression connotes the matter which is directly and substantially in issue. We have only referred to the said authority to highlight that despite liberal interpretation placed under Section 14 of the Act, the matter in issue in the earlier proceeding and the latter proceeding has to be conferred requisite importance. That apart, the prosecution of the prior proceeding should also show due diligence and good faith.18. In the case at hand, the respondent appeared before the learned arbitrator and after the award was passed, chose not to file any objection to the award immediately. On the contrary, the respondent filed an application under Section 11 of 1996 Act before the High Court for appointment of an arbitrator. As has been stated earlier, the learned Single Judge of the High Court distinguished the decision in the case of Sohanlal Chourasia and Another (supra) and came to hold that the application was not maintainable. However, he granted liberty to the respondent to file an objection in accordance with law. The words "in accordance with law" gain significance. It allows an argument to be canvassed by the respondent that the time spent in earlier proceeding deserved exclusion while computing the period of limitation. But, an ominous one for the respondent, whether Section 14 is at all attracted? Had the learned Single Judge stated that the period consumed for pursuing the remedy under Section 11 of the 1996 Act, would be excluded for filing objection, possibly the matter would have been different. In any case, we do not intend to dilate further on that aspect. It is quite clear that the quoted portion herein-above does not so indicate. It only grants liberty to the respondent to file an objection in accordance with law. Section 14(1) of the Act which we have reproduced, lays down that the proceedings must relate to the same matter in issue. It emphasises on due diligence and good faith. Filing of an application under Section 11 of the 1996 Act for an appointment of arbitrator is totally different than an objection to award filed under Section 34 of the 1996 Act. To put it differently, one is at the stage of initiation, and the other at the stage of culmination. By no stretch of imagination, it can be said that the proceedings relate to "same matter in issue". Additionally, the respondent had participated in the arbitral proceeding and was aware of passing of the award. He, may be, by design, invoked the jurisdiction of the High Court for appointment of an arbitrator. We are absolutely conscious that liberal interpretation should be placed on Section 14 of the Act, but if the fact situation exposits absence of good faith of great magnitude, law should not come to the rescue of such a litigant. We say so because the respondent instead of participating in the arbitration proceedings, could have immediately taken steps for appointment of arbitrator as he thought appropriate or he could have filed his objections under Section 34(2) of the Act within permissible parameters but he chose a way, which we are disposed to think, an innovative path, possibly harbouring the thought that he could contrive the way where he could alone rule. Frankly speaking, this is neither diligence nor good faith. On the contrary, it is absence of both. | 1[ds]14. The aforesaid authority makes it absolutely clear that the scheme of limitation provided under the 1996 Act is different than 1940 Act; and, therefore, an application filed beyond the period of limitation under Section 34(3) of 1996 Act would not be an application in accordance with the said provision. As is evident from factual narration, the application was filed beyond the period prescribed in the said provision. Therefore, it could not have been entertained under the 1996 Act. However, the appellants sought exclusion of the time spent in the proceedings in court as envisaged under Section 14 of the Act. It is settled in law that Section 14 of the Act applies to Section 34(3) of the 1996 Act. It has been so held in State of Goa v. Western Builders, 2006(3) R.C.R.(Civil) 475 : (2006) 6 SCC 239 and Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and others, 2008(2) R.C.R.(Civil) 897 : (2008) 7 SCC 169. From the aforesaid passage, it is clear as noon day that there has to be a liberal interpretation to advance the cause of justice. However, it has also been laid down that it would be applicable in cases of mistaken remedy or selection of a wrong forum. As per the conditions enumerated, the earlier proceeding and the latter proceeding must relate to the same matter in issue. It is worthy to mention here that the words "matter in issue" are used under Section 11 of the Code of Civil Procedure, 1908. As has been held in Ramadhar Shrivas v. Bhagwandas, 2005(2) R.C.R.(Rent) 584 : 2005(4) R.C.R.(Civil) 793 : (2005) 13 SCC 1 the said expression connotes the matter which is directly and substantially in issue. We have only referred to the said authority to highlight that despite liberal interpretation placed under Section 14 of the Act, the matter in issue in the earlier proceeding and the latter proceeding has to be conferred requisite importance. That apart, the prosecution of the prior proceeding should also show due diligence and good faith.18. In the case at hand, the respondent appeared before the learned arbitrator and after the award was passed, chose not to file any objection to the award immediately. On the contrary, the respondent filed an application under Section 11 of 1996 Act before the High Court for appointment of an arbitrator. As has been stated earlier, the learned Single Judge of the High Court distinguished the decision in the case of Sohanlal Chourasia and Another (supra) and came to hold that the application was not maintainable. However, he granted liberty to the respondent to file an objection in accordance with law. The words "in accordance with law" gain significance. It allows an argument to be canvassed by the respondent that the time spent in earlier proceeding deserved exclusion while computing the period of limitation. But, an ominous one for the respondent, whether Section 14 is at all attracted? Had the learned Single Judge stated that the period consumed for pursuing the remedy under Section 11 of the 1996 Act, would be excluded for filing objection, possibly the matter would have been different. In any case, we do not intend to dilate further on that aspect. It is quite clear that the quoted portiondoes not so indicate. It only grants liberty to the respondent to file an objection in accordance with law. Section 14(1) of the Act which we have reproduced, lays down that the proceedings must relate to the same matter in issue. It emphasises on due diligence and good faith. Filing of an application under Section 11 of the 1996 Act for an appointment of arbitrator is totally different than an objection to award filed under Section 34 of the 1996 Act. To put it differently, one is at the stage of initiation, and the other at the stage of culmination. By no stretch of imagination, it can be said that the proceedings relate to "same matter in issue". Additionally, the respondent had participated in the arbitral proceeding and was aware of passing of the award. He, may be, by design, invoked the jurisdiction of the High Court for appointment of an arbitrator. We are absolutely conscious that liberal interpretation should be placed on Section 14 of the Act, but if the fact situation exposits absence of good faith of great magnitude, law should not come to the rescue of such a litigant. We say so because the respondent instead of participating in the arbitration proceedings, could have immediately taken steps for appointment of arbitrator as he thought appropriate or he could have filed his objections under Section 34(2) of the Act within permissible parameters but he chose a way, which we are disposed to think, an innovative path, possibly harbouring the thought that he could contrive the way where he could alone rule. Frankly speaking, this is neither diligence nor good faith. On the contrary, it is absence of both. | 1 | 3,317 | 957 | ### 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:
gets attracted. Section 14(1) of the Act, which is relevant for the present purpose, reads as follows: "14. Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." 16. In Consolidated Engineering Enterprises (supra), the Court, while dealing with the conditions in which Section 14 will be applicable, enumerated five conditions which are as follows:- "(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court." In the said case, it has also been stated that:- "... While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. ..." 17. From the aforesaid passage, it is clear as noon day that there has to be a liberal interpretation to advance the cause of justice. However, it has also been laid down that it would be applicable in cases of mistaken remedy or selection of a wrong forum. As per the conditions enumerated, the earlier proceeding and the latter proceeding must relate to the same matter in issue. It is worthy to mention here that the words "matter in issue" are used under Section 11 of the Code of Civil Procedure, 1908. As has been held in Ramadhar Shrivas v. Bhagwandas, 2005(2) R.C.R.(Rent) 584 : 2005(4) R.C.R.(Civil) 793 : (2005) 13 SCC 1 the said expression connotes the matter which is directly and substantially in issue. We have only referred to the said authority to highlight that despite liberal interpretation placed under Section 14 of the Act, the matter in issue in the earlier proceeding and the latter proceeding has to be conferred requisite importance. That apart, the prosecution of the prior proceeding should also show due diligence and good faith.18. In the case at hand, the respondent appeared before the learned arbitrator and after the award was passed, chose not to file any objection to the award immediately. On the contrary, the respondent filed an application under Section 11 of 1996 Act before the High Court for appointment of an arbitrator. As has been stated earlier, the learned Single Judge of the High Court distinguished the decision in the case of Sohanlal Chourasia and Another (supra) and came to hold that the application was not maintainable. However, he granted liberty to the respondent to file an objection in accordance with law. The words "in accordance with law" gain significance. It allows an argument to be canvassed by the respondent that the time spent in earlier proceeding deserved exclusion while computing the period of limitation. But, an ominous one for the respondent, whether Section 14 is at all attracted? Had the learned Single Judge stated that the period consumed for pursuing the remedy under Section 11 of the 1996 Act, would be excluded for filing objection, possibly the matter would have been different. In any case, we do not intend to dilate further on that aspect. It is quite clear that the quoted portion herein-above does not so indicate. It only grants liberty to the respondent to file an objection in accordance with law. Section 14(1) of the Act which we have reproduced, lays down that the proceedings must relate to the same matter in issue. It emphasises on due diligence and good faith. Filing of an application under Section 11 of the 1996 Act for an appointment of arbitrator is totally different than an objection to award filed under Section 34 of the 1996 Act. To put it differently, one is at the stage of initiation, and the other at the stage of culmination. By no stretch of imagination, it can be said that the proceedings relate to "same matter in issue". Additionally, the respondent had participated in the arbitral proceeding and was aware of passing of the award. He, may be, by design, invoked the jurisdiction of the High Court for appointment of an arbitrator. We are absolutely conscious that liberal interpretation should be placed on Section 14 of the Act, but if the fact situation exposits absence of good faith of great magnitude, law should not come to the rescue of such a litigant. We say so because the respondent instead of participating in the arbitration proceedings, could have immediately taken steps for appointment of arbitrator as he thought appropriate or he could have filed his objections under Section 34(2) of the Act within permissible parameters but he chose a way, which we are disposed to think, an innovative path, possibly harbouring the thought that he could contrive the way where he could alone rule. Frankly speaking, this is neither diligence nor good faith. On the contrary, it is absence of both.
### Response:
1
### Explanation:
14. The aforesaid authority makes it absolutely clear that the scheme of limitation provided under the 1996 Act is different than 1940 Act; and, therefore, an application filed beyond the period of limitation under Section 34(3) of 1996 Act would not be an application in accordance with the said provision. As is evident from factual narration, the application was filed beyond the period prescribed in the said provision. Therefore, it could not have been entertained under the 1996 Act. However, the appellants sought exclusion of the time spent in the proceedings in court as envisaged under Section 14 of the Act. It is settled in law that Section 14 of the Act applies to Section 34(3) of the 1996 Act. It has been so held in State of Goa v. Western Builders, 2006(3) R.C.R.(Civil) 475 : (2006) 6 SCC 239 and Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and others, 2008(2) R.C.R.(Civil) 897 : (2008) 7 SCC 169. From the aforesaid passage, it is clear as noon day that there has to be a liberal interpretation to advance the cause of justice. However, it has also been laid down that it would be applicable in cases of mistaken remedy or selection of a wrong forum. As per the conditions enumerated, the earlier proceeding and the latter proceeding must relate to the same matter in issue. It is worthy to mention here that the words "matter in issue" are used under Section 11 of the Code of Civil Procedure, 1908. As has been held in Ramadhar Shrivas v. Bhagwandas, 2005(2) R.C.R.(Rent) 584 : 2005(4) R.C.R.(Civil) 793 : (2005) 13 SCC 1 the said expression connotes the matter which is directly and substantially in issue. We have only referred to the said authority to highlight that despite liberal interpretation placed under Section 14 of the Act, the matter in issue in the earlier proceeding and the latter proceeding has to be conferred requisite importance. That apart, the prosecution of the prior proceeding should also show due diligence and good faith.18. In the case at hand, the respondent appeared before the learned arbitrator and after the award was passed, chose not to file any objection to the award immediately. On the contrary, the respondent filed an application under Section 11 of 1996 Act before the High Court for appointment of an arbitrator. As has been stated earlier, the learned Single Judge of the High Court distinguished the decision in the case of Sohanlal Chourasia and Another (supra) and came to hold that the application was not maintainable. However, he granted liberty to the respondent to file an objection in accordance with law. The words "in accordance with law" gain significance. It allows an argument to be canvassed by the respondent that the time spent in earlier proceeding deserved exclusion while computing the period of limitation. But, an ominous one for the respondent, whether Section 14 is at all attracted? Had the learned Single Judge stated that the period consumed for pursuing the remedy under Section 11 of the 1996 Act, would be excluded for filing objection, possibly the matter would have been different. In any case, we do not intend to dilate further on that aspect. It is quite clear that the quoted portiondoes not so indicate. It only grants liberty to the respondent to file an objection in accordance with law. Section 14(1) of the Act which we have reproduced, lays down that the proceedings must relate to the same matter in issue. It emphasises on due diligence and good faith. Filing of an application under Section 11 of the 1996 Act for an appointment of arbitrator is totally different than an objection to award filed under Section 34 of the 1996 Act. To put it differently, one is at the stage of initiation, and the other at the stage of culmination. By no stretch of imagination, it can be said that the proceedings relate to "same matter in issue". Additionally, the respondent had participated in the arbitral proceeding and was aware of passing of the award. He, may be, by design, invoked the jurisdiction of the High Court for appointment of an arbitrator. We are absolutely conscious that liberal interpretation should be placed on Section 14 of the Act, but if the fact situation exposits absence of good faith of great magnitude, law should not come to the rescue of such a litigant. We say so because the respondent instead of participating in the arbitration proceedings, could have immediately taken steps for appointment of arbitrator as he thought appropriate or he could have filed his objections under Section 34(2) of the Act within permissible parameters but he chose a way, which we are disposed to think, an innovative path, possibly harbouring the thought that he could contrive the way where he could alone rule. Frankly speaking, this is neither diligence nor good faith. On the contrary, it is absence of both.
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Monnet Ispat And Energy Ltd Vs. Union Of India | become functus officio and ceased to have any power to recall the recommendation already made on any ground whatsoever. In this regard he relied upon Jayalakshmi Coelho v. Oswald Joseph Coelho [2001) 4 SCC 181 ].174. Relying upon the decision of this Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi, & Ors., [1978) 1 SCC 405 ] it was submitted that the reasons originally given in an administrative order cannot be supplanted by other reasons in the affidavits or pleadings before the Court. He submitted that as regards Monnet, the initial reason by the State Government was not founded on reservation but later on it tried to bring the ground of reservation in fore by supplanting reasons.175. Mr. Ranjit Kumar vehemently contended that as per the State Government’s own case initially, the land that was recommended for mining lease to Monnet was not under the reserved area and, therefore, Monnet’s writ petition ought not to have been heard and decided with the group matters. He also referred to interim order passed by this Court on August 18, 2008, the meeting that took place between the Central Government and the State Government pursuant thereto and the subsequent interim order of this Court dated December 15, 2008. 176. I have carefully considered the submissions of Mr. Ranjit Kumar. Most of the above submissions were not argued on behalf of Monnet before the High Court. The submissions were confined to the issue of reservation, the legality and validity of 1962, 1969 and 2006 Notifications, consequent illegal action of the State Government in recalling the recommendation and of the Central Government in summarily rejecting the appellant’s application.177. In paragraph 17 of the impugned judgment, the arguments of the learned senior counsel for Monnet have been noticed. It transpires therefrom that many of the above arguments were not advanced including the issue of overlapping with the area of Rungta. In the list of dates/synopsis of the special leave petition, Monnet has not raised any grievance that arguments made on its behalf before the High Court were not correctly recorded or the High Court failed to consider any or some of its arguments. Criticism of the High Court judgment is thus not justified and I am not inclined to go into above submissions of Mr. Ranjit Kumar for the first time.178. It is too late in the day for Monnet to contend that its case could not have been decided with group matters and in any case the matter should be remanded to the High Court for reconsideration on the issues, namely, (a) whether the area recommended for the appellant was overlapping with Rungta only to the extent of 102.25 hectares out of total 705 hectares recommended for appellant; (b) whether after expiry of lease Rungta’s area was renotified for grant in 1996; (c) what was the reason for the State Government to withdraw the recommendation made in favour of the appellant when the alleged overlapping with Rungta was only to the extent of 102.25 hectares and (d) is withdrawal of appellant’s recommendation arbitrary when reservation vide 1962 Notification did not apply to the area recommended in favour of the appellants. Monnet’s writ petition was decided by the High Court with group matters as the arguments advanced on its behalf were identical to the arguments which were canvassed on behalf of other writ petitioners. The State Government recalled its recommendations by a common communication and the Central Government returned the recommendations and rejected applications for mining lease made by the writ petitioners by a common order.179. The State Government had full power to recall the recommendation made to the Central Government for some good reason. Once 1962 and 1969 Notifications issued by the erstwhile State of Bihar and 2006 Notification issued by the State of Jharkhand have been found by me to be valid and legal, the submissions of Mr. Ranjit Kumar noted above pale in insignificance and are not enough to invalidate the action of the State Government in recalling the recommendation made in favour of Monnet. The valid reservation of subject mining area for exploitation in public sector disentitles Monnet - as well as other appellants - to any relief.180. It is well settled that no one has legal or vested right to the grant or renewal of a mining lease. Monnet cannot claim a legal or vested right for grant of the mining lease. It is true that by the MOU entered into between the State Government and Monnet certain commitments were made by the State Government but firstly, such MOU is not a contract as contemplated under Article 299(1) of the Constitution of India and secondly, in grant of mining lease of a property of the State, the State Government has a discretion to grant or refuse to grant any mining lease. Obviously, the State Government is required to exercise its discretion, subject to the requirement of law. In view of the fact that area is reserved for exploitation of mineral in public sector, it cannot be said that the discretion exercised by the State Government suffers from any legal flaw.181. The case of discrimination vis-a-vis M/s Bihar Sponge Iron Limited argued on behalf of Monnet was not pressed before High Court and is not at all established. The argument with regard to violation of principles of natural justice is also devoid of any substance. The recommendation in favour of Monnet to the Central Government was simply a proposal with certain pre-conditions. For withdrawal of such proposal by the State Government, in my view, no notice was legally required to be given. Moreover, no prejudice has been caused to it by not giving any notice before recalling the recommendation as it had no legal or vested right to the grant of mining lease. The area is not available for grant of mining lease in the private sector. For all these reasons, I do not find that the case of Monnet stands differently from the other appellants. | 0[ds]104. The appellants have applied for mining leases in a land belonging to Government of Jharkhand (erstwhile Bihar) and it is for iron- ore which is a mineral included in the First Schedule to the 1957 Act in respect of which no mining lease can be granted without the prior approval of the Central Government. It goes without saying that no person can claim any right in any land belonging to Government or in any mines in any land belonging to Government except under 1957 Act and 1960 Rules. No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation in any land belonging to the Government. It is apt to quote the following statement of O. Chinnappa Reddy, J. in M/s. Hind Stoneo , albeit in the context of minor mineral, ‘The public interest which induced Parliament to make the declaration contained in Section 2……. has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development ofHe went on to say, ‘The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed ………..at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present.It is not in dispute that all rights and interests, including rights in mines and minerals in the subject area, had vested absolutely in the erstwhile State of Bihar free from all encumbrances. At the commencement of Constitution, the erstwhile State of Bihar was a Part-A State specified in the First Schedule of the Constitution and prior thereto the Province of Bihar. By virtue of Article 294, all properties and assets which were vested in His Majesty for the purposes of the Government of Province of Bihar stood vested in the corresponding State of Bihar. By 1950 Bihar Act, all other lands i.e., estates and tenures of whatever kind, including the mines and minerals therein, stood vested in the State of Bihar. Thus, all lands and minerals on or under land situate in the erstwhile State of Bihar came to vest in it. Thereafter with effect from November 15, 2000, the State of Jharkhand was carved out of the State of Bihar pursuant to the Bihar Re-Organisation Act, 2000. Accordingly, all lands, inter alia, belonging to the then State of Bihar and situated in the transferred territories of Singhbhum (East) and Singhbhum (West) Districts, passed to the newly created State of Jharkhand. The admitted position is that the State Government (erstwhile Bihar and now Jharkhand) is the owner of the subject area. Mines and minerals within its territory vest in it absolutely. As a matter of fact it is because of this position that the appellants made their application for grant of mining lease to the State Government. The question now is, the regulation of mines and development of minerals having been taken under its control by the Central Government, whether the provisions contained in 1957 Act or 1960 Rules come in the way of the State Government to reserve any particular area for exploitation in the public sector.106. The legislation on the subject of mines and minerals as contained in 1957 Act and 1960 Rules has been extensively quoted in the earlier part of the judgment. Suffice it to say that Section 4 is a pivotal provision around which the legal framework for the regulation of mines and development of minerals as laid down in 1957 Act revolves.107. The character of the impugned Notifications making reservation of the area set out therein for exploitation of iron ore in public sector has to be judged in light of the provisions in 1957 Act and 1960 Rules. The object and effect of declaration made by Parliament in Section 2 and the provisions that follow Section 2 in 1957 Act, which have been extensively referred to above, even remotely do not suggest that the Government of the erstwhile State of Bihar lacked authority or competence to make reservation of subject mining areas within its territory relating to iron ore which vested in it for public sector undertaking by 1962 and 1969 Notifications. Whatever way it is seen, whethertopic was covered by 1957 Act when 1962 and 1969 Notifications were issued and published by the State Government or whether the provisions of 1957 Act, as were then existing, enabled the State Government to reserve the subject area for its own use through the agency in public sector, I am of the opinion that since the Stateparamount right over the iron ore being the owner of the mines did not get affected by 1957 Act, the power existed with the State Government to reserve subject areas of mining for exploitation in public sector undertaking. It was, however, argued that by 1957 Act theownership rights insofar as ‘development ofwas concerned stood frozen.includes exploitation of mineral resources and to allow to exploit or not to allow to exploit is all covered by 1957 Act and by Section 4 the right of the State Government with regard to development of minerals was taken away and the State Government ceased to have any inherent right of reservation.108. I do not agree. In the first place, the declaration made by Parliament in Section 2 and the provisions that follow Section 2 in 1957 Act have left untouched theownership of mines and minerals within its territory although the regulation of mines and the development of minerals have been taken under the control of the Union. Section 4 deals with activities in relation to land and does not extend to extinguish theright of ownership in such land. Section 4 regulates the right to transfer but does not divest ownership of minerals in a State and does not preclude the State Government from exploiting its minerals. Section 4(1) can have no application where the State Government wants to undertake itself mining operations in the area owned by it. On consideration of Section 5, I am of the view that the same conclusion must follow. Section 5 or for that matter Sections 6, 9, 10, 11 and 13(2)(a) also do not take away theownership rights in the mines and minerals within its territory. The power to legislate for regulation of mines and development of minerals under the control of the Union may definitely imply power to acquire mines and minerals in the larger public interest by appropriate legislation, but by 1957 Act that has not been done. There is nothing in 1957 Act to suggest even remotely – and there is no express provision at all – that the mines and minerals that vested in the States have been acquired. Rather, the scheme and provisions of 1957 Act themselves show that Parliament itself contemplated State legislation for vesting of lands containing mineral deposits in the State Government and that Parliament did not intend to trench upon powers of State Legislatures under Entry 18, List II. As noted above, the declaration made by Parliament in Section 2 of 1957 Act states that it is expedient in the public interest that the Union should take under its control the regulation of mines and development of minerals to the extent provided in the Act itself. The declaration made in Section 2 is, thus, not all comprehensive.109. The regulation of mines and development of minerals has been taken over under its control by the Central Government to the extent it is manifested in 1957 Act which does not contemplate acquisition of mines and minerals. By the presence of keynote expression ‘to the extent hereinafterin Section 2, the Union has assumed control to the extent specified in the provisions following Section 2. In my view, although the wordmust in the context receive wide interpretation, but the extent of control by Union as specified in 1957 Act has to be construed strictly. The decisions of this Court in M.A. Tulloch & Co.b, Baijnath Kadioc, Bharat Coking Coali and few other decisions where this Court has held with reference to declaration made by Parliament in Section 2 of 1957 Act and the provisions of that Act that the whole of the legislative field was covered were in the context of specific State legislations under consideration. In the context of subject State legislation, the whole legislative field was found to be occupied by the Central law. The same is the position in the case of Hingir-Rampur Coal Co.a where whole of the legislative field relating toSecondly, after enactment of 1957 Act and 1960 Rules made thereunder, the Central Government has all throughout understood that the State Governments as owner of mines and minerals within their territory have inherent right to reserve any particular area for exploitation in the public sector. This position is reflected from the order of the Central Government that was passed by it and which was under challenge in Amritlal Nathubhai Shahd. In its order the Central Government had stated, ‘….The State Government had the inherent right to reserve any particular area for exploitation in the public sector. Mineral vest in them and they are owners of minerals…….and Central Government are in agreement with the State Government in so far as the reservation of areas is concerned…..The above position held by the Central Government has been approved by this Court in Amritlal Nathubhai Shahd. I have already referred to the facts in the case of Amritlal Nathubhai Shahd and the issue involved therein – an issue similar to the controversy presented before us – in earlier part of this judgment. In Amritlal Nathubhai Shahd, the Court referred to Section 4 of 1957 Act and it was held that there was nothing in 1957 Act or 1960 Rules to conclude as to why the State Government could not , if it so desired,any land for itself, for any purpose, and such reserved land would then not be available for the grant of a prospecting licence or a mining lease to any person. The Court then pointed out, ‘the authority to order reservation flows from the fact that the State is the owner of the mines and the minerals within itsIt was also held that quite apart from that, Rule 59 of 1960 Rules clearly contemplated reservation by an order of the State Government. The above legal position has been reiterated by this Court in Indian Metals and Ferro Alloys Ltd.p .Learned senior counsel for the appellants, however, vehemently contended that Amritlal Nathubhai Shahd is not a binding precedent being per incuriam inasmuch as earlier judgments of this Court have not been considered and applied. It was argued that decision in Amritlal Nathubhai Shahd was limited to its own facts and that decision did not deal with reservation prior to amendment in Rule 59. In that case Notification was of December 31, 1963 whereunder lands in particular areas had been reserved for exploitation of bauxite in the public sector. At that time Rule 59 of 1960 Rules had been amended and, moreover, that was a case of exploitation of mineral by the State itself and in case of exploitation other than by State it could only be done in accord with the 1957 Act and 1960 Rules.114. I am afraid that the distinguishing features highlighted by learned senior counsel for the appellants are not substantial and do not persuade me not to follow Amritlal Nathubhai Shahd. The judgment of this Court in Amritlal Nathubhai Shahd establishes the distinction between the power of reservation to exploit a mineral as its own property on the one hand and the regulation of mines and mineral development under the 1957 Act and the 1960 Rules on the other. The authority of the State Government to make reservation of a particular mining area within its territory for its own use is the offspring of ownership; and it is inseparable therefrom unless denied to it expressly by an appropriate law. By 1957 Act that has not been done by Parliament. Setting aside by a State of land owned by it for its exclusive use and under its dominance and control, in my view, is an incident of sovereignty and ownership. There is no incongruity or inconsistency in the decisions of this Court in Hingir-Rampur Coal Co.a, M.A. Tulloch & Co.b, Baijnath Kadioc and Amritlal Nathubhai Shahd . The Bench in Amritlal Nathubhai Shahd was alive to the legal position highlighted by this Court in Hingir-Rampur Coal Co.a, M.A. Tulloch & Co.b and Baijnath Kadioc although it did not expressly refer to these decisions. This is apparent from the observations made in para 3 wherein it has been stated that in pursuance of its exclusive power to make laws with respect to the matters enumerated in Entry 54 of List I in the Seventh Schedule, Parliament specifically declared in Section 2 of the 1957 Act that it was expedient in the public interest that the Union should take under its control, regulation of mines and the development of minerals to the extent provided therein. The Bench noticed that Statepower under Entry 23 of List II was, thus, taken away and regulation of mines and mineral development had therefore to be in accordance with the 1957 Act and 1960 Rules. The legal position exposited in Amritlal Nathubhai Shahd is that even though the field of legislation with regard to regulation of mines and development of minerals has been covered by the declaration of the Parliament in Section 2 of the 1957 Act, but that can not justify the inference that the State Government has lost its right to the minerals which vest in it as a property within its territory and hence no person has a right to exploit the mines other than in accordance with the provisions of the 1957 Act and the 1960 Rules. The authority of the State Government to order reservation flows from the fact that it is the owner of the mines and the minerals within its territory. Such authority is also traceable to Rule 59 of 1960 Rules.On October 27, 2006, the State Government issued a Notification declaring its decision that the iron ore deposits at Ghatkuri would not be thrown open for grant of prospecting licence, mining licence or otherwise for private parties. In the said Notification, it was noted that the deposits were at all material times kept reserved by 1962 and 1969 Notifications issued by the State of Bihar. It was further mentioned in the Notification that mineral reserved in Ghatkuri area has now been decided to be utilized for exploitation by public sector undertaking or joint venture project of the State Government as they would usher in maximum benefits to the State and would generate substantial amount of employment in the State. 2006 Notification states that it has been issued in the public interest and in the larger interest of the State for optimum utilization and exploitation of the mineral resources in the State and for establishment of mineral based industry with value addition thereon. It was argued that 2006 Notification is bad for the same reasons for which 1962 and 1969 Notifications are bad in law and invalid. The argument is noted to be rejected. For 1962 and 1969 Notifications are not and have not been found by me to suffer from any legal infirmity. 2006 Notification mentions factum of reservation made by 1962 and 1969 Notifications. It is founded on the policy of the State Government that such reservation will usher in maximum benefits to the State and would also generate substantial amount of employment in the State. The public interest is, thus, paramount. The State Government had authority to do that under Section 17A(2) of 1957 Act read with Rule 59(1)(e) of 1960 Rules.Yet another considerable point was made that 1962 and 1969 Notifications are not relatable to statutory provisions contained in 1957 Act and 1960 Rules. Reference was made to Sections 17 and 18 and Rules 58 and 59 of 1960 Rules and it was argued that these provisions are indicative of the position that reservation made by the State Government for exploitation of minerals in public sector was unsupportable and unsustainable in law.Section 17 – not all - comprehensive provision116. I am of the opinion that Section 17 is not all - comprehensive on the subject of refusal to grant prospecting licence or mining lease. Section 17 has nothing to do with public or private sector. It does not deal directly or indirectly with the Stateright for reservation of its own mines and minerals. Its application is not general but it is confined to a specific situation where the Central Government proposes to undertake prospecting or mining operations in any area not already held under any prospecting licence or mining lease. The above view with regard to Section 17 finds support from Amritlal Nathubhai Shahd. Insofar as Section 18 is concerned, it basically confers additional rule making power upon the Central Government for achieving the objectives, namely, conservation and systematic development of minerals articulated therein. If the State Government makes reservation in public interest with respect to minerals which vest in it for exploitation in public sector, I fail to see how such reservation can be seen as impairing the obligation cast upon the Central Government under Section 18.Rule 59 and Janak Lal117. It is true that Rule 58 as it existed originally did not enable the State Government to reserve any area in the State for exploitation of minerals in public sector. But Rule 59 did recognise the Stateauthority to make reservation for any purpose. It was, however, argued by Dr. Rajiv Dhavan that Rule 59, as it then stood, allowed reservation for anypurpose other than prospecting or miningminerals. He relied upon decision of this Court in Janak Lalj. In Janak Lalj, admittedly the disputed area was reserved for nistar purposes. When an application for grant of mining lease was earlier made by a third party it was rejected on the ground that it was so reserved. It was also an admitted position before this Court that the procedure under Rule 58 was not followed before grant was made in favour of respondent no. 4 therein and no opportunity was given to any other person before entertaining application of respondent no. 4. In the backdrop of the above admitted position, the Court considered the question whether Rule 59 was attracted or not. The High Court had accepted the argument of the respondents that the expression ‘reserved for anyin Rule 59 did not cover a case where the area was reserved for nistar purposes or for any purpose other than mining. This Court did not accept the Highview. While construing Rule 59 as it originally existed and the amendment brought in Rule 59 by deleting the words, ‘otherthan prospecting or mining forthe Court said that the result of the amendment was to extend the rule and not to curtail its area of operation. It was held that words ‘anywas of wide connotation and there was no reason to restrict its meaning.118. Janak Lal,j in my opinion, does not help the contention canvassed on behalf of the appellants. The expression, ‘otherthan prospecting or mining forthat formed part of original Rule 59, in my view, was not of much significance and did not impede the Stateauthority to make reservation of any area for exploitation in public sector founded on its ownership over that area. It was because of this that this insignificant and inconsequential expression was later on deleted from Rule 59 in 1963. Rule 59, accordingly, continued to recognise the Stateright to reserve any area for mining within its territory for any purpose including exploitation in public sector. In Amritlal Nathubhai Shahd, this position has been expressly affirmed when it said,quite apart from that, we find that Rule 59 of the Rules which have been made under Section 13 of the Act, clearly contemplates such reservation by an order of the Stateof Rule 58 and Section 17A119. Rule 58 was amended in 1980 whereby it expressly provided that the State Government may by Notification in the official gazette reserve any area for exploitation by the Government, a corporation established by the Central, State or Provincial Act or a Government company within the meaning of Section 617 of the Companies Act. Rule 58 has been omitted from 1960 Rules as the provision for reservation has now been expressly made by insertion of Section 17A in 1957 Act. According to Section 17A(2), the State Government withthe approval of the CentralGovernment may reserve any area not already held under any prospecting licence or mining lease to undertake prospecting or mining operations through a Government company or a corporation owned or controlled by it. In terms of Section 17A(2), any reservation made by the State Government after coming into force of that Section must bear approval of the Central Government.120. From the above, it becomes clear that what was implied by the provisions originally contained in 1957 Act and 1960 Rules insofar as authority of the State Government to reserve any area within its territory for mining in public sector has been made explicit first by amendment in Rule 58 in 1980 and later on by introduction of Section 17A in 1957 Act by virtue of amendment effective from 1987.121. It was also argued by Mr. C.A. Sundaram, learned senior counsel for one of the appellants that even if 1962 and 1969 Notifications were held to be validly issued with proper authority of law at that point of time, the fact that Rule 58 was omitted in 1988 without any saving clause necessarily meant that these Notifications were no longer valid and could not be relied upon. He argued that current power of reservation contained in Section 17A of 1957 Act is consistent with erstwhile Rules 58/59 since Section 17A expressly requiresthe approval of the CentralGovernment before any State Government issues any notification for reservation of mining area in public sector.122. The impact of omission of Rule 58 in 1988 from 1960 Rules and the introduction of Section 17A in 1957 Act in the context of reservation of the mining area by the State Government for public sector exploitation came up for direct consideration by this Court in Indian Metals and Ferro Alloys Ltd.p. In the earlier part of the judgment I have already quoted the relevant portion of the decision of this Court in Indian Metals and Ferro Alloys Ltd.p. The Court referred to the relevant amendments in 1957 Act and 1960 Rules and categorically held that reservations made prior to insertion of Section 17A continue in force even after the introduction of Section 17A. The reservations made by the State Government in 1977 before omission of Rule 58 and amendment in Rule 59 and insertion of Section 17A in 1957 Act were, thus, held to be unaffected.123. Having carefully considered Section 17A, I have no hesitation in holding that the said provision is prospective. There is no indication in Section 17A or in terms of the Amending Act that by insertion of Section 17A the Parliament intended to alter the pre-existing state of affairs. The Parliament does not seem to have intended by bringing in Section 17A to undo the reservation of any mining area made by the State Government earlier thereto for exploitation in public sector. The Parliament has no doubt plenary power of legislation within the field assigned to it to legislate prospectively as well as retrospectively. As early as in 1951 this Court in Keshavan Madhavav. State ofBombay [AIR 1951 SC 128 ] had stated about a cardinal principle of construction that every statue is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only. In Principles of Statutory Interpretation (Seventh Edition, 1999) by Justice G.P. Singh, the statement of Lord Blanesburg in ColonialSugar Refining Co. v.Irving [1905) AC 369] and the observations of Lopes, L.J. inParish School Board Election, Bourke v.) 1 QB725, p. 737] have been noted as followsthe words of Lord Blanesburg,which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessaryy statute, it has beenobserved Lopes, L.J.,Where an issue arises before the Court whether a statute is prospective or retrospective, the Court has to keep in mind presumption of prospectivity articulated in legal maxim nova constitutio futuris formam imponere debet non praeteritis, i.e., ‘a new law ought to regulate what is to follow, not theThe presumption of prospectivity operates unless shown to the contrary by express provision in the statute or is otherwise discernible by necessary implication.125. The aspects, namely, (i) 1993 mineral policy framed by the Central Government envisaged permission of captive consumption of minerals across the country; (ii) in 1994 Central Government asked all the state governments to de-reserve 13 minerals including iron ore and directed them to take steps accordingly; (iii) confirmation by the Government of Bihar to the Central Government in 1994 that no mining areas were reserved for public sector undertaking in the then State of Bihar; (iv) confirmation by the State Government in 2001 to Central Government that there are no reserved areas in the State and (v) in 2004, the recommendation by the State Government in favour of the appellants to the Central Government for grant of prior approval and reminder in 2005, in my view, have no impact and effect on the validity of 1962 and 1969 Notifications. The above acts of the Government of Bihar and the Government of Jharkhand in ignorance of 1962 and 1969 Notifications cannot be used as a sufficient ground for invalidating these Notifications. If a state government has power to reserve mineral bearing area for exploitation in public sector – and I have already held that the then Government of Bihar had such power – the act of reservation vide 1962 and 1969 Notifications is not rendered illegal or invalid. I am clearly of the view that lack of knowledge on the part of the State Government about the reservation of areas for exploitation in public sector vide 1962 and 1969 Notifications does not affect in any manner the legality and validity of these Notifications once it has been found that these Notifications have been issued by the erstwhile State of Bihar in valid exercise of power which it had.It was, however, argued on behalf of the appellants that 2006 Notification has attempted to reserve the area for exploitation by public sector undertaking or in joint venture project whereas Section 17A(2) of 1957 Act allows the State Government to reserve area for a government company or corporation owned or controlled by it and not in joint venture project. The submission was that 2006 Notification is an attempt to bring in indirectly private companies through joint venture project although, Section 17A clearly does not envisage private participation.128. The mineral reserved in the said area by 2006 Notification has been decided to be utilized for exploitation by public sector undertaking or joint venture project of the State Government. 2006 Notification does mention reservation for joint venture project of the State Government but, in my opinion, the said expression must be understood to be confined to an instrumentality having the trappings and character of a government company or corporation owned or controlled by the State Government and not outside of such instrumentality.129. The types of reservation under Section 17A and their scope have been considered by this Court in Indian Metals and Ferro Alloys Ltd.p in paragraphs 45 and 46 (pgs. 136-139) of the Report. I am in respectful agreement with that view. However, it was argued that Section 17A(2) requires prior approval of the Central Government before reservation of any area by the State Government for the public sector undertaking. The argument is founded on incorrect reading of Section 17A(2). This provision does not use the expression, ‘priorwhich has been used in Section 11. On the other hand, Section 17A(2) uses the words, ‘withthe approval of the CentralThese words in Section 17A(2) can not be equated with prior approval of the Central Government. According to me, the approval contemplated in Section 17A may be obtained by the State Government before the exercise of power of reservation or after exercise of such power. The approval by the Central Government contemplated in Section 17A(2) may be express or implied. In a case such as the present one where the Central Government has relied upon 2006 Notification while rejectingapplication for grant of mining lease, it necessarily implies that the Central Government has approved reservation made by State Government in 2006 Notification otherwise it would not have acted on the same. In any case, the Central Government has not disapproved reservation made by the State Government in 2006 Notification.130. Two more contentions advanced on behalf of the appellants, one, with regard to 2006 Notification and the other with regard to 1962 and 1969 Notifications may be briefly noticed. As regards 2006 Notification it was contended that it was not legally valid as it has been made operative with retrospective effect. In respect of 1962 and 1969 Notifications, it was argued that the State Government had never adopted these Notifications and, accordingly, these Notifications lapsed. None of these two arguments has any merit. 2006 Notification has not been given retrospective operation as contended on behalf of the appellants. I have already held that 2006 Notification is prospective. Mere reference to 1962 and 1969 Notifications in 2006 Notification does not make 2006 Notification retrospective.131. The other argument that 1962 and 1969 Notifications had lapsed as the State Government never adopted them is also without any merit and substance. The new State of Jharkhand was carved out of the erstwhile State of Bihar and it came into existence by virtue of the Bihar Reorganisation Act, 2000. Section 85 of that Act provides that the appropriate Government may before expiration of two years adapt and/or modify the law and every such law shall have effect subject to adaptation and modification so made until altered, repealed or amended by a competent Legislature. In light of Section 85 of the Bihar Reorganisation Act read with Sections 84 and 86 thereof, position that emerges is that the existing law shall have effect until it is altered, repealed and/or amended. Since the new State of Jharkhand had not altered, repealed and/or amended 1962 and 1969 Notifications issued by the erstwhile State of Bihar, it cannot be said that 1962 and 1969 Notifications had lapsed. Moreover, in 2006 Notification, 1962 and 1969 Notifications and their effect have been mentioned and that also shows that 1962 and 1969 Notifications continued to operate. The expression, ‘the deposit was at all material times kept reserved vide Gazette Notification No. A/MM-40510/62-6209/M dated 21st December, 1962 and No. B/M-6-1019/68-1564/M dated 28th February, 1969 of the State ofleaves no manner of doubt that 1962 and 1969 Notifications continued to operate and did not lapse.I may now examine whether the doctrines of promissory estoppel and the legitimate expectation help the appellants in obtaining the reliefs claimed by them and whether the actions of the State Government and the Central Government are liable to be set aside by applying these doctrines.155. Each of the appellants has raised the pleas of promissory estoppel and legitimate expectation based on its own facts. It is not necessary to narrate facts in each appeal with regard to these pleas as stipulations in the MOUs entered into between the respective appellants and the State Government are broadly similar. For the sake of convenience, the broad features in the matter of Adhunik may be considered. The MOU was made between the State Government and Adhunik on February 26, 2004. Adhunik is involved in diversified activities such as production of sponge iron and steel, generating power etc. The preamble to the MOU states that the Government of Jharkhand is desirous of utilization of its natural resources and rapid industrialization of the State and has been making efforts to facilitate setting up of new industries in different locations in the State. It is stated in paragraph 2 of the MOU,this context the Government of Jharkhand is willing to extend assistance to suitable promoters to set up new(emphasis supplied). Adhunik expressed desire of setting up manufacturing/generating facilities in the State of Jharkhand. Proposed Phase-I comprised of setting up Sponge Iron Plant and Pelletaisation Plant while Phase-II comprised of Sponge Iron Plant, Power Plant, Coal Washery, Mini Blast Furnace, Steel Melting/LD/IF and Iron Ore Mining and Phase-III comprised of establishment of Power Plant. Para 4 of MOU states that Adhunik requires help and cooperation of the State Government in several areas to enable them to construct, commission and operate the project. The Statewillingness to extend all possible help and cooperation is stated in the above MOU. Para 4.3 of MOU records that the State Government shall assist in selecting the area for Adhunik for iron ore and other minerals as per requirement of the company depending upon quality and quantity. The State Government also agreed to grant mineral concession as per existing Acts and Rules.156. In pursuance of the above MOU, the State Government through its Deputy Secretary, Mining and Geology Department recommended to the Government of India through its Joint Director, Mining Ministry on August 4, 2004 to grant prior approval under Section 11(5) and Section 5(1) of the 1957 Act for grant of mining lease to Adhunik for a period of 30 years in the area of 426.875 hectares. The reasons for such recommendation were stated by the State Government in the above communication. In the above communication, it was stated that Adhunik had signed MOU with the State Government for making a capital investment of Rs. 790 crores in establishment of an industry based on iron ore mineral in the State. The steps taken by Adhunik were also highlighted.157.case is that on the basis of definite commitment and firm promise made by the State Government for grant of captive mines as stipulated in the MOU and theIndustrial Policy, it acted immediately on the MOU and has invested more than Rs. 100 crores to construct and commission the plant and facilities in Phase-I of the MOU and it has employed about 3500 people directly and indirectly for construction and operation of plant in Phase-I. According to Adhunik, it has ordered equipments and machinery for Phase-II and Phase-III at a cost of Rs. 25 crores and has also made further financial commitments for more than Rs. 1000 crore to set up the expansion. Adhunik claims to have also borrowed a sum of Rs. 60 crores from banks and financial institutions and invested that sum in the proposed project.158. According to Adhunik, no integrated steel plant can be viable in the State of Jharkhand without captive iron ore mines and without the definite promise of the State Government to grant the captive mines and it would not have acted on the MOU to make such a huge investment if the State Government were not to make available captive iron ore mines. Adhunik has also stated that in the absence of grant of captive iron ore mines, it has been suffering huge and irreparable losses due to (a) shortage in supply of iron ore due to poor availability, (b) it has to purchase from the market poor quality of iron ore and (c) extra cost due to abnormal market prices compared to the actual cost of captive iron ore.159. What the State Government had expressed in MOU is its willingness to extend all possible help and cooperation in setting up the manufacturing/generating facilities by Adhunik. The clause in MOU states that the State Government shall assist in selecting the area for iron ore and other minerals as per requirement of the company depending upon quality and quantity. The State Government agreed to grant mineral concession as per existing Act and Rules. As a matter of fact, when the MOU was entered into, the State Government was not even aware about the reservation of the subject mining area for exploitation in the public sector. It was on November 17, 2004 that the District Mining Officer, Chaibasa informed the Secretary, Department of Mines and Geology, Government of Jharkhand that certain portions of Mauza Ghatkuri and the adjoining areas were reserved for public sector under 1962 and 1969 Notifications issued by the erstwhile State of Bihar. The District Mining Officer suggested to the State Government that approval of the Central Government should be obtained for grant of leases to the concerned applicants. In his communication, he stated that the fact of reservation of the subject area in public sector vide 1962 and 1969 Notifications was brought to the knowledge of the Director of Mines, Jharkhand but he did not take any timely or adequate action in the matter. In view of the fact that the subject mining area had been reserved for exploitation in pubic sector under 1962 and 1969 Notifications, in my opinion, the stipulation in the MOU that the State Government shall assist in selecting the area for iron ore and other minerals as per requirement of the company and the commitment to grant mineral concession cannot be enforced. For one, the stipulation in the MOU is not unconditional. The above commitment is dependent on availability and as per existing law. Two, if the State Government is asked to do what it represented to do under the MOU then that would amount to asking the State Government to do something in breach of these two Notifications which continue to hold the field. The doctrine of promissory estoppel is not attracted in the present facts, particularly when promise was made – assuming that some of the clauses in the MOU amount to promise – in a mistaken belief and in ignorance of the position that the subject land was not available for iron ore mining in the private sector. I do not think that the State Government can be compelled to carry out what it cannot do in the existing state of affairs in view of 1962 and 1969 Notifications. In my opinion, the State Government cannot be held to be bound by its commitments or assurances or representations made in the MOU because by enforcement of such commitments or assurances or representations, the object sought to be achieved by reservation of the subject area is likely to be defeated and thereby affecting the public interest. The overriding public interest also persuades me in not invoking the doctrines of promissory estoppel and legitimate expectation. For the self-same reasons none of the appellants is entitled to any relief based on these doctrines; their case is no better.160. As a matter of fact, on coming to know of 1962 and 1969 Notifications, the State Government withdrew the proposals which it made to the appellants and reiterated the reservation by its Notification dated October 27, 2006 expresslyThe act of the State Government in withdrawing the recommendations made by it to the Central Government in the above factual and legal backdrop cannot be said to be bad in law on the touchstone of doctrine of promissory estoppel as well as legitimate expectation. The act of the State Government is neither unfair nor arbitrary nor it suffers from the principles of natural justice. The Government of India upon examination of the proposals rejected them on the ground that subject area was under reservation and not available for exploitation by private parties. In these circumstances, if the clauses in the MOU are allowed to be carried out, it would tantamount to enforcement of promise, assurance or representation which is against law, public interest and public policy which I am afraid cannot be permitted.162. On behalf of the appellants, it was also argued that the 1962 and 1969 Notifications had remained in disuse for about 40 years and it is reasonable to infer that these two Notifications no longer operated. In this regard, the doctrine of quasi repeal by desuetude was sought to be invoked.The doctrine of desuetude and its applicability in Indian Jurisprudence have been considered by this Court on more than one occasion. In the case of State of Maharashtra v. Narayan Shamrao Puranik & Ors. [1982) 3 SCC 519 ], the Court noted the decision of Scrutton, L.J. inv. London CountyR (1931) 2 KB 215(CA)] and the view of renowned author Allen inand observed that the rule concerning desuetude has always met with general disfavour. It was also held that a statute can be abrogated only by express or implied repeal; it cannot fall into desuetude or become inoperative through obsolescence or by lapse of time.164. In Bharat Forge Co. Ltd.v, inter alia, the argument was raised that the Notifications of June 17, 1918 have not been implemented till date and therefore these Notifications were dead letter and stood repealedA three-Judge Bench of this Court entered into consideration of the doctrine of desuetude elaborately. After noticing the English law and Scots law in regard to the doctrine of desuetude, the Court noted the doctrine of desuetude explained in FrancisStatutory Interpretation; Craies Statute Law (7th Edn.) and Lordte of Edinburghts Law Times Reports) 456, 458].165. The Court also referred toand Desuetude ofby Aubrey L. Diamond wherein a reference has been made to the view of Lord Denning, M.R. inv. Greater LondonCouncil [1970) 2 All ER 193]. Having noticed as above, the Court in paragraph 34 (pages 446-447) of the Report statedThough in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the. We would think it would advance the cause of justice to accept the application of doctrine of desuetude in our country also. Our soil is ready to accept this principle; indeed, there is need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become. A new path is, therefore, required to be laid and trodden.In Cantonment Board, MHOW and Anr. v. M.P. State Road Transport Corporation [1997) 9 SCC 450 ], this Court had an occasion to consider the doctrine of desuetude while considering the submission that the provisions of Madhya Pradesh Motor Vehicles Taxation Act, 1947 stood repealed having been in disuse. The Court considered the earlier decision in Bharat Forge Co. Ltd.v and held that to apply principle of desuetude it was necessary to establish that the statute in question had been in disuse for long and the contrary practice of some duration has evolved. It was also held that neither of these two facts has been satisfied in the case and therefore the doctrine of desuetude had no application.167. From the above, the essentials of doctrine of desuetude may be summarized as follows :(i) The doctrine of desuetude denotes principle of quasi repeal but this doctrine is ordinarily seen with disfavour.ii) Although doctrine of desuetude has been made applicable in India on few occasions but for its applicability, two factors, namely, (i) that the statute or legislation has not been in operation for very considerable period and (ii) the contrary practice has been followed over a period of time must be clearly satisfied. Both ingredients are essential and want of anyone of them would not attract the doctrine of desuetude. In other words, a mere neglect of a statute or legislation over a period of time is not sufficient but it must be firmly established that not only the statute or legislation was completely neglected but also the practice contrary to such statute or legislation has been followed for a considerable long period.Whether doctrine of desuetude attracted in respect of 1962 and 1969 Notifications168. Insofar as 1962 and 1969 Notifications are concerned, I am of the view that doctrine of desuetude is not attracted for more than one reason. In the first place, the Notifications are of 1962 and 1969 non- implementation of such Notifications for 30-35 years is not that long a period which may satisfy the first requirement of the doctrine of desuetude, namely, that the statute or legislation has not been in operation for a very considerable period. Moreover, State of Jharkhand came into existence on November 15, 2000 and it can hardly be said that 1962 and 1969 Notifications remained neglected by the State Government for a very considerableAs a matter of fact, in 2006, the State Government issued a Notification mentioning therein about the reservation made by 1962 and 1969 Notifications. Thus, the first ingredient necessary for invocation of doctrine of desuetude is not satisfied. Secondly, and more importantly, even if it is assumed in favour of the appellants that 1962 and 1969 Notifications remained in disuse for a considerable period having not been implemented for more than 30-35 years, the second necessary ingredient that a practice contrary to the above Notifications has been followed for a considerable long period and such contrary practice has been firmly established is totally absent. As a matter of fact, except stray grant of mining lease for a very small portion of the reserved area to one or two parties there is nothing to suggest much less establish the contrary usage or contrary practice that the reservation made in the two Notifications has been given a complete go by.I have carefully considered the submissions of Mr. Ranjit Kumar. Most of the above submissions were not argued on behalf of Monnet before the High Court. The submissions were confined to the issue of reservation, the legality and validity of 1962, 1969 and 2006 Notifications, consequent illegal action of the State Government in recalling the recommendation and of the Central Government in summarily rejecting theapplication.177. In paragraph 17 of the impugned judgment, the arguments of the learned senior counsel for Monnet have been noticed. It transpires therefrom that many of the above arguments were not advanced including the issue of overlapping with the area of Rungta. In the list of dates/synopsis of the special leave petition, Monnet has not raised any grievance that arguments made on its behalf before the High Court were not correctly recorded or the High Court failed to consider any or some of its arguments. Criticism of the High Court judgment is thus not justified and I am not inclined to go into above submissions of Mr. Ranjit Kumar for the first time.178. It is too late in the day for Monnet to contend that its case could not have been decided with group matters and in any case the matter should be remanded to the High Court for reconsideration on the issues, namely, (a) whether the area recommended for the appellant was overlapping with Rungta only to the extent of 102.25 hectares out of total 705 hectares recommended for appellant; (b) whether after expiry of leasearea was renotified for grant in 1996; (c) what was the reason for the State Government to withdraw the recommendation made in favour of the appellant when the alleged overlapping with Rungta was only to the extent of 102.25 hectares and (d) is withdrawal ofrecommendation arbitrary when reservation vide 1962 Notification did not apply to the area recommended in favour of the appellants.writ petition was decided by the High Court with group matters as the arguments advanced on its behalf were identical to the arguments which were canvassed on behalf of other writ petitioners. The State Government recalled its recommendations by a common communication and the Central Government returned the recommendations and rejected applications for mining lease made by the writ petitioners by a common order.179. The State Government had full power to recall the recommendation made to the Central Government for some good reason. Once 1962 and 1969 Notifications issued by the erstwhile State of Bihar and 2006 Notification issued by the State of Jharkhand have been found by me to be valid and legal, the submissions of Mr. Ranjit Kumar noted above pale in insignificance and are not enough to invalidate the action of the State Government in recalling the recommendation made in favour of Monnet. The valid reservation of subject mining area for exploitation in public sector disentitles Monnet - as well as other appellants - to any relief.180. It is well settled that no one has legal or vested right to the grant or renewal of a mining lease. Monnet cannot claim a legal or vested right for grant of the mining lease. It is true that by the MOU entered into between the State Government and Monnet certain commitments were made by the State Government but firstly, such MOU is not a contract as contemplated under Article 299(1) of the Constitution of India and secondly, in grant of mining lease of a property of the State, the State Government has a discretion to grant or refuse to grant any mining lease. Obviously, the State Government is required to exercise its discretion, subject to the requirement of law. In view of the fact that area is reserved for exploitation of mineral in public sector, it cannot be said that the discretion exercised by the State Government suffers from any legal flaw.181. The case of discrimination vis-a-vis M/s Bihar Sponge Iron Limited argued on behalf of Monnet was not pressed before High Court and is not at all established. The argument with regard to violation of principles of natural justice is also devoid of any substance. The recommendation in favour of Monnet to the Central Government was simply a proposal with certain pre-conditions. For withdrawal of such proposal by the State Government, in my view, no notice was legally required to be given. Moreover, no prejudice has been caused to it by not giving any notice before recalling the recommendation as it had no legal or vested right tothe grant of mininglease. The area is not available for grant of mining lease in the private sector. For all these reasons, I do not find that the case of Monnet stands differently from the other appellants.The next question which arises is, even if the cess is a fee and as such may be relatable to Entries 23 and 66 in List II its validity is still open to challenge because the legislative competence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regulation and development under the control of the Union; and that takes us to Entry 54 in List I. This Entry reads thus:of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the publicThe effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the control of the Union to the extent of such declaration the jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 54, and if the said declaration covers the field occupied by the impu8gned Act the impugned Act would be ultra vires, not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative competence of the State Legislature itself. The position is not in dispute.In M.A. Tulloch & Co. (supra), the Constitution Bench was concerned with legality of certain demands of fee under the Orissa Mining Areas Development Fund Act, 1952, and the same question arose as to whether the provisions of the Orissa Act were hit by the MMDR Act, 1957 in view of Entry No.54 of the Union List. The validity of the state act was canvassed under Entry No.23 of the State List and was accepted as not hit by the provisions of the MMDR Act, 1957. The Court held the Orissa Act and the demand of fee to be valid. What this Court observed in Para 5 is relevant for our purpose………..………….It does not need much argument to realise that to the extent to which the Union Government had taken underhe regulation and development ofso much was withdrawn from the ambit of the power of the State Legislature under Entry 23 and legislation of the State which had rested on the existence of power under that entry would to the extent of thatbe superseded or be rendered ineffective, for here we have a case not of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State legislative power by the declaration which Parliament is empowered to make and has made. | 0 | 49,178 | 9,656 | ### Instruction:
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become functus officio and ceased to have any power to recall the recommendation already made on any ground whatsoever. In this regard he relied upon Jayalakshmi Coelho v. Oswald Joseph Coelho [2001) 4 SCC 181 ].174. Relying upon the decision of this Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi, & Ors., [1978) 1 SCC 405 ] it was submitted that the reasons originally given in an administrative order cannot be supplanted by other reasons in the affidavits or pleadings before the Court. He submitted that as regards Monnet, the initial reason by the State Government was not founded on reservation but later on it tried to bring the ground of reservation in fore by supplanting reasons.175. Mr. Ranjit Kumar vehemently contended that as per the State Government’s own case initially, the land that was recommended for mining lease to Monnet was not under the reserved area and, therefore, Monnet’s writ petition ought not to have been heard and decided with the group matters. He also referred to interim order passed by this Court on August 18, 2008, the meeting that took place between the Central Government and the State Government pursuant thereto and the subsequent interim order of this Court dated December 15, 2008. 176. I have carefully considered the submissions of Mr. Ranjit Kumar. Most of the above submissions were not argued on behalf of Monnet before the High Court. The submissions were confined to the issue of reservation, the legality and validity of 1962, 1969 and 2006 Notifications, consequent illegal action of the State Government in recalling the recommendation and of the Central Government in summarily rejecting the appellant’s application.177. In paragraph 17 of the impugned judgment, the arguments of the learned senior counsel for Monnet have been noticed. It transpires therefrom that many of the above arguments were not advanced including the issue of overlapping with the area of Rungta. In the list of dates/synopsis of the special leave petition, Monnet has not raised any grievance that arguments made on its behalf before the High Court were not correctly recorded or the High Court failed to consider any or some of its arguments. Criticism of the High Court judgment is thus not justified and I am not inclined to go into above submissions of Mr. Ranjit Kumar for the first time.178. It is too late in the day for Monnet to contend that its case could not have been decided with group matters and in any case the matter should be remanded to the High Court for reconsideration on the issues, namely, (a) whether the area recommended for the appellant was overlapping with Rungta only to the extent of 102.25 hectares out of total 705 hectares recommended for appellant; (b) whether after expiry of lease Rungta’s area was renotified for grant in 1996; (c) what was the reason for the State Government to withdraw the recommendation made in favour of the appellant when the alleged overlapping with Rungta was only to the extent of 102.25 hectares and (d) is withdrawal of appellant’s recommendation arbitrary when reservation vide 1962 Notification did not apply to the area recommended in favour of the appellants. Monnet’s writ petition was decided by the High Court with group matters as the arguments advanced on its behalf were identical to the arguments which were canvassed on behalf of other writ petitioners. The State Government recalled its recommendations by a common communication and the Central Government returned the recommendations and rejected applications for mining lease made by the writ petitioners by a common order.179. The State Government had full power to recall the recommendation made to the Central Government for some good reason. Once 1962 and 1969 Notifications issued by the erstwhile State of Bihar and 2006 Notification issued by the State of Jharkhand have been found by me to be valid and legal, the submissions of Mr. Ranjit Kumar noted above pale in insignificance and are not enough to invalidate the action of the State Government in recalling the recommendation made in favour of Monnet. The valid reservation of subject mining area for exploitation in public sector disentitles Monnet - as well as other appellants - to any relief.180. It is well settled that no one has legal or vested right to the grant or renewal of a mining lease. Monnet cannot claim a legal or vested right for grant of the mining lease. It is true that by the MOU entered into between the State Government and Monnet certain commitments were made by the State Government but firstly, such MOU is not a contract as contemplated under Article 299(1) of the Constitution of India and secondly, in grant of mining lease of a property of the State, the State Government has a discretion to grant or refuse to grant any mining lease. Obviously, the State Government is required to exercise its discretion, subject to the requirement of law. In view of the fact that area is reserved for exploitation of mineral in public sector, it cannot be said that the discretion exercised by the State Government suffers from any legal flaw.181. The case of discrimination vis-a-vis M/s Bihar Sponge Iron Limited argued on behalf of Monnet was not pressed before High Court and is not at all established. The argument with regard to violation of principles of natural justice is also devoid of any substance. The recommendation in favour of Monnet to the Central Government was simply a proposal with certain pre-conditions. For withdrawal of such proposal by the State Government, in my view, no notice was legally required to be given. Moreover, no prejudice has been caused to it by not giving any notice before recalling the recommendation as it had no legal or vested right to the grant of mining lease. The area is not available for grant of mining lease in the private sector. For all these reasons, I do not find that the case of Monnet stands differently from the other appellants.
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the State Government to withdraw the recommendation made in favour of the appellant when the alleged overlapping with Rungta was only to the extent of 102.25 hectares and (d) is withdrawal ofrecommendation arbitrary when reservation vide 1962 Notification did not apply to the area recommended in favour of the appellants.writ petition was decided by the High Court with group matters as the arguments advanced on its behalf were identical to the arguments which were canvassed on behalf of other writ petitioners. The State Government recalled its recommendations by a common communication and the Central Government returned the recommendations and rejected applications for mining lease made by the writ petitioners by a common order.179. The State Government had full power to recall the recommendation made to the Central Government for some good reason. Once 1962 and 1969 Notifications issued by the erstwhile State of Bihar and 2006 Notification issued by the State of Jharkhand have been found by me to be valid and legal, the submissions of Mr. Ranjit Kumar noted above pale in insignificance and are not enough to invalidate the action of the State Government in recalling the recommendation made in favour of Monnet. The valid reservation of subject mining area for exploitation in public sector disentitles Monnet - as well as other appellants - to any relief.180. It is well settled that no one has legal or vested right to the grant or renewal of a mining lease. Monnet cannot claim a legal or vested right for grant of the mining lease. It is true that by the MOU entered into between the State Government and Monnet certain commitments were made by the State Government but firstly, such MOU is not a contract as contemplated under Article 299(1) of the Constitution of India and secondly, in grant of mining lease of a property of the State, the State Government has a discretion to grant or refuse to grant any mining lease. Obviously, the State Government is required to exercise its discretion, subject to the requirement of law. In view of the fact that area is reserved for exploitation of mineral in public sector, it cannot be said that the discretion exercised by the State Government suffers from any legal flaw.181. The case of discrimination vis-a-vis M/s Bihar Sponge Iron Limited argued on behalf of Monnet was not pressed before High Court and is not at all established. The argument with regard to violation of principles of natural justice is also devoid of any substance. The recommendation in favour of Monnet to the Central Government was simply a proposal with certain pre-conditions. For withdrawal of such proposal by the State Government, in my view, no notice was legally required to be given. Moreover, no prejudice has been caused to it by not giving any notice before recalling the recommendation as it had no legal or vested right tothe grant of mininglease. The area is not available for grant of mining lease in the private sector. For all these reasons, I do not find that the case of Monnet stands differently from the other appellants.The next question which arises is, even if the cess is a fee and as such may be relatable to Entries 23 and 66 in List II its validity is still open to challenge because the legislative competence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regulation and development under the control of the Union; and that takes us to Entry 54 in List I. This Entry reads thus:of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the publicThe effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the control of the Union to the extent of such declaration the jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 54, and if the said declaration covers the field occupied by the impu8gned Act the impugned Act would be ultra vires, not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative competence of the State Legislature itself. The position is not in dispute.In M.A. Tulloch & Co. (supra), the Constitution Bench was concerned with legality of certain demands of fee under the Orissa Mining Areas Development Fund Act, 1952, and the same question arose as to whether the provisions of the Orissa Act were hit by the MMDR Act, 1957 in view of Entry No.54 of the Union List. The validity of the state act was canvassed under Entry No.23 of the State List and was accepted as not hit by the provisions of the MMDR Act, 1957. The Court held the Orissa Act and the demand of fee to be valid. What this Court observed in Para 5 is relevant for our purpose………..………….It does not need much argument to realise that to the extent to which the Union Government had taken underhe regulation and development ofso much was withdrawn from the ambit of the power of the State Legislature under Entry 23 and legislation of the State which had rested on the existence of power under that entry would to the extent of thatbe superseded or be rendered ineffective, for here we have a case not of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State legislative power by the declaration which Parliament is empowered to make and has made.
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Prabhu Vs. Ramdev & Others | further to any contract not contrary to S. 4 be entitled to all the rights conferred and be subject to all the liabilities imposed on Khatedar tenants under the Act. In other words, as soon as S. 15 came into operation on October 15, 1955, the possession of the respondents, who had been inducted into the land by mortgagee was substantially altered and they became Khatedars by virtue of the statutory provisions prescribed by S. 15. 10. Section 161 of the Act provides that no tenant shall be ejected from his holding otherwise than in accordance with the provisions of this Act. The position thus is clear that as soon as the Act came into force the respondents were entitled to the benefits of S. 15 and cannot be ejected except under the provision of the Act in view of S. 161.It is because of these provisions that the appellant was driven to make the plea that the respondents were trespassers inasmuch as they had voluntarily surrendered possession of the land to him after the redemption decree was passed and had wrongfully entered into possession thereafter. That plea has not been proved and the matter falls to be considered squarely within the provisions of Ss. 15 and 161 of the Act. It is true that S 183 of the Act provides for the ejectment of a trespasser but that section has no application to this case inasmuch as the respondents cannot be held to be trespassers at all.11. Mr. Misra, however, contends that there are two decisions of this Court which support his case that tenants introduced by the mortgagee during the continuance of the mortgage can have no claim to remain in possession of the land after the mortgage itself has been redeemed and he argues that the said principle would justify the appellants claim for ejecting the respondents in the present case. In Mahabir Gope v. Harbans Narain Singh, AIR 1952 SC 205 , this Court has held that as a general rule a person cannot, by transfer or otherwise, confer a better title on another than he himself had. A mortgagee cannot, therefore, create an interest in the mortgaged property which will ensure beyond the termination of his interest as mortgagee. In consequence any lease granted by a mortgagee in possession must come to an end at redemption. A mortgagee, cannot, during the subsistence of the mortgage act in a manner detrimental to the mortgagors interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the fields thereby defeating the mortgagors right to khas possession; such an act would fall within the provisions of S. 76, sub-cl (e) of the Transfer of Property Act. It is on these observations that Mr. Misra founds his argument12. It must be remembered that these observations were made by reference to the normal relationship between the mortgagor and the mortgagee and their respective rights and obligations as determined by relevant provisions of the Transfer of Property Act. Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted into the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period, it was observed, was a different matter altogether. Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act. It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation. That is precisely what has happened in the present case. During the continuance of the mortgage S. 15 of the Act came into operation and that made the respondents Khatedars who are entitled to claim the benefit of S. 161 of the Act.13. The other decision on which Mr. Misra relies is Harihar Prasad Singh v. Deonarain Prasad 1956 SCR 1 : (AIR 1956 SC 305 ). In that case it was held that the persons inducted by mortgagees could not be raiyats within the meaning of S. 5 (3) of the Bihar Tenancy Act so as to acquire any rights of occupancy under S. 21 of the said Act. This conclusion, however, flows from the basic fact that the mortgagees who inducted the tenants into the land were neither proprietors nor tenure holders as defined by the said Act.14. Section 5 (3) of the said Act provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder; and so, when tenants claimed the status of raiyat, in that case it became necessary to consider whether they held the land under a proprietor or under a tenure-holders, and since it was clear that the mortgagees were neither proprietors nor tenure-holders, the tenants inducted by them could not claim the benefit of S. 5 (3). It would thus be seen that this decision turn inevitably upon the relevant provisions of the Bihar Act and the said provisions show that no statutory benefit had been conferred on the tenants as claimed by them under S. 5 (3) of the said Act. This decision, therefore, does not lay down any general proposition on which Mr. Misra can possibly rely.15. In the result, the view taken by the Board about the status of the respondents is right and the High Court was, therefore, justified in dismissing the appellants writ petition filed before it. | 0[ds]It must be remembered that these observations were made by reference to the normal relationship between the mortgagor and the mortgagee and their respective rights and obligations as determined by relevant provisions of the Transfer of Property Act. Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted into the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period, it was observed, was a different matter altogether. Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act. It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation. That is precisely what has happened in the present case. During the continuance of the mortgage S. 15 of the Act came into operation and that made the respondents Khatedars who are entitled to claim the benefit of S. 161 of thethat case it was held that the persons inducted by mortgagees could not be raiyats within the meaning of S. 5 (3) of the Bihar Tenancy Act so as to acquire any rights of occupancy under S. 21 of the said Act. This conclusion, however, flows from the basic fact that the mortgagees who inducted the tenants into the land were neither proprietors nor tenure holders as defined by the said Act.Section 5 (3) of the said Act provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder; and so, when tenants claimed the status of raiyat, in that case it became necessary to consider whether they held the land under a proprietor or under a tenure-holders, and since it was clear that the mortgagees were neither proprietors nor tenure-holders, the tenants inducted by them could not claim the benefit of S. 5 (3). It would thus be seen that this decision turn inevitably upon the relevant provisions of the Bihar Act and the said provisions show that no statutory benefit had been conferred on the tenants as claimed by them under S. 5 (3) of the said Act. This decision, therefore, does not lay down any general proposition on which Mr. Misra can possibly rely.In the result, the view taken by the Board about the status of the respondents is right and the High Court was, therefore, justified in dismissing the appellants writ petition filed before it | 0 | 2,215 | 544 | ### Instruction:
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further to any contract not contrary to S. 4 be entitled to all the rights conferred and be subject to all the liabilities imposed on Khatedar tenants under the Act. In other words, as soon as S. 15 came into operation on October 15, 1955, the possession of the respondents, who had been inducted into the land by mortgagee was substantially altered and they became Khatedars by virtue of the statutory provisions prescribed by S. 15. 10. Section 161 of the Act provides that no tenant shall be ejected from his holding otherwise than in accordance with the provisions of this Act. The position thus is clear that as soon as the Act came into force the respondents were entitled to the benefits of S. 15 and cannot be ejected except under the provision of the Act in view of S. 161.It is because of these provisions that the appellant was driven to make the plea that the respondents were trespassers inasmuch as they had voluntarily surrendered possession of the land to him after the redemption decree was passed and had wrongfully entered into possession thereafter. That plea has not been proved and the matter falls to be considered squarely within the provisions of Ss. 15 and 161 of the Act. It is true that S 183 of the Act provides for the ejectment of a trespasser but that section has no application to this case inasmuch as the respondents cannot be held to be trespassers at all.11. Mr. Misra, however, contends that there are two decisions of this Court which support his case that tenants introduced by the mortgagee during the continuance of the mortgage can have no claim to remain in possession of the land after the mortgage itself has been redeemed and he argues that the said principle would justify the appellants claim for ejecting the respondents in the present case. In Mahabir Gope v. Harbans Narain Singh, AIR 1952 SC 205 , this Court has held that as a general rule a person cannot, by transfer or otherwise, confer a better title on another than he himself had. A mortgagee cannot, therefore, create an interest in the mortgaged property which will ensure beyond the termination of his interest as mortgagee. In consequence any lease granted by a mortgagee in possession must come to an end at redemption. A mortgagee, cannot, during the subsistence of the mortgage act in a manner detrimental to the mortgagors interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the fields thereby defeating the mortgagors right to khas possession; such an act would fall within the provisions of S. 76, sub-cl (e) of the Transfer of Property Act. It is on these observations that Mr. Misra founds his argument12. It must be remembered that these observations were made by reference to the normal relationship between the mortgagor and the mortgagee and their respective rights and obligations as determined by relevant provisions of the Transfer of Property Act. Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted into the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period, it was observed, was a different matter altogether. Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act. It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation. That is precisely what has happened in the present case. During the continuance of the mortgage S. 15 of the Act came into operation and that made the respondents Khatedars who are entitled to claim the benefit of S. 161 of the Act.13. The other decision on which Mr. Misra relies is Harihar Prasad Singh v. Deonarain Prasad 1956 SCR 1 : (AIR 1956 SC 305 ). In that case it was held that the persons inducted by mortgagees could not be raiyats within the meaning of S. 5 (3) of the Bihar Tenancy Act so as to acquire any rights of occupancy under S. 21 of the said Act. This conclusion, however, flows from the basic fact that the mortgagees who inducted the tenants into the land were neither proprietors nor tenure holders as defined by the said Act.14. Section 5 (3) of the said Act provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder; and so, when tenants claimed the status of raiyat, in that case it became necessary to consider whether they held the land under a proprietor or under a tenure-holders, and since it was clear that the mortgagees were neither proprietors nor tenure-holders, the tenants inducted by them could not claim the benefit of S. 5 (3). It would thus be seen that this decision turn inevitably upon the relevant provisions of the Bihar Act and the said provisions show that no statutory benefit had been conferred on the tenants as claimed by them under S. 5 (3) of the said Act. This decision, therefore, does not lay down any general proposition on which Mr. Misra can possibly rely.15. In the result, the view taken by the Board about the status of the respondents is right and the High Court was, therefore, justified in dismissing the appellants writ petition filed before it.
### Response:
0
### Explanation:
It must be remembered that these observations were made by reference to the normal relationship between the mortgagor and the mortgagee and their respective rights and obligations as determined by relevant provisions of the Transfer of Property Act. Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted into the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period, it was observed, was a different matter altogether. Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act. It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation. That is precisely what has happened in the present case. During the continuance of the mortgage S. 15 of the Act came into operation and that made the respondents Khatedars who are entitled to claim the benefit of S. 161 of thethat case it was held that the persons inducted by mortgagees could not be raiyats within the meaning of S. 5 (3) of the Bihar Tenancy Act so as to acquire any rights of occupancy under S. 21 of the said Act. This conclusion, however, flows from the basic fact that the mortgagees who inducted the tenants into the land were neither proprietors nor tenure holders as defined by the said Act.Section 5 (3) of the said Act provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder; and so, when tenants claimed the status of raiyat, in that case it became necessary to consider whether they held the land under a proprietor or under a tenure-holders, and since it was clear that the mortgagees were neither proprietors nor tenure-holders, the tenants inducted by them could not claim the benefit of S. 5 (3). It would thus be seen that this decision turn inevitably upon the relevant provisions of the Bihar Act and the said provisions show that no statutory benefit had been conferred on the tenants as claimed by them under S. 5 (3) of the said Act. This decision, therefore, does not lay down any general proposition on which Mr. Misra can possibly rely.In the result, the view taken by the Board about the status of the respondents is right and the High Court was, therefore, justified in dismissing the appellants writ petition filed before it
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Rochem Separation Systems (I) Pvt.Ltd Vs. Mazagon Dock Ltd. | included the Second Stage RO Plant) is added to its original offer, even then the total amount quoted by respondent No.4 is lower than the original price quoted by the appellant. 14. The entire case of the appellant rests on the premise that it should be allowed to retract from its original offer dated 04.10.2002 and be allowed to submit a "revised" price bid instead of a "supplementary" price bid confined to "additional items/requirements" not covered by the original offer dated 04.10.2002. 15. At no stage was it ever contemplated that the parties be allowed to withdraw/retract from their original offer and submit a fresh/revised offer. The understanding was always clear that the parties would only give their supplementary bid in respect of the additional items/requirements not covered by their original offer. However, as it transpired before the High Court, and now again before this Court that in the guise of submitting its "supplementary bid" in May, 2004, the appellant sought to completely revise its original bid, which is not permissible. Vide letter dated 29.12.2004, the respondent No.1 rightly asked both the appellant and the respondent No.4 to submit their supplementary price bids in the proper format. The said request of the respondent No.1 was complied with by the appellant on 5.1.2005. The writ petition was belatedly filed on 28.03.2005 clearly as an afterthought. There is no infirmity in the decision making process warranting any interference from this Court. Mr. Datta has also drawn our attention to the affidavit in reply of respondent No.1. 16. Respondent No.4 also filed a detailed affidavit in reply to the grounds of appeal. According to learned counsel for respondent No.4 that he has complied with the formalities, terms and conditions and in view thereof, the contract is concluded between respondent No.4, and 1 and hence the question of setting aside and or quashing the tender process or any other reliefs as prayed for in the present appeal does not arise. Respondent No.4 has also denied the averments and allegations raised by the appellant in the present appeal against the 4th respondent with regard to the tender in question. Learned counsel took us through the said counter affidavit. A rejoinder affidavit was filed by the appellant to the affidavit in reply filed on behalf of respondent No.4. Our attention was also drawn to the minutes regarding inspection and the affidavit in rejoinder on behalf of the appellant to the affidavit filed on behalf of respondent No.1. Voluminous documents have been filed before us in this appeal. It was specifically contended that the action of respondent No.1. in rejecting the bids of the appellant was arbitrary, collusive and contrary to the principles laid down by this Court in the acceptance of tenders/bids by the government/its agencies. It was also strenuously contended by Mr. Nariman that the tender conditions would not permit respondent No.1 to consider the bid of respondent No.4 which was admittedly not complete at the time of its first submission and that respondent No.1 could not permit respondent No.4 from re-submitting its bid with additions to the original offer on the ground that the requirements were not understood at the time of submitting the original offer. 17. The Court has, therefore, to see as to whether the action of respondent No.1 in permitting respondent No.4 to include a basic requirement of the original offer subsequently without offering any such opportunity to others is discriminatory and bias. 18. The Court also has to see as to whether the action of respondent No.1 in permitting respondent No.4 to submit supplementary price bid by indicating additions and deletions while at the same time, calling upon the appellant to submit supplementary price bid only by indicating increase over original offer was not discriminatory, arbitrary and bias. A careful perusal of the judgment of the High Court impugned in this appeal would only go to show that the High Court has failed to consider the real issues raised by the appellant and proceeded merely on the basis of a reply filed by appellant No.1 that does not address or touch upon such issues as contended by Mr. Nariman. It is seen from the order passed by the High Court that the writ petition was dismissed at the admission stage. No counter affidavit was filed by the 4th respondent and 4th respondent to whom the approval was granted on 18.02.2005 and the letter of intent was given to them on the same day was not heard at all. Learned counsel for respondents 1,2 and 3 alone were heard. Two points were raised principally to challenge the award in favour of the 4th respondent by the appellant. The first point was in respect of variation in terms offered to respondent No.4 which according to the appellant was a favourable variation. The second submission was that the appellant was ready to decrease the price offered earlier. 19. The second submission was basically to submit that there are malafides on the part of decision making authorities. The High Court without considering the mala fides on the part of the decision making authorities dismissed the writ petition without considering the rival submissions and the documents filed before it. The High Court though stated in its order that there was some variation in the terms had not considered the nature of variation at all. 20. The project in question and the work sought to be undertaken by the tender process is one of national importance. Learned ASG submitted that the tender process is purely of commercial nature and no interference by this Court is called for. The High Court, in our opinion, ought to have heard respondent No.4 in whose favour the letter of intent is now given. The High Court has not disposed of the writ petition after affording opportunity to all the parties and in particular the fourth respondent. In our opinion, the matter requires deep and elaborate consideration in the nature of pleadings filed by the appellant, respondent No.1 and respondent No.4. | 1[ds]16. Respondent No.4 also filed a detailed affidavit in reply to the grounds of appeal. According to learned counsel for respondent No.4 that he has complied with the formalities, terms and conditions and in view thereof, the contract is concluded between respondent No.4, and 1 and hence the question of setting aside and or quashing the tender process or any other reliefs as prayed for in the present appeal does not arise. Respondent No.4 has also denied the averments and allegations raised by the appellant in the present appeal against the 4th respondent with regard to the tender in question. Learned counsel took us through the said counter affidavit. A rejoinder affidavit was filed by the appellant to the affidavit in reply filed on behalf of respondent No.4. Our attention was also drawn to the minutes regarding inspection and the affidavit in rejoinder on behalf of the appellant to the affidavit filed on behalf of respondent No.1. Voluminous documents have been filed before us in this appeal. It was specifically contended that the action of respondent No.1. in rejecting the bids of the appellant was arbitrary, collusive and contrary to the principles laid down by this Court in the acceptance of tenders/bids by the government/its agencies17. The Court has, therefore, to see as to whether the action of respondent No.1 in permitting respondent No.4 to include a basic requirement of the original offer subsequently without offering any such opportunity to others is discriminatory and bias18. The Court also has to see as to whether the action of respondent No.1 in permitting respondent No.4 to submit supplementary price bid by indicating additions and deletions while at the same time, calling upon the appellant to submit supplementary price bid only by indicating increase over original offer was not discriminatory, arbitrary and bias. A careful perusal of the judgment of the High Court impugned in this appeal would only go to show that the High Court has failed to consider the real issues raised by the appellant and proceeded merely on the basis of a reply filed by appellant No.1 that does not address or touch upon such issues as contended by Mr. Nariman. It is seen from the order passed by the High Court that the writ petition was dismissed at the admission stage. No counter affidavit was filed by the 4th respondent and 4th respondent to whom the approval was granted on 18.02.2005 and the letter of intent was given to them on the same day was not heard at all. Learned counsel for respondents 1,2 and 3 alone were heard. Two points were raised principally to challenge the award in favour of the 4th respondent by the appellant. The first point was in respect of variation in terms offered to respondent No.4 which according to the appellant was a favourable variation. The second submission was that the appellant was ready to decrease the price offered earlier19. The second submission was basically to submit that there are malafides on the part of decision making authorities. The High Court without considering the mala fides on the part of the decision making authorities dismissed the writ petition without considering the rival submissions and the documents filed before it. The High Court though stated in its order that there was some variation in the terms had not considered the nature of variation at all20. The project in question and the work sought to be undertaken by the tender process is one of national importance. Learned ASG submitted that the tender process is purely of commercial nature and no interference by this Court is called for. The High Court, in our opinion, ought to have heard respondent No.4 in whose favour the letter of intent is now given. The High Court has not disposed of the writ petition after affording opportunity to all the parties and in particular the fourth respondent. In our opinion, the matter requires deep and elaborate consideration in the nature of pleadings filed by the appellant, respondent No.1 and respondent No.4. | 1 | 3,295 | 713 | ### Instruction:
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included the Second Stage RO Plant) is added to its original offer, even then the total amount quoted by respondent No.4 is lower than the original price quoted by the appellant. 14. The entire case of the appellant rests on the premise that it should be allowed to retract from its original offer dated 04.10.2002 and be allowed to submit a "revised" price bid instead of a "supplementary" price bid confined to "additional items/requirements" not covered by the original offer dated 04.10.2002. 15. At no stage was it ever contemplated that the parties be allowed to withdraw/retract from their original offer and submit a fresh/revised offer. The understanding was always clear that the parties would only give their supplementary bid in respect of the additional items/requirements not covered by their original offer. However, as it transpired before the High Court, and now again before this Court that in the guise of submitting its "supplementary bid" in May, 2004, the appellant sought to completely revise its original bid, which is not permissible. Vide letter dated 29.12.2004, the respondent No.1 rightly asked both the appellant and the respondent No.4 to submit their supplementary price bids in the proper format. The said request of the respondent No.1 was complied with by the appellant on 5.1.2005. The writ petition was belatedly filed on 28.03.2005 clearly as an afterthought. There is no infirmity in the decision making process warranting any interference from this Court. Mr. Datta has also drawn our attention to the affidavit in reply of respondent No.1. 16. Respondent No.4 also filed a detailed affidavit in reply to the grounds of appeal. According to learned counsel for respondent No.4 that he has complied with the formalities, terms and conditions and in view thereof, the contract is concluded between respondent No.4, and 1 and hence the question of setting aside and or quashing the tender process or any other reliefs as prayed for in the present appeal does not arise. Respondent No.4 has also denied the averments and allegations raised by the appellant in the present appeal against the 4th respondent with regard to the tender in question. Learned counsel took us through the said counter affidavit. A rejoinder affidavit was filed by the appellant to the affidavit in reply filed on behalf of respondent No.4. Our attention was also drawn to the minutes regarding inspection and the affidavit in rejoinder on behalf of the appellant to the affidavit filed on behalf of respondent No.1. Voluminous documents have been filed before us in this appeal. It was specifically contended that the action of respondent No.1. in rejecting the bids of the appellant was arbitrary, collusive and contrary to the principles laid down by this Court in the acceptance of tenders/bids by the government/its agencies. It was also strenuously contended by Mr. Nariman that the tender conditions would not permit respondent No.1 to consider the bid of respondent No.4 which was admittedly not complete at the time of its first submission and that respondent No.1 could not permit respondent No.4 from re-submitting its bid with additions to the original offer on the ground that the requirements were not understood at the time of submitting the original offer. 17. The Court has, therefore, to see as to whether the action of respondent No.1 in permitting respondent No.4 to include a basic requirement of the original offer subsequently without offering any such opportunity to others is discriminatory and bias. 18. The Court also has to see as to whether the action of respondent No.1 in permitting respondent No.4 to submit supplementary price bid by indicating additions and deletions while at the same time, calling upon the appellant to submit supplementary price bid only by indicating increase over original offer was not discriminatory, arbitrary and bias. A careful perusal of the judgment of the High Court impugned in this appeal would only go to show that the High Court has failed to consider the real issues raised by the appellant and proceeded merely on the basis of a reply filed by appellant No.1 that does not address or touch upon such issues as contended by Mr. Nariman. It is seen from the order passed by the High Court that the writ petition was dismissed at the admission stage. No counter affidavit was filed by the 4th respondent and 4th respondent to whom the approval was granted on 18.02.2005 and the letter of intent was given to them on the same day was not heard at all. Learned counsel for respondents 1,2 and 3 alone were heard. Two points were raised principally to challenge the award in favour of the 4th respondent by the appellant. The first point was in respect of variation in terms offered to respondent No.4 which according to the appellant was a favourable variation. The second submission was that the appellant was ready to decrease the price offered earlier. 19. The second submission was basically to submit that there are malafides on the part of decision making authorities. The High Court without considering the mala fides on the part of the decision making authorities dismissed the writ petition without considering the rival submissions and the documents filed before it. The High Court though stated in its order that there was some variation in the terms had not considered the nature of variation at all. 20. The project in question and the work sought to be undertaken by the tender process is one of national importance. Learned ASG submitted that the tender process is purely of commercial nature and no interference by this Court is called for. The High Court, in our opinion, ought to have heard respondent No.4 in whose favour the letter of intent is now given. The High Court has not disposed of the writ petition after affording opportunity to all the parties and in particular the fourth respondent. In our opinion, the matter requires deep and elaborate consideration in the nature of pleadings filed by the appellant, respondent No.1 and respondent No.4.
### Response:
1
### Explanation:
16. Respondent No.4 also filed a detailed affidavit in reply to the grounds of appeal. According to learned counsel for respondent No.4 that he has complied with the formalities, terms and conditions and in view thereof, the contract is concluded between respondent No.4, and 1 and hence the question of setting aside and or quashing the tender process or any other reliefs as prayed for in the present appeal does not arise. Respondent No.4 has also denied the averments and allegations raised by the appellant in the present appeal against the 4th respondent with regard to the tender in question. Learned counsel took us through the said counter affidavit. A rejoinder affidavit was filed by the appellant to the affidavit in reply filed on behalf of respondent No.4. Our attention was also drawn to the minutes regarding inspection and the affidavit in rejoinder on behalf of the appellant to the affidavit filed on behalf of respondent No.1. Voluminous documents have been filed before us in this appeal. It was specifically contended that the action of respondent No.1. in rejecting the bids of the appellant was arbitrary, collusive and contrary to the principles laid down by this Court in the acceptance of tenders/bids by the government/its agencies17. The Court has, therefore, to see as to whether the action of respondent No.1 in permitting respondent No.4 to include a basic requirement of the original offer subsequently without offering any such opportunity to others is discriminatory and bias18. The Court also has to see as to whether the action of respondent No.1 in permitting respondent No.4 to submit supplementary price bid by indicating additions and deletions while at the same time, calling upon the appellant to submit supplementary price bid only by indicating increase over original offer was not discriminatory, arbitrary and bias. A careful perusal of the judgment of the High Court impugned in this appeal would only go to show that the High Court has failed to consider the real issues raised by the appellant and proceeded merely on the basis of a reply filed by appellant No.1 that does not address or touch upon such issues as contended by Mr. Nariman. It is seen from the order passed by the High Court that the writ petition was dismissed at the admission stage. No counter affidavit was filed by the 4th respondent and 4th respondent to whom the approval was granted on 18.02.2005 and the letter of intent was given to them on the same day was not heard at all. Learned counsel for respondents 1,2 and 3 alone were heard. Two points were raised principally to challenge the award in favour of the 4th respondent by the appellant. The first point was in respect of variation in terms offered to respondent No.4 which according to the appellant was a favourable variation. The second submission was that the appellant was ready to decrease the price offered earlier19. The second submission was basically to submit that there are malafides on the part of decision making authorities. The High Court without considering the mala fides on the part of the decision making authorities dismissed the writ petition without considering the rival submissions and the documents filed before it. The High Court though stated in its order that there was some variation in the terms had not considered the nature of variation at all20. The project in question and the work sought to be undertaken by the tender process is one of national importance. Learned ASG submitted that the tender process is purely of commercial nature and no interference by this Court is called for. The High Court, in our opinion, ought to have heard respondent No.4 in whose favour the letter of intent is now given. The High Court has not disposed of the writ petition after affording opportunity to all the parties and in particular the fourth respondent. In our opinion, the matter requires deep and elaborate consideration in the nature of pleadings filed by the appellant, respondent No.1 and respondent No.4.
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State Of Madhya Pradesh & Ors Vs. Tikam Das | force from any previous date. Therefore antedating the effect of the amendment of Rule IV is not obnoxious to the scheme nor ultra vires Section, 62.**Under the General Licence Conditions under Section 62;6. The focus must now turn on the disposal of the balance stocks with licensees held on the expiration of the period. Rule XXV regulates the disposal of such balance of intoxicants left with vendors after the expiration of their licenses; if they get new licenses on the expiry of the old in respect of the same premises, they are allowed to retain the balance of stock for the purposes of the new license(r. XXV (a) ). In the event of the fee or duty being enhanced or reduced, r. XXVI makes such change applicable to the balance of stock. It is useful to reproduce r. XXVI here:"XXVI. Procedure to be followed when duty is enhanced or reduced.If it is notified by the Collector that from any particular date the duty leviable on any intoxicants is to be enhanced, all licensed vendors in possession of such intoxicants shall, on the evening preceding that date, deposit their stock with such persons as the District Excise Officer may appoint for the purpose. Such stocks shall remain in deposit untill verified and the District Excise Officer may order that the difference of duty be levied on the balance of the stocks, and the licensee shall then pay such duty within thirty days of the date on which the enhanced rate of duty comes into force:(a)Provided that if such stock or part of such stock be destroyed, the difference of duty shall not be levied on the stock destroyed and(b) Provided also that if the balance of stock so deposited is transferred to another licensed vendor, the difference of duty shall be levied from the transferee before the transfer is completed.The above procedure regarding the deposit and verification of stock of intoxicants consequent on the enhancement of duty shall also apply when duty leviable on any intoxicants is reduced. Refund of the difference in duty consequent on the reduction in its rate may be sanctioned by the Excise Commissioner on receipt of an application from the licensee through the Collector of "the district."A fair reading of this rule yields only one result. The licensed vendor in possession of surplus intoxicants on the date preceding expiry of his license should ordinarily deposit such stock with the appointed Excise Officer.On verification of the actual quantity of such stock, the District Excise Officer may order that the difference of duty be levied on the balance of stocks, and the , licensee shall then pay such duty.... Of course the above procedure primarily visualizes enhancement of duty but is made applicable to reduction of duty when refund of duty shall be made by the State. Rule IV virtually extends this kind of dealing with balance of stocks when the subject matter is license fee as distinguished from duty. Moreover, licensees are bound by the general license conditions (vide condition No. 6 of the license) and the general licence conditions with which we are concerned are set out in Rr. XXV and XXVI already adverted to .7. In this background of the law, the short question is whether the respondent is liable to pay enhanced fee brought about by amendment of the rules on April 25, 1964.8. The first contention that has been raised by the respondent in support of the judgment of the High Court is that in any case subordinate legislation cannot be retrospective and the State Government cannot therefore make rules and give effect to them retroactively. We have already set out the provisions of Sections 62 and 63 bearing on the subject and have no doubt that, in the present case, the statute does authorise the State, as its delegate, to make retroactive rules. Therefore we negative the contention that the enhanced levy of license fee cannot operate as from April 1, 1964.9The second contention, which has found favour with the High Court is that the balance on hand on March 31, 1964 is covered by the license fee already paid and cannot therefore be subjected to the enhanced levy, on April 1, 1964. There is a measure of absurdity in the rule, if this be the construction. Indeed, the High Court itself notices that the words used to tax at a higher rate the balance of stocks would become redundant in R. XXVI. A fair reading of the rule giving full effect to the words used in R. XXVI of the Excise Rules and the explanation added to R. IV (of the Foreign Liquor Rules already extracted) leave us in no doubt that the balance of stocks envisioned by the rules and subjected to enhancement or reduction of duty is such surplus stock as is held immediately before the expiry of the previous license. So construed, in this case the quantity held over on March 31, 1964 becomes liable to enhancement of license fee on April 1, 1964 and that is precisely what the State has claimed.10. Indeed, commonsense suggests no alternative construction., For, otherwise, some persons who by accident have huge stocks left over will not have to pay the enhanced rate of license fee while others with virgin licenses for that year and begin with no stock-on-hand have to pay at a higher rate. Again, if only the respondent had surrendered his surplus stocks on 31-3-1964, as ordinarily he would have had to, had he not been permitted to retain that quantity in view of his getting a fresh license for the same premises, he would have had, to pay the enhanced rate for such leftover stock. Thus, both law and logic, correct construction and commonsense, coincide in the conclusion that the Eagle Cafe Bar owner (the respondent) had to pay the higher fee on the balance of stock as on April 1, 1964. The High Court erred in its interpretation of the rules as applicable to the present situation. | 1[ds]First of all we have to ascertain the scope and area of the rule-making powers, the limitations thereon and the retro-active operation of such rules, There is no doubt that unlike legislation made by a sovereign Legislature, subordinate legislation made by a delegate cannot have retrospective effect unless the rulemaking power in the concerned statute expressly or by necessary implication confers power in this behalf. Ourattention has been drawn to Sections 62 (g) and (h) and 63 in this connection by counsel for theState. The State-Government may make rules for the purpose of carrying out the provisions of the Act (S. 62). Such rules may regulate the amount of fee, the terms and conditions of licences and the scale of fees and the manner of fixing the fees payable in respect of such licenses (62(g) and (h)).This provision, by itself, does not expressly grant power to make retrospective rules. But Section 63 specifically states that all rules made and notifications issued under this Act shall be published in the Official Gazette, and shall have effect from the date of such publication or from such other date as may be specified in thatbehalf. Clearly the Legislature has empowered, its delegate, the State Government not merely to make the rules but to give effect to them from such date as may be specified by the delegate. This provision regarding subordinate legislation does contemplate not merely the power to make rules but to bring them into force from any previous date. Therefore antedating the effect of the amendment of Rule IV is not obnoxious to the scheme nor ultra vires Section,fair reading of this rule yields only one result. The licensed vendor in possession of surplus intoxicants on the date preceding expiry of his license should ordinarily deposit such stock with the appointed Excisehave already set out the provisions of Sections 62 and 63 bearing on the subject and have no doubt that, in the present case, the statute does authorise the State, as its delegate, to make retroactive rules. Therefore we negative the contention that the enhanced levy of license fee cannot operate as from April 1, 1964.There is a measure of absurdity in the rule, if this be the construction. Indeed, the High Court itself notices that the words used to tax at a higher rate the balance of stocks would become redundant in R. XXVI. A fair reading of the rule giving full effect to the words used in R. XXVI of the Excise Rules and the explanation added to R. IV (of the Foreign Liquor Rules already extracted) leave us in no doubt that the balance of stocks envisioned by the rules and subjected to enhancement or reduction of duty is such surplus stock as is held immediately before the expiry of the previous license. So construed, in this case the quantity held over on March 31, 1964 becomes liable to enhancement of license fee on April 1, 1964 and that is precisely what the State has claimed.10. Indeed, commonsense suggests no alternative construction., For, otherwise, some persons who by accident have huge stocks left over will not have to pay the enhanced rate of license fee while others with virgin licenses for that year and begin with no stock-on-hand have to pay at a higher rate. Again, if only the respondent had surrendered his surplus stocks on 31-3-1964, as ordinarily he would have had to, had he not been permitted to retain that quantity in view of his getting a fresh license for the same premises, he would have had, to pay the enhanced rate for such leftover stock. Thus, both law and logic, correct construction and commonsense, coincide in the conclusion that the Eagle Cafe Bar owner (the respondent) had to pay the higher fee on the balance of stock as on April 1, 1964. The High Court erred in its interpretation of the rules as applicable to the presentverification of the actual quantity of such stock, the District Excise Officer may order that the difference of duty be levied on the balance of stocks, and the , licensee shall then pay such duty.... Of course the above procedure primarily visualizes enhancement of duty but is made applicable to reduction of duty when refund of duty shall be made by the State. Rule IV virtually extends this kind of dealing with balance of stocks when the subject matter is license fee as distinguished from duty. Moreover, licensees are bound by the general license conditions (vide condition No. 6 of the license) and the general licence conditions with which we are concerned are set out in Rr. XXV and XXVI already adverted to . | 1 | 2,223 | 860 | ### Instruction:
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force from any previous date. Therefore antedating the effect of the amendment of Rule IV is not obnoxious to the scheme nor ultra vires Section, 62.**Under the General Licence Conditions under Section 62;6. The focus must now turn on the disposal of the balance stocks with licensees held on the expiration of the period. Rule XXV regulates the disposal of such balance of intoxicants left with vendors after the expiration of their licenses; if they get new licenses on the expiry of the old in respect of the same premises, they are allowed to retain the balance of stock for the purposes of the new license(r. XXV (a) ). In the event of the fee or duty being enhanced or reduced, r. XXVI makes such change applicable to the balance of stock. It is useful to reproduce r. XXVI here:"XXVI. Procedure to be followed when duty is enhanced or reduced.If it is notified by the Collector that from any particular date the duty leviable on any intoxicants is to be enhanced, all licensed vendors in possession of such intoxicants shall, on the evening preceding that date, deposit their stock with such persons as the District Excise Officer may appoint for the purpose. Such stocks shall remain in deposit untill verified and the District Excise Officer may order that the difference of duty be levied on the balance of the stocks, and the licensee shall then pay such duty within thirty days of the date on which the enhanced rate of duty comes into force:(a)Provided that if such stock or part of such stock be destroyed, the difference of duty shall not be levied on the stock destroyed and(b) Provided also that if the balance of stock so deposited is transferred to another licensed vendor, the difference of duty shall be levied from the transferee before the transfer is completed.The above procedure regarding the deposit and verification of stock of intoxicants consequent on the enhancement of duty shall also apply when duty leviable on any intoxicants is reduced. Refund of the difference in duty consequent on the reduction in its rate may be sanctioned by the Excise Commissioner on receipt of an application from the licensee through the Collector of "the district."A fair reading of this rule yields only one result. The licensed vendor in possession of surplus intoxicants on the date preceding expiry of his license should ordinarily deposit such stock with the appointed Excise Officer.On verification of the actual quantity of such stock, the District Excise Officer may order that the difference of duty be levied on the balance of stocks, and the , licensee shall then pay such duty.... Of course the above procedure primarily visualizes enhancement of duty but is made applicable to reduction of duty when refund of duty shall be made by the State. Rule IV virtually extends this kind of dealing with balance of stocks when the subject matter is license fee as distinguished from duty. Moreover, licensees are bound by the general license conditions (vide condition No. 6 of the license) and the general licence conditions with which we are concerned are set out in Rr. XXV and XXVI already adverted to .7. In this background of the law, the short question is whether the respondent is liable to pay enhanced fee brought about by amendment of the rules on April 25, 1964.8. The first contention that has been raised by the respondent in support of the judgment of the High Court is that in any case subordinate legislation cannot be retrospective and the State Government cannot therefore make rules and give effect to them retroactively. We have already set out the provisions of Sections 62 and 63 bearing on the subject and have no doubt that, in the present case, the statute does authorise the State, as its delegate, to make retroactive rules. Therefore we negative the contention that the enhanced levy of license fee cannot operate as from April 1, 1964.9The second contention, which has found favour with the High Court is that the balance on hand on March 31, 1964 is covered by the license fee already paid and cannot therefore be subjected to the enhanced levy, on April 1, 1964. There is a measure of absurdity in the rule, if this be the construction. Indeed, the High Court itself notices that the words used to tax at a higher rate the balance of stocks would become redundant in R. XXVI. A fair reading of the rule giving full effect to the words used in R. XXVI of the Excise Rules and the explanation added to R. IV (of the Foreign Liquor Rules already extracted) leave us in no doubt that the balance of stocks envisioned by the rules and subjected to enhancement or reduction of duty is such surplus stock as is held immediately before the expiry of the previous license. So construed, in this case the quantity held over on March 31, 1964 becomes liable to enhancement of license fee on April 1, 1964 and that is precisely what the State has claimed.10. Indeed, commonsense suggests no alternative construction., For, otherwise, some persons who by accident have huge stocks left over will not have to pay the enhanced rate of license fee while others with virgin licenses for that year and begin with no stock-on-hand have to pay at a higher rate. Again, if only the respondent had surrendered his surplus stocks on 31-3-1964, as ordinarily he would have had to, had he not been permitted to retain that quantity in view of his getting a fresh license for the same premises, he would have had, to pay the enhanced rate for such leftover stock. Thus, both law and logic, correct construction and commonsense, coincide in the conclusion that the Eagle Cafe Bar owner (the respondent) had to pay the higher fee on the balance of stock as on April 1, 1964. The High Court erred in its interpretation of the rules as applicable to the present situation.
### Response:
1
### Explanation:
First of all we have to ascertain the scope and area of the rule-making powers, the limitations thereon and the retro-active operation of such rules, There is no doubt that unlike legislation made by a sovereign Legislature, subordinate legislation made by a delegate cannot have retrospective effect unless the rulemaking power in the concerned statute expressly or by necessary implication confers power in this behalf. Ourattention has been drawn to Sections 62 (g) and (h) and 63 in this connection by counsel for theState. The State-Government may make rules for the purpose of carrying out the provisions of the Act (S. 62). Such rules may regulate the amount of fee, the terms and conditions of licences and the scale of fees and the manner of fixing the fees payable in respect of such licenses (62(g) and (h)).This provision, by itself, does not expressly grant power to make retrospective rules. But Section 63 specifically states that all rules made and notifications issued under this Act shall be published in the Official Gazette, and shall have effect from the date of such publication or from such other date as may be specified in thatbehalf. Clearly the Legislature has empowered, its delegate, the State Government not merely to make the rules but to give effect to them from such date as may be specified by the delegate. This provision regarding subordinate legislation does contemplate not merely the power to make rules but to bring them into force from any previous date. Therefore antedating the effect of the amendment of Rule IV is not obnoxious to the scheme nor ultra vires Section,fair reading of this rule yields only one result. The licensed vendor in possession of surplus intoxicants on the date preceding expiry of his license should ordinarily deposit such stock with the appointed Excisehave already set out the provisions of Sections 62 and 63 bearing on the subject and have no doubt that, in the present case, the statute does authorise the State, as its delegate, to make retroactive rules. Therefore we negative the contention that the enhanced levy of license fee cannot operate as from April 1, 1964.There is a measure of absurdity in the rule, if this be the construction. Indeed, the High Court itself notices that the words used to tax at a higher rate the balance of stocks would become redundant in R. XXVI. A fair reading of the rule giving full effect to the words used in R. XXVI of the Excise Rules and the explanation added to R. IV (of the Foreign Liquor Rules already extracted) leave us in no doubt that the balance of stocks envisioned by the rules and subjected to enhancement or reduction of duty is such surplus stock as is held immediately before the expiry of the previous license. So construed, in this case the quantity held over on March 31, 1964 becomes liable to enhancement of license fee on April 1, 1964 and that is precisely what the State has claimed.10. Indeed, commonsense suggests no alternative construction., For, otherwise, some persons who by accident have huge stocks left over will not have to pay the enhanced rate of license fee while others with virgin licenses for that year and begin with no stock-on-hand have to pay at a higher rate. Again, if only the respondent had surrendered his surplus stocks on 31-3-1964, as ordinarily he would have had to, had he not been permitted to retain that quantity in view of his getting a fresh license for the same premises, he would have had, to pay the enhanced rate for such leftover stock. Thus, both law and logic, correct construction and commonsense, coincide in the conclusion that the Eagle Cafe Bar owner (the respondent) had to pay the higher fee on the balance of stock as on April 1, 1964. The High Court erred in its interpretation of the rules as applicable to the presentverification of the actual quantity of such stock, the District Excise Officer may order that the difference of duty be levied on the balance of stocks, and the , licensee shall then pay such duty.... Of course the above procedure primarily visualizes enhancement of duty but is made applicable to reduction of duty when refund of duty shall be made by the State. Rule IV virtually extends this kind of dealing with balance of stocks when the subject matter is license fee as distinguished from duty. Moreover, licensees are bound by the general license conditions (vide condition No. 6 of the license) and the general licence conditions with which we are concerned are set out in Rr. XXV and XXVI already adverted to .
|
C. N. Arunachala Mudaliar Vs. C. A. Muruganatha Mudaliar And Another | intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its were form.The material question which the court would have to decide in such cases is, whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent, gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and in his branch of the family on partition. In other words, the question would be whether the grantor really wanted to make a gift of his properties or to partition the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no presumption that he intended either the one or the other.17. It is in the light of these principles that we would proceed now to examine the facts of this case. The will of his father under which defendant 1 got the two items of Sch. B properties is Ex. P-1 and is dated 6-6-1912. The will is a simple document. It recites that the testator is aged 65 and his properties are all his own which he acquired from no nucleus of ancestral fund. He had three sons, the eldest of whom was defendant1. In substance what the will provides is that after his death, the A Schedule properties would go to his eldest son, the B Sch. properties to his second son and the properties described in Schedule C shall be taken by the youngest. The sons are to enjoy the properties allotted to them with absolute rights and with powers of alienation such as gift exchange, sale, etc. from son to grandson hereditarily. The testator, it seems, had already given certain properties to the wives of his two brothers and to his own wife also. They were to enjoy these properties during the terms of their natural lives and after their death, they would vest in one or the other of his sons, as indicated in the will. Then Schedule property was set apart for the marriage expenses of his third son and an unmarried daughter. Authority was given to his wife to sell this property to defray the marriage expenses with its sale proceeds.18. It seems to us on reading the document in the light of the surrounding circumstances that the dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty. He did not want simply to make a division of his property amongst the heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future. Had the testator contemplated a partition as is contemplated by Hindu Law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter. His brothers wives would not then came into the picture and there could be no question of his wife being authorised to sell a property to defray the marriage expenses of his unmarried son and daughter.19. The testator certainly wanted to make a distribution of his properties in a way different form what would take place in case of intestacy. But what is really material for our present purpose is his intention regarding the kind of interest which his sons were to take in the properties devised to them. Here the will is perfectly explicit and it expressly, vests the sons with absolute rights with full powers of alienation by way of sale, gift and exchange. There is no indication in the will that the properties bequeathed were to be held by the sons for their families or male issues and although the will mentions various other relations, no reference is made to sons sons at all. This indicates that the testator desired that his sons should have full ownership in the properties bequeathed to them and he was content to leave entirely to his sons the care of their own families and children.20. That the testator did not want to confer upon the sons the same rights as they could have on intestacy is further made clear by the two subsequent revocation instruments executed by the testator. By the document Ex.P-2 dated 26-3-1914 he revoked that portion of his will which gave the Schedule C property to his youngest son. As this son had fallen into bad company and was disobedient to his father, he revoked the bequest in his favour and gave the same properties to his other two sons, with a direction that they would pay out of it certain maintenance allowance to their youngest brother or to his family if he got married. There was a second revocation instrument, namely, Ex.P-3 executed on 14-4-1914 by which the earlier revocation was cancelled and the properties intended to be given to the youngest son were taken away from the two brothers and given to his son-in-law and the legatee was directed to hand them over to the third son whenever he would feel confident that the latter had reformed himself properly.21. In our opinion, on reading the will as a whole the conclusion becomes clear that the testator intended the legatees to take the properties in absolute right as their own self-acquisition without being fettered in any way by the rights of their sons and grandsons. In other words, he did not intend that the property should be taken by the sons an ancestral property. | 1[ds]8. For a proper determination of the question it would be convenient first of all to refer to the law laid down in Mitskshara in regard to the fathers right of disposition over his self-acquired property and the interest which his sons or grandsons take in the same.So far the law seems to be fairly settled and there is no room for controversy. The controversy arises, however, on the question as to what kind of interest a son would take in the self-acquired property of his father which he receives by way of gift or testamentary bequest from him, vis- a-vis his own male issue. Does it remain self-acquired properly in his hands also, untrammelled by the rights of his sons and grandsons or does it became ancestral property in his hands, though not obtained by descent, in which his male issues become co-owners with him? This question has been answered in different ways by the different High Courts in India which has resulted in a considerable diversity of judicial opinion.In view of the settled law that a Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rankas ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest. This extreme view, which is supposed to be laid down in the Calcutta case: vide - 6 W. R. 71 (A) referred to above, is sought to be supported on a two-fold ground. The first ground is the well known doctrine of equal ownership of father and son in ancestral property which is enunciated by Mitakshara on the authority of Yagnavalkya. The other ground put forward is that the definition of "self-acquisition" as given by Mitakshara does not and cannot comprehend a gift of this character and consequently such gift cannot but be partible property as between the donee and his sons.It is obvious however, that the son can assert this equal right with the father only when the grandfathers property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normal vest in the father. as ancestral property it and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfathers property comes to the father by virtue of the latters legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands.As the law is accepted and well settled that a Mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its were form.It seems to us on reading the document in the light of the surrounding circumstances that the dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty. He did not want simply to make a division of his property amongst the heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future. Had the testator contemplated a partition as is contemplated by Hindu Law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter. His brothers wives would not then came into the picture and there could be no question of his wife being authorised to sell a property to defray the marriage expenses of his unmarried son andour opinion, on reading the will as a whole the conclusion becomes clear that the testator intended the legatees to take the properties in absolute right as their own self-acquisition without being fettered in any way by the rights of their sons and grandsons. In other words, he did not intend that the property should be taken by the sons an ancestral property. | 1 | 5,226 | 901 | ### Instruction:
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intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its were form.The material question which the court would have to decide in such cases is, whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent, gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and in his branch of the family on partition. In other words, the question would be whether the grantor really wanted to make a gift of his properties or to partition the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no presumption that he intended either the one or the other.17. It is in the light of these principles that we would proceed now to examine the facts of this case. The will of his father under which defendant 1 got the two items of Sch. B properties is Ex. P-1 and is dated 6-6-1912. The will is a simple document. It recites that the testator is aged 65 and his properties are all his own which he acquired from no nucleus of ancestral fund. He had three sons, the eldest of whom was defendant1. In substance what the will provides is that after his death, the A Schedule properties would go to his eldest son, the B Sch. properties to his second son and the properties described in Schedule C shall be taken by the youngest. The sons are to enjoy the properties allotted to them with absolute rights and with powers of alienation such as gift exchange, sale, etc. from son to grandson hereditarily. The testator, it seems, had already given certain properties to the wives of his two brothers and to his own wife also. They were to enjoy these properties during the terms of their natural lives and after their death, they would vest in one or the other of his sons, as indicated in the will. Then Schedule property was set apart for the marriage expenses of his third son and an unmarried daughter. Authority was given to his wife to sell this property to defray the marriage expenses with its sale proceeds.18. It seems to us on reading the document in the light of the surrounding circumstances that the dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty. He did not want simply to make a division of his property amongst the heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future. Had the testator contemplated a partition as is contemplated by Hindu Law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter. His brothers wives would not then came into the picture and there could be no question of his wife being authorised to sell a property to defray the marriage expenses of his unmarried son and daughter.19. The testator certainly wanted to make a distribution of his properties in a way different form what would take place in case of intestacy. But what is really material for our present purpose is his intention regarding the kind of interest which his sons were to take in the properties devised to them. Here the will is perfectly explicit and it expressly, vests the sons with absolute rights with full powers of alienation by way of sale, gift and exchange. There is no indication in the will that the properties bequeathed were to be held by the sons for their families or male issues and although the will mentions various other relations, no reference is made to sons sons at all. This indicates that the testator desired that his sons should have full ownership in the properties bequeathed to them and he was content to leave entirely to his sons the care of their own families and children.20. That the testator did not want to confer upon the sons the same rights as they could have on intestacy is further made clear by the two subsequent revocation instruments executed by the testator. By the document Ex.P-2 dated 26-3-1914 he revoked that portion of his will which gave the Schedule C property to his youngest son. As this son had fallen into bad company and was disobedient to his father, he revoked the bequest in his favour and gave the same properties to his other two sons, with a direction that they would pay out of it certain maintenance allowance to their youngest brother or to his family if he got married. There was a second revocation instrument, namely, Ex.P-3 executed on 14-4-1914 by which the earlier revocation was cancelled and the properties intended to be given to the youngest son were taken away from the two brothers and given to his son-in-law and the legatee was directed to hand them over to the third son whenever he would feel confident that the latter had reformed himself properly.21. In our opinion, on reading the will as a whole the conclusion becomes clear that the testator intended the legatees to take the properties in absolute right as their own self-acquisition without being fettered in any way by the rights of their sons and grandsons. In other words, he did not intend that the property should be taken by the sons an ancestral property.
### Response:
1
### Explanation:
8. For a proper determination of the question it would be convenient first of all to refer to the law laid down in Mitskshara in regard to the fathers right of disposition over his self-acquired property and the interest which his sons or grandsons take in the same.So far the law seems to be fairly settled and there is no room for controversy. The controversy arises, however, on the question as to what kind of interest a son would take in the self-acquired property of his father which he receives by way of gift or testamentary bequest from him, vis- a-vis his own male issue. Does it remain self-acquired properly in his hands also, untrammelled by the rights of his sons and grandsons or does it became ancestral property in his hands, though not obtained by descent, in which his male issues become co-owners with him? This question has been answered in different ways by the different High Courts in India which has resulted in a considerable diversity of judicial opinion.In view of the settled law that a Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rankas ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest. This extreme view, which is supposed to be laid down in the Calcutta case: vide - 6 W. R. 71 (A) referred to above, is sought to be supported on a two-fold ground. The first ground is the well known doctrine of equal ownership of father and son in ancestral property which is enunciated by Mitakshara on the authority of Yagnavalkya. The other ground put forward is that the definition of "self-acquisition" as given by Mitakshara does not and cannot comprehend a gift of this character and consequently such gift cannot but be partible property as between the donee and his sons.It is obvious however, that the son can assert this equal right with the father only when the grandfathers property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normal vest in the father. as ancestral property it and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfathers property comes to the father by virtue of the latters legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands.As the law is accepted and well settled that a Mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its were form.It seems to us on reading the document in the light of the surrounding circumstances that the dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty. He did not want simply to make a division of his property amongst the heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future. Had the testator contemplated a partition as is contemplated by Hindu Law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter. His brothers wives would not then came into the picture and there could be no question of his wife being authorised to sell a property to defray the marriage expenses of his unmarried son andour opinion, on reading the will as a whole the conclusion becomes clear that the testator intended the legatees to take the properties in absolute right as their own self-acquisition without being fettered in any way by the rights of their sons and grandsons. In other words, he did not intend that the property should be taken by the sons an ancestral property.
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Chandra Prakash Vs. Commissioner of Income Tax, Uttar Pradesh | the High Court, the questions having been answered against the assessee, the matter was brought to this court. The conclusion of the High Court that the main purpose behind the partial partition and formation of the partnerships was the avoidance or reduction of the liability of the family business to excess profits tax was accepted by this court. It was held that, if a business had been discontinued and had earned no profit during the chargeable accounting period, no excess profits tax could be charged in respect of such business and that, under section 4 read with section 5, the business could not be regarded as one to which the Act applied. It was further laid down that section 10A could have no application to such a business. The issue whether the Act applied or not to a particular business had to be determined solely with reference to section 5 and section 10A must be construed as applicable only to cases where, the business being found to be one to which the Act applied, a transaction of the kind referred to in the section had been effected. The following observations at pages 401 and 402 may be reproduced with advantage" The learned Attorney-General conceded that, if a person who had been paying excess profits tax, transferred the business to a Part B State, it would not be competent for the Excess Profits Tax Officer to take action under section 10A to make adjustments on the footing that the assessee continued to carry on his business in the same place as before such transfer, even if it wag found that the transfer was effected for the main purpose of avoiding or reducing his liability to excess profits tax. In that case, the Attorney-General admitted, the officer would be running counter to the express prohibition contained in the proviso to section 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court (Commissioner of Excess Profits Tax v. Moholal Maganlal) Bat we fail to appreciate the distinction in principle between that case and the present, for, to both alike, the Act is made inapplicable by section 5. The reasoning of the learned judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business no question could arise of avoiding or reducing any liability to excess profits tax under section 10A, would equally apply to the present case and must lead to the same result. "4. There can be no manner of doubt that in this decision this court approved of the view expressed in the Bombay case which can be most appositely applied to the present case. There the assessee was the selling agent of the Victoria and jubilee Mills. He was also the selling agent of two mills working in the Baroda State. The assessee then floated a private limited company in the name of M. M. Shah Ltd. in Baroda State in which all the shares were held by him and his wife. He resigned his office of selling agents of the two mills in Baroda State and on the same date those two mills appointed M. M. Shah Ltd. to be the selling agents of the mills. The Excess Profits Tax Officer added to the assessees profits the profit derived from the selling agency business of the Baroda State mills. The finding of the department and of the Tribunal was that the assessee had transferred the selling agency to M. M. Shah Ltd., with the main purpose of avoiding or reducing the liability of his business to pay in British India the excess profits tax. Chagla C.J., delivering the judgment of the court, observed that the charging section is section 4, which speaks of charge of excess profits tax to any business to which the Act applies, and, in order to find out to which business the Act applies, the third proviso to section 5 has to be read, and, since exemption from the operation of the Act is given to a business the whole of the profits of which accrue or arise in a Part B State, the business in Baroda State was exempted from tax under the Excess Profits Tax Act; in other words, the business was not a business to which the Act applied. The learned Chief Justice refuted the contention of Sri Nusserwanji P. Engineer based on section 10A by saying " it is impossible to hold that by section 10A the legislature intended to confer upon the Excess Profits Tax Officer the power in effect to repel the third proviso to section 5, to rewrite section 4, and to make a business, the profits of which accrued or arose in a Part B State, liable to payment of excess profits tax ". The argument that the assessee having adopted a device for the purpose of avoiding excess profits tax was also repelled on the reasoning that, if section 10A could not override the third proviso to section 5, the particular facts which led the Excess Profits Tax Officer to put section 10A into operation were irrelevantIn the present case the High Court dissented from the Bombay decision in Commissioner of Excess Profits Tax v. Moholal Maganlal, without appreciating that the view expressed therein had been approved by this court in the case of Sohan Pathak & Sons, even though the latter case was cited before the High Court and is referred to in its judgment5. We are clearly of the view that in the presence of the third proviso to section 5 of the Act, section 10A could not be applied to the present case. The second question which was referred must, therefore, be answerd in the affirmative, namely, in favour of the assessee and against the revenue. It is unnecessary to return any answer to the first question | 1[ds]In Commissioner ofv. Ahmedbhai Umarbhai & Co. the assessee, a firm resident in British India (Bombay), carried on the business of manufacturing and selling groundnut oil. The firm owned three mills at Bombay and one at Raichur which was in Hyderabad State. In all these oil was manufactured. The oil that was manufactured at Raichur was sold partly there and partly in Bombay. The position of thewas that in respect of such oil which was manufactured at Raichur it could not be assessed to tax under the Act. The taxing authorities rejected that contention and the Appellate Tribunal agreed with them. The High Court disagreed with the view of the Tribunal and upheld the assessees contention. On appeal to this court the relevant provisions of the Act were examined including the third proviso to section 5. It was held that the activity which thecarried on at Raichur was a part of its business within the meaning of the third proviso to section 5 and that the profits of a part of the business, namely, the manufacture of oil in the mill at Raichur, accrued or arose at Raichur and that such profits were not assessable to excess profits tax under the third proviso to section 5. It is true that the provisions of section 10A did not come up for consideration in that case and for that reason it may be distinguishable. But the importance of this decision is that the direct point for consideration was whether, on the facts of that case, the third proviso to section 5 could be invoked by theand it was open to it to claim that the work of manufacture of oil carried on at Raichur should be treated as a separate business within the meaning of the proviso. The decision went in favour of the the assessee on that point, it being held that the profits of the manufacturing part of the assessees business had accrued and arose at Raichur and were thus covered by the proviso and could not be subjected to excess profits taxIn Sohan Pathak & Sons v. Commissioner ofthe assessee claimed, in the matter of assessment relating to the chargeable accounting period ending October 8, 1943, that there had been a partial partition among the members of the Hindu undivided family. The family as such had ceased to carry on the business after that date though they continued to remain joint in status. After the partial partition the adult members of the family had formed two partnerships admitting the minors to the benefits thereof and carried on the same business which was being carried on by the Hindu undivided family. The Excess Profits Tax Officer was of the opinion that the main purpose of the creation of two partnerships was to avoid or reduce the tax liability of the assessees to excess profits tax and he made adjustment under section 10A by adding to the profits made by the family till the date of the partition the profits made by the two firms during the chargeable accounting period. Having failed before the Appellate Assistant Commissioner and the Appellate Tribunal and on a reference to the High Court, the questions having been answered against the assessee, the matter was brought to this court. The conclusion of the High Court that the main purpose behind the partial partition and formation of the partnerships was the avoidance or reduction of the liability of the family business to excess profits tax was accepted by this court. It was held that, if a business had been discontinued and had earned no profit during the chargeable accounting period, no excess profits tax could be charged in respect of such business and that, under section 4 read with section 5, the business could not be regarded as one to which the Act applied. It was further laid down that section 10A could have no application to such a business. The issue whether the Act applied or not to a particular business had to be determined solely with reference to section 5 and section 10A must be construed as applicable only to cases where, the business being found to be one to which the Act applied, a transaction of the kind referred to in the section had beenthat case, theadmitted, the officer would be running counter to the express prohibition contained in the proviso to section 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court (Commissioner of Excess Profits Tax v. Moholal Maganlal) Bat we fail to appreciate the distinction in principle between that case and the present, for, to both alike, the Act is made inapplicable by section 5. The reasoning of the learned judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business no question could arise of avoiding or reducing any liability to excess profits tax under section 10A, would equally apply to the present case and must lead to the same result. "4. There can be no manner of doubt that in this decision this court approved of the view expressed in the Bombay case which can be most appositely applied to the present case. There the assessee was the selling agent of the Victoria and jubilee Mills. He was also the selling agent of two mills working in the Baroda State. The assessee then floated a private limited company in the name of M. M. Shah Ltd. in Baroda State in which all the shares were held by him and his wife. He resigned his office of selling agents of the two mills in Baroda State and on the same date those two mills appointed M. M. Shah Ltd. to be the selling agents of the mills. The Excess Profits Tax Officer added to the assessees profits the profit derived from the selling agency business of the Baroda State mills. The finding of the department and of the Tribunal was that the assessee had transferred the selling agency to M. M. Shah Ltd., with the main purpose of avoiding or reducing the liability of his business to pay in British India the excess profits tax. Chagla C.J., delivering the judgment of the court, observed that the charging section is section 4, which speaks of charge of excess profits tax to any business to which the Act applies, and, in order to find out to which business the Act applies, the third proviso to section 5 has to be read, and, since exemption from the operation of the Act is given to a business the whole of the profits of which accrue or arise in a Part B State, the business in Baroda State was exempted from tax under the Excess Profits Tax Act; in other words, the business was not a business to which the Act applied. The learned Chief Justice refuted the contention of Sri Nusserwanji P. Engineer based on section 10A by saying " it is impossible to hold that by section 10A the legislature intended to confer upon the Excess Profits Tax Officer the power in effect to repel the third proviso to section 5, to rewrite section 4, and to make a business, the profits of which accrued or arose in a Part B State, liable to payment of excess profits tax ". The argument that the assessee having adopted a device for the purpose of avoiding excess profits tax was also repelled on the reasoning that, if section 10A could not override the third proviso to section 5, the particular facts which led the Excess Profits Tax Officer to put section 10A into operation were irrelevantIn the present case the High Court dissented from the Bombay decision in Commissioner of Excess Profits Tax v. Moholal Maganlal, without appreciating that the view expressed therein had been approved by this court in the case of Sohan Pathak & Sons, even though the latter case was cited before the High Court and is referred to in its judgment5. We are clearly of the view that in the presence of the third proviso to section 5 of the Act, section 10A could not be applied to the present case. The second question which was referred must, therefore, be answerd in the affirmative, namely, in favour of the assessee and against the revenue. It is unnecessary to return any answer to the first question | 1 | 2,865 | 1,516 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the High Court, the questions having been answered against the assessee, the matter was brought to this court. The conclusion of the High Court that the main purpose behind the partial partition and formation of the partnerships was the avoidance or reduction of the liability of the family business to excess profits tax was accepted by this court. It was held that, if a business had been discontinued and had earned no profit during the chargeable accounting period, no excess profits tax could be charged in respect of such business and that, under section 4 read with section 5, the business could not be regarded as one to which the Act applied. It was further laid down that section 10A could have no application to such a business. The issue whether the Act applied or not to a particular business had to be determined solely with reference to section 5 and section 10A must be construed as applicable only to cases where, the business being found to be one to which the Act applied, a transaction of the kind referred to in the section had been effected. The following observations at pages 401 and 402 may be reproduced with advantage" The learned Attorney-General conceded that, if a person who had been paying excess profits tax, transferred the business to a Part B State, it would not be competent for the Excess Profits Tax Officer to take action under section 10A to make adjustments on the footing that the assessee continued to carry on his business in the same place as before such transfer, even if it wag found that the transfer was effected for the main purpose of avoiding or reducing his liability to excess profits tax. In that case, the Attorney-General admitted, the officer would be running counter to the express prohibition contained in the proviso to section 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court (Commissioner of Excess Profits Tax v. Moholal Maganlal) Bat we fail to appreciate the distinction in principle between that case and the present, for, to both alike, the Act is made inapplicable by section 5. The reasoning of the learned judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business no question could arise of avoiding or reducing any liability to excess profits tax under section 10A, would equally apply to the present case and must lead to the same result. "4. There can be no manner of doubt that in this decision this court approved of the view expressed in the Bombay case which can be most appositely applied to the present case. There the assessee was the selling agent of the Victoria and jubilee Mills. He was also the selling agent of two mills working in the Baroda State. The assessee then floated a private limited company in the name of M. M. Shah Ltd. in Baroda State in which all the shares were held by him and his wife. He resigned his office of selling agents of the two mills in Baroda State and on the same date those two mills appointed M. M. Shah Ltd. to be the selling agents of the mills. The Excess Profits Tax Officer added to the assessees profits the profit derived from the selling agency business of the Baroda State mills. The finding of the department and of the Tribunal was that the assessee had transferred the selling agency to M. M. Shah Ltd., with the main purpose of avoiding or reducing the liability of his business to pay in British India the excess profits tax. Chagla C.J., delivering the judgment of the court, observed that the charging section is section 4, which speaks of charge of excess profits tax to any business to which the Act applies, and, in order to find out to which business the Act applies, the third proviso to section 5 has to be read, and, since exemption from the operation of the Act is given to a business the whole of the profits of which accrue or arise in a Part B State, the business in Baroda State was exempted from tax under the Excess Profits Tax Act; in other words, the business was not a business to which the Act applied. The learned Chief Justice refuted the contention of Sri Nusserwanji P. Engineer based on section 10A by saying " it is impossible to hold that by section 10A the legislature intended to confer upon the Excess Profits Tax Officer the power in effect to repel the third proviso to section 5, to rewrite section 4, and to make a business, the profits of which accrued or arose in a Part B State, liable to payment of excess profits tax ". The argument that the assessee having adopted a device for the purpose of avoiding excess profits tax was also repelled on the reasoning that, if section 10A could not override the third proviso to section 5, the particular facts which led the Excess Profits Tax Officer to put section 10A into operation were irrelevantIn the present case the High Court dissented from the Bombay decision in Commissioner of Excess Profits Tax v. Moholal Maganlal, without appreciating that the view expressed therein had been approved by this court in the case of Sohan Pathak & Sons, even though the latter case was cited before the High Court and is referred to in its judgment5. We are clearly of the view that in the presence of the third proviso to section 5 of the Act, section 10A could not be applied to the present case. The second question which was referred must, therefore, be answerd in the affirmative, namely, in favour of the assessee and against the revenue. It is unnecessary to return any answer to the first question
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minors to the benefits thereof and carried on the same business which was being carried on by the Hindu undivided family. The Excess Profits Tax Officer was of the opinion that the main purpose of the creation of two partnerships was to avoid or reduce the tax liability of the assessees to excess profits tax and he made adjustment under section 10A by adding to the profits made by the family till the date of the partition the profits made by the two firms during the chargeable accounting period. Having failed before the Appellate Assistant Commissioner and the Appellate Tribunal and on a reference to the High Court, the questions having been answered against the assessee, the matter was brought to this court. The conclusion of the High Court that the main purpose behind the partial partition and formation of the partnerships was the avoidance or reduction of the liability of the family business to excess profits tax was accepted by this court. It was held that, if a business had been discontinued and had earned no profit during the chargeable accounting period, no excess profits tax could be charged in respect of such business and that, under section 4 read with section 5, the business could not be regarded as one to which the Act applied. It was further laid down that section 10A could have no application to such a business. The issue whether the Act applied or not to a particular business had to be determined solely with reference to section 5 and section 10A must be construed as applicable only to cases where, the business being found to be one to which the Act applied, a transaction of the kind referred to in the section had beenthat case, theadmitted, the officer would be running counter to the express prohibition contained in the proviso to section 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court (Commissioner of Excess Profits Tax v. Moholal Maganlal) Bat we fail to appreciate the distinction in principle between that case and the present, for, to both alike, the Act is made inapplicable by section 5. The reasoning of the learned judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business no question could arise of avoiding or reducing any liability to excess profits tax under section 10A, would equally apply to the present case and must lead to the same result. "4. There can be no manner of doubt that in this decision this court approved of the view expressed in the Bombay case which can be most appositely applied to the present case. There the assessee was the selling agent of the Victoria and jubilee Mills. He was also the selling agent of two mills working in the Baroda State. The assessee then floated a private limited company in the name of M. M. Shah Ltd. in Baroda State in which all the shares were held by him and his wife. He resigned his office of selling agents of the two mills in Baroda State and on the same date those two mills appointed M. M. Shah Ltd. to be the selling agents of the mills. The Excess Profits Tax Officer added to the assessees profits the profit derived from the selling agency business of the Baroda State mills. The finding of the department and of the Tribunal was that the assessee had transferred the selling agency to M. M. Shah Ltd., with the main purpose of avoiding or reducing the liability of his business to pay in British India the excess profits tax. Chagla C.J., delivering the judgment of the court, observed that the charging section is section 4, which speaks of charge of excess profits tax to any business to which the Act applies, and, in order to find out to which business the Act applies, the third proviso to section 5 has to be read, and, since exemption from the operation of the Act is given to a business the whole of the profits of which accrue or arise in a Part B State, the business in Baroda State was exempted from tax under the Excess Profits Tax Act; in other words, the business was not a business to which the Act applied. The learned Chief Justice refuted the contention of Sri Nusserwanji P. Engineer based on section 10A by saying " it is impossible to hold that by section 10A the legislature intended to confer upon the Excess Profits Tax Officer the power in effect to repel the third proviso to section 5, to rewrite section 4, and to make a business, the profits of which accrued or arose in a Part B State, liable to payment of excess profits tax ". The argument that the assessee having adopted a device for the purpose of avoiding excess profits tax was also repelled on the reasoning that, if section 10A could not override the third proviso to section 5, the particular facts which led the Excess Profits Tax Officer to put section 10A into operation were irrelevantIn the present case the High Court dissented from the Bombay decision in Commissioner of Excess Profits Tax v. Moholal Maganlal, without appreciating that the view expressed therein had been approved by this court in the case of Sohan Pathak & Sons, even though the latter case was cited before the High Court and is referred to in its judgment5. We are clearly of the view that in the presence of the third proviso to section 5 of the Act, section 10A could not be applied to the present case. The second question which was referred must, therefore, be answerd in the affirmative, namely, in favour of the assessee and against the revenue. It is unnecessary to return any answer to the first question
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UNION OF INDIA MINISTRY OF PETROLEUM AND NATURAL GAS THROUGH DIRECTOR GENERAL Vs. HARDY EXPLORATION AND PRODUCTION (INDIA) INC REP. BY MACKENZIE AUTHORISED SIGNATORY | an award made in pursuance of the ICC Rules without specifying the applicable law for the arbitration agreement. It would therefore be appropriate to hold that the question of validity of the award should be determined in accordance with the law of the State in which the arbitration proceedings have taken place i.e. the English Law. Though for the purposes of this decision we would only hold that the conduct of the parties exclude the applicability of Part I. In other words, where the parties have not expressly chosen the law governing the contract as a whole or the arbitration agreement in particular, the law of the country where the arbitration is agreed to be held has primacy. 25. Here, an express choice has been made by the parties regarding the conduct of arbitration i.e. that a dispute shall be finally settled by arbitration according to the ICC Rules of Arbitration. The parties have not chosen the place of arbitration. They have simply chosen the rules that will govern the arbitration, presumably aware of the provision in the rules that the place of arbitration will be decided by ICC vide Article 14(1) of the ICC Rules. ICC having chosen London, leaves no doubt that the place of arbitration will attract the law of UK in all matters concerning arbitration.? The Court further noticed that in the said case, the seat of arbitration had not been specified at all in the arbitration clause. There was a stipulation that the arbitration shall be conducted according to the ICC Rules and opining on the same, it was observed:- ?29. We find that in the present case, the seat of arbitration has not been specified at all in the arbitration clause. There is however an agreement to have the arbitration conducted according to the ICC Rules and thus a willingness that the seat of arbitration may be outside India. In any case, the parties having agreed to have the seat decided by ICC and ICC having chosen London after consulting the parties and the parties having abided by the decision, it must be held that upon the decision of ICC to hold the arbitration in London, the parties agreed that the seat shall be in London for all practical purposes. Therefore, there is an agreement that the arbitration shall be held in London and thus Part I of the Act should be excluded.? 31. In the present case, the place of arbitration was to be agreed upon between the parties. It had not been agreed upon ; and in case of failure of agreement, the Arbitral Tribunal is required to determine the same taking into consideration the convenience of the parties. It is also incumbent on the Arbitral Tribunal that the determination shall be clearly stated in the form and contents of award that is postulated in Article 31. There has been no determination. 32. Be it noted, the word determination requires a positive act to be done. In the case at hand, the only aspect that has been highlighted by Mr. C.U. Singh, learned senior counsel, is that the arbitrator held the meeting at Kuala Lumpur and signed the award. That, in our considered opinion, does not amount to determination. The clause is categorical. The sittings at various places are relatable to venue. It cannot be equated with the seat of arbitration or place of arbitration which has a different connotation as has been held in Reliance Industries Ltd. (I), (II) (supra), Harmony Innovation Shipping Limited (supra) and in Roger Shashoua (supra). 33. The word determination has to be contextually determined. When a place is agreed upon, it gets the status of seat which means the juridical seat. We have already noted that the terms place and seat are used interchangeably. When only the term place is stated or mentioned and no other condition is postulated, it is equivalent to seat and that finalises the facet of jurisdiction. But if a condition precedent is attached to the term place, the said condition has to be satisfied so that the place can become equivalent to seat. In the instant case, as there are two distinct and disjunct riders, either of them have to be satisfied to become a place. As is evident, there is no agreement. As far as determination is concerned, there has been no determination. In Ashok Leyland Limited and State of T.N. and another (2004) 3 SCC 1 , the Court has reproduced the definition of determination from Law Lexicon, 2 nd Edition by Aiyar, P. Ramanatha and Blacks Law Dictionary, 6 th Edition. The relevant paragraphs read thus:- ?Determination or order.—The expression determination signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression order must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasi-judicial. Jaswant Sugar Mills Ltd. v. Lakshmi Chand AIR 1963 SC 677 , 680 (Constitution of India, Article 136).? ?A determination is a final judgment for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken 90 Wis 236, 27 NW 2d 459,463 .? The said test clearly means that the expression of determination signifies an expressive opinion. In the instant case, there has been no adjudication and expression of an opinion. Thus, the word place cannot be used as seat. To elaborate, a venue can become a seat if something else is added to it as a concomitant. But a place unlike seat, at least as is seen in the contract, can become a seat if one of the conditions precedent is satisfied. It does not ipso facto assume the status of seat. Thus understood, Kuala Lumpur is not the seat or place of arbitration and the interchangeable use will not apply in stricto sensu. | 1[ds]23. In view of the aforesaid development of law, there is no confusion with regard to what the seat of arbitration and venue of arbitration mean. There is no shadow of doubt that the arbitration clause has to be read in a holistic manner so as to determine the jurisdiction of the Court. That apart, if there is mention of venue and something else is appended thereto, depending on the nature of the prescription, the Court can come to a conclusion that there is implied exclusion of Part I of the Act. The principle laid down in Sumitomo Heavy Industries Ltd. (supra) has been referred to in Reliance Industries Limited (II) and distinguished. In any case, it has no applicability to a controversy under the Act. The said controversy has to be governed by the BALCO principle or by the agreement or by the principle of implied exclusion as has been held in Bhatia International.In the present case, the place of arbitration was to be agreed upon between the parties. It had not been agreed upon ; and in case of failure of agreement, the Arbitral Tribunal is required to determine the same taking into consideration the convenience of the parties. It is also incumbent on the Arbitral Tribunal that the determination shall be clearly stated in the form and contents of award that is postulated in Article 31. There has been no determination.Be it noted, the word determination requires a positive act to be done. In the case at hand, the only aspect that has been highlighted by Mr. C.U. Singh, learned senior counsel, is that the arbitrator held the meeting at Kuala Lumpur and signed the award. That, in our considered opinion, does not amount to determination. The clause is categorical. The sittings at various places are relatable to venue. It cannot be equated with the seat of arbitration or place of arbitration which has a different connotation as has been held in Reliance Industries Ltd. (I), (II) (supra), Harmony Innovation Shipping Limited (supra) and in Roger Shashoua (supra).The word determination has to be contextually determined. When a place is agreed upon, it gets the status of seat which means the juridical seat. We have already noted that the terms place and seat are used interchangeably. When only the term place is stated or mentioned and no other condition is postulated, it is equivalent to seat and that finalises the facet of jurisdiction. But if a condition precedent is attached to the term place, the said condition has to be satisfied so that the place can become equivalent to seat. In the instant case, as there are two distinct and disjunct riders, either of them have to be satisfied to become a place. As is evident, there is no agreement. As far as determination is concerned, there has been no determination. In Ashok Leyland Limited and State of T.N. and another (2004) 3 SCC 1 , the Court has reproduced the definition of determination from Law Lexicon, 2 nd Edition by Aiyar, P. Ramanatha and Blacks Law Dictionary, 6 th Edition. The relevant paragraphs read thus:or order.—The expression determination signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression order must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial orJaswant Sugar Mills Ltd. v. Lakshmi ChandAIR 1963 SC 677 , 680 (Constitution of India, Articledetermination is a final judgment for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken90 Wis 236, 27 NW 2d 459,463said test clearly means that the expression of determination signifies an expressive opinion. In the instant case, there has been no adjudication and expression of an opinion. Thus, the word place cannot be used as seat. To elaborate, a venue can become a seat if something else is added to it as a concomitant. But a place unlike seat, at least as is seen in the contract, can become a seat if one of the conditions precedent is satisfied. It does not ipso facto assume the status of seat. Thus understood, Kuala Lumpur is not the seat or place of arbitration and the interchangeable use will not apply in stricto sensu. | 1 | 8,959 | 833 | ### Instruction:
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an award made in pursuance of the ICC Rules without specifying the applicable law for the arbitration agreement. It would therefore be appropriate to hold that the question of validity of the award should be determined in accordance with the law of the State in which the arbitration proceedings have taken place i.e. the English Law. Though for the purposes of this decision we would only hold that the conduct of the parties exclude the applicability of Part I. In other words, where the parties have not expressly chosen the law governing the contract as a whole or the arbitration agreement in particular, the law of the country where the arbitration is agreed to be held has primacy. 25. Here, an express choice has been made by the parties regarding the conduct of arbitration i.e. that a dispute shall be finally settled by arbitration according to the ICC Rules of Arbitration. The parties have not chosen the place of arbitration. They have simply chosen the rules that will govern the arbitration, presumably aware of the provision in the rules that the place of arbitration will be decided by ICC vide Article 14(1) of the ICC Rules. ICC having chosen London, leaves no doubt that the place of arbitration will attract the law of UK in all matters concerning arbitration.? The Court further noticed that in the said case, the seat of arbitration had not been specified at all in the arbitration clause. There was a stipulation that the arbitration shall be conducted according to the ICC Rules and opining on the same, it was observed:- ?29. We find that in the present case, the seat of arbitration has not been specified at all in the arbitration clause. There is however an agreement to have the arbitration conducted according to the ICC Rules and thus a willingness that the seat of arbitration may be outside India. In any case, the parties having agreed to have the seat decided by ICC and ICC having chosen London after consulting the parties and the parties having abided by the decision, it must be held that upon the decision of ICC to hold the arbitration in London, the parties agreed that the seat shall be in London for all practical purposes. Therefore, there is an agreement that the arbitration shall be held in London and thus Part I of the Act should be excluded.? 31. In the present case, the place of arbitration was to be agreed upon between the parties. It had not been agreed upon ; and in case of failure of agreement, the Arbitral Tribunal is required to determine the same taking into consideration the convenience of the parties. It is also incumbent on the Arbitral Tribunal that the determination shall be clearly stated in the form and contents of award that is postulated in Article 31. There has been no determination. 32. Be it noted, the word determination requires a positive act to be done. In the case at hand, the only aspect that has been highlighted by Mr. C.U. Singh, learned senior counsel, is that the arbitrator held the meeting at Kuala Lumpur and signed the award. That, in our considered opinion, does not amount to determination. The clause is categorical. The sittings at various places are relatable to venue. It cannot be equated with the seat of arbitration or place of arbitration which has a different connotation as has been held in Reliance Industries Ltd. (I), (II) (supra), Harmony Innovation Shipping Limited (supra) and in Roger Shashoua (supra). 33. The word determination has to be contextually determined. When a place is agreed upon, it gets the status of seat which means the juridical seat. We have already noted that the terms place and seat are used interchangeably. When only the term place is stated or mentioned and no other condition is postulated, it is equivalent to seat and that finalises the facet of jurisdiction. But if a condition precedent is attached to the term place, the said condition has to be satisfied so that the place can become equivalent to seat. In the instant case, as there are two distinct and disjunct riders, either of them have to be satisfied to become a place. As is evident, there is no agreement. As far as determination is concerned, there has been no determination. In Ashok Leyland Limited and State of T.N. and another (2004) 3 SCC 1 , the Court has reproduced the definition of determination from Law Lexicon, 2 nd Edition by Aiyar, P. Ramanatha and Blacks Law Dictionary, 6 th Edition. The relevant paragraphs read thus:- ?Determination or order.—The expression determination signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression order must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasi-judicial. Jaswant Sugar Mills Ltd. v. Lakshmi Chand AIR 1963 SC 677 , 680 (Constitution of India, Article 136).? ?A determination is a final judgment for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken 90 Wis 236, 27 NW 2d 459,463 .? The said test clearly means that the expression of determination signifies an expressive opinion. In the instant case, there has been no adjudication and expression of an opinion. Thus, the word place cannot be used as seat. To elaborate, a venue can become a seat if something else is added to it as a concomitant. But a place unlike seat, at least as is seen in the contract, can become a seat if one of the conditions precedent is satisfied. It does not ipso facto assume the status of seat. Thus understood, Kuala Lumpur is not the seat or place of arbitration and the interchangeable use will not apply in stricto sensu.
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23. In view of the aforesaid development of law, there is no confusion with regard to what the seat of arbitration and venue of arbitration mean. There is no shadow of doubt that the arbitration clause has to be read in a holistic manner so as to determine the jurisdiction of the Court. That apart, if there is mention of venue and something else is appended thereto, depending on the nature of the prescription, the Court can come to a conclusion that there is implied exclusion of Part I of the Act. The principle laid down in Sumitomo Heavy Industries Ltd. (supra) has been referred to in Reliance Industries Limited (II) and distinguished. In any case, it has no applicability to a controversy under the Act. The said controversy has to be governed by the BALCO principle or by the agreement or by the principle of implied exclusion as has been held in Bhatia International.In the present case, the place of arbitration was to be agreed upon between the parties. It had not been agreed upon ; and in case of failure of agreement, the Arbitral Tribunal is required to determine the same taking into consideration the convenience of the parties. It is also incumbent on the Arbitral Tribunal that the determination shall be clearly stated in the form and contents of award that is postulated in Article 31. There has been no determination.Be it noted, the word determination requires a positive act to be done. In the case at hand, the only aspect that has been highlighted by Mr. C.U. Singh, learned senior counsel, is that the arbitrator held the meeting at Kuala Lumpur and signed the award. That, in our considered opinion, does not amount to determination. The clause is categorical. The sittings at various places are relatable to venue. It cannot be equated with the seat of arbitration or place of arbitration which has a different connotation as has been held in Reliance Industries Ltd. (I), (II) (supra), Harmony Innovation Shipping Limited (supra) and in Roger Shashoua (supra).The word determination has to be contextually determined. When a place is agreed upon, it gets the status of seat which means the juridical seat. We have already noted that the terms place and seat are used interchangeably. When only the term place is stated or mentioned and no other condition is postulated, it is equivalent to seat and that finalises the facet of jurisdiction. But if a condition precedent is attached to the term place, the said condition has to be satisfied so that the place can become equivalent to seat. In the instant case, as there are two distinct and disjunct riders, either of them have to be satisfied to become a place. As is evident, there is no agreement. As far as determination is concerned, there has been no determination. In Ashok Leyland Limited and State of T.N. and another (2004) 3 SCC 1 , the Court has reproduced the definition of determination from Law Lexicon, 2 nd Edition by Aiyar, P. Ramanatha and Blacks Law Dictionary, 6 th Edition. The relevant paragraphs read thus:or order.—The expression determination signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression order must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial orJaswant Sugar Mills Ltd. v. Lakshmi ChandAIR 1963 SC 677 , 680 (Constitution of India, Articledetermination is a final judgment for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken90 Wis 236, 27 NW 2d 459,463said test clearly means that the expression of determination signifies an expressive opinion. In the instant case, there has been no adjudication and expression of an opinion. Thus, the word place cannot be used as seat. To elaborate, a venue can become a seat if something else is added to it as a concomitant. But a place unlike seat, at least as is seen in the contract, can become a seat if one of the conditions precedent is satisfied. It does not ipso facto assume the status of seat. Thus understood, Kuala Lumpur is not the seat or place of arbitration and the interchangeable use will not apply in stricto sensu.
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Vijay Kumar Agarwal Vs. National Textile Corporation (South Maharashtra) Limited | employees of the undertaking, The Elphinstone Spinning and weaving Mills Co. Ltd. , Elphinstone Road, Bombay. (7) OUR attention has also been drawn to a recent decision of the Supreme Court in National textile Corporation Ltd. v. Sitaram Mills Ltd. , reported (AIR) 1986 S. C. 1234. In the said reported decision sub-section (2) of Section 3 of the Textile Undertaking (Taking Over of management) Act, 1983, was given a wider meaning to include a piece of land upon which the textile company had erected Industrial galas for sale for the purpose of utilisation of their sale proceed for running the textile undertaking. Emphasis was laid upon the interpretation of the Act in a manner which would subserve and carry out its purpose and object. This decision also supports the contention made on behalf of the petitioners that they were employed in the registered office which was necessary for carrying out the work of the textile undertaking taken over under the Act and, therefore, by operation of law they had continued to be the employees of the said undertaking. (8) MR. Shrikrishna, the learned counsel appearing on behalf of respondent No. 1 has strenuously urged before us that in the facts of this case, the petitioners cannot be deemed to be continued in the employment and cannot be deemed to be any longer employees of the undertaking managed by respondent No. 1 because according to respondent No. 1, the petitioners have continued to work for the respondent. This contention is seriously disputed by the petitioners. It is unnecessary for us to undertake a prolonged trial to satisfactorily resolve this issue. One facet of this question is that even if the petitioners continued after the appointed day as the employees of the undertakings, they were disentitled from receiving their pay during the period they were allegedly serving with respondent No. 2 or any other third party. Since we do not propose to make any other directing the respondent No. 1 to pay any specific sum, it is unnecessary for us to decide whether with effect from December, 1983 full wages should be paid to each one of the petitioners. In appropriate forum such a claim for payment of the said alleged arrears of pay can be made by the petitioners and it would be open to respondent No. 1 to take appropriate defence as regards its liability to pay to the petitioners full or proportionate amount of pay. (9) WE are now unable to allow respondent No. 1 to urge that after the appointed day the petitioners had abandoned and/or left their employment in the undertaking in question. In the first place, such a plea of abandonment or termination by reason of the petitioners allegedly accepting employment elsewhere was not taken in the affidavit-in-reply. Mr. Shrikrishna, the learned counsel, appearing for respondent No. 1 drew our attention to certain annexures to the affidavit-in-reply affirmed by Basant Kumar Kedia on behalf of respondent No. 1. Reliance was also sought to be placed upon the averments and in some of the paragraphs of the said affidavit-in-reply. We are not unmindful of the fact that in paras 3 to 6 of the affidavit-in-reply the deponent had submitted that the petitioners services had come to an end. In our view, such a plea of abandoning or voluntarily giving up of the services by the petitioners would not arise because of the fact that respondent No. 1 had persistently denied employment to the petitioners after the appointed day. Series of letters and representations, copies of which have been annexed to the petition, were submitted by the petitioners, No written reply was given on behalf of respondent No. 1 till the attorney for respondent No. 1 by letter dated February 7, 1986, denied justice to the petitioners. In the said letter significantly, the plea taken on behalf of respondent no. 1 was that the contracts of the petitioners were deemed to have been terminated under the provisions of the Taking Over of Management Act. No assertion, however, has been made on behalf of respondent No. 1 that inspite of the offer made by respondent No. 1 the petitioners had declined to serve in the undertaking. If respondent No. 1 refused to employ the petitioners who repeatedly had offered their services, assuming that the petitioners had received remuneration from any other source, the same by no stretch of imagination can be treated as intentionally and voluntarily giving up of their employment with respondent No. 1. (10) BEFORE we conclude, we may refer to another important factor. The textile company along with several other textile companies had filed writ petition in this Court challenging the vires of the Taking Over of the Management Act being Writ Petition No. 2401 of 1983. So far as the elphinstone Spinning and Weaving Mills Co. Ltd. , was concerned, the rule was made absolute. The National Textile Corporation Ltd. , has filed an appeal in the Supreme Court against the said decision and the same is pending. We understand that during the pendency of the writ petition in this Court in Textile Company was allowed to occupy in its registered office two rooms. The supreme Court has passed an order on the footing that the impugned Taking Over Act was valid and that the assets of the textile undertakings, belonged to the owners, came to be vested in the central Government on the undertakings being taken over. In the above view, we have also decided this writ petition on the footing that the impugned Taking Over Act is valid and the assets of the textile undertaking in questions had vested in the Central Government and that the central Government has transferred the same for the management by respondent No. 1. We may also note that by interim order the Supreme Court has directed the National Textile Corporation to take over along with several other assets the office premises of the textile company. The same is obviously subject to final decision in the appeal. | 1[ds]We understand that the appellant Corporation has preferred an appeal in the Supreme Court against the decision in Appeal No. 177 of 1986 and the same is still pendingUntil the Supreme Court takes a contra view, the decision of this court cited hereinbefore is binding upon us and it is not open to take a contrary view regarding the effect of taking over of management of textile undertakings under the aforesaid Act. For the same reason we are unable to give any countenance to the submission make on behalf of respondent No. 1 that by operation ofn (3) and (4) of Section 4 of the Taking Over of management Act, 1983, all contracts including the contract of the employment stood terminated on the appointed day and the petitioners shall be deemed to have vacated their posts. As already mentioned, these contentions cannot be accepted in view of the decision of this Court which constituted binding precedents. There is considerable substance in the submission made on behalf of the petitioners that by Section 13 of the Taking Over of Management Act the undertaking having vested in the Central Government, the custodian gets the power to terminate the contract of employment. The legal implication was that unless terminated, contract of employment in relation to the textile undertakings subsisting on the appointed day continued. In the instant case no termination of the contract of employment of the petitioners having been made, they have continued as employees of the undertaking, The Elphinstone Spinning and weaving Mills Co. Ltd. , Elphinstone Road, BombayThis decision also supports the contention made on behalf of the petitioners that they were employed in the registered office which was necessary for carrying out the work of the textile undertaking taken over under the Act and, therefore, by operation of law they had continued to be the employees of the said undertakingThis contention is seriously disputed by the petitioners. It is unnecessary for us to undertake a prolonged trial to satisfactorily resolve this issue. One facet of this question is that even if the petitioners continued after the appointed day as the employees of the undertakings, they were disentitled from receiving their pay during the period they were allegedly serving with respondent No. 2 or any other third party. Since we do not propose to make any other directing the respondent No. 1 to pay any specific sum, it is unnecessary for us to decide whether with effect from December, 1983 full wages should be paid to each one of the petitioners. In appropriate forum such a claim for payment of the said alleged arrears of pay can be made by the petitioners and it would be open to respondent No. 1 to take appropriate defence as regards its liability to pay to the petitioners full or proportionate amount of payWe are not unmindful of the fact that in paras 3 to 6 of they the deponent had submitted that the petitioners services had come to an end. In our view, such a plea of abandoning or voluntarily giving up of the services by the petitioners would not arise because of the fact that respondent No. 1 had persistently denied employment to the petitioners after the appointed day. Series of letters and representations, copies of which have been annexed to the petition, were submitted by the petitioners, No written reply was given on behalf of respondent No. 1 till the attorney for respondent No. 1 by letter dated February 7, 1986, denied justice to the petitioners. In the said letter significantly, the plea taken on behalf of respondent no. 1 was that the contracts of the petitioners were deemed to have been terminated under the provisions of the Taking Over of Management Act. No assertion, however, has been made on behalf of respondent No. 1 that inspite of the offer made by respondent No. 1 the petitioners had declined to serve in the undertaking. If respondent No. 1 refused to employ the petitioners who repeatedly had offered their services, assuming that the petitioners had received remuneration from any other source, the same by no stretch of imagination can be treated as intentionally and voluntarily giving up of their employment with respondent No. 1(10) BEFORE we conclude, we may refer to another important factor. The textile company along with several other textile companies had filed writ petition in this Court challenging the vires of the Taking Over of the Management Act being Writ Petition No. 2401 of 1983. So far as the elphinstone Spinning and Weaving Mills Co. Ltd. , was concerned, the rule was made absolute. The National Textile Corporation Ltd. , has filed an appeal in the Supreme Court against the said decision and the same is pending. We understand that during the pendency of the writ petition in this Court in Textile Company was allowed to occupy in its registered office two rooms. The supreme Court has passed an order on the footing that the impugned Taking Over Act was valid and that the assets of the textile undertakings, belonged to the owners, came to be vested in the central Government on the undertakings being taken over. In the above view, we have also decided this writ petition on the footing that the impugned Taking Over Act is valid and the assets of the textile undertaking in questions had vested in the Central Government and that the central Government has transferred the same for the management by respondent No. 1. We may also note that by interim order the Supreme Court has directed the National Textile Corporation to take over along with several other assets the office premises of the textile company. The same is obviously subject to final decision in the appeal. | 1 | 2,443 | 1,034 | ### Instruction:
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employees of the undertaking, The Elphinstone Spinning and weaving Mills Co. Ltd. , Elphinstone Road, Bombay. (7) OUR attention has also been drawn to a recent decision of the Supreme Court in National textile Corporation Ltd. v. Sitaram Mills Ltd. , reported (AIR) 1986 S. C. 1234. In the said reported decision sub-section (2) of Section 3 of the Textile Undertaking (Taking Over of management) Act, 1983, was given a wider meaning to include a piece of land upon which the textile company had erected Industrial galas for sale for the purpose of utilisation of their sale proceed for running the textile undertaking. Emphasis was laid upon the interpretation of the Act in a manner which would subserve and carry out its purpose and object. This decision also supports the contention made on behalf of the petitioners that they were employed in the registered office which was necessary for carrying out the work of the textile undertaking taken over under the Act and, therefore, by operation of law they had continued to be the employees of the said undertaking. (8) MR. Shrikrishna, the learned counsel appearing on behalf of respondent No. 1 has strenuously urged before us that in the facts of this case, the petitioners cannot be deemed to be continued in the employment and cannot be deemed to be any longer employees of the undertaking managed by respondent No. 1 because according to respondent No. 1, the petitioners have continued to work for the respondent. This contention is seriously disputed by the petitioners. It is unnecessary for us to undertake a prolonged trial to satisfactorily resolve this issue. One facet of this question is that even if the petitioners continued after the appointed day as the employees of the undertakings, they were disentitled from receiving their pay during the period they were allegedly serving with respondent No. 2 or any other third party. Since we do not propose to make any other directing the respondent No. 1 to pay any specific sum, it is unnecessary for us to decide whether with effect from December, 1983 full wages should be paid to each one of the petitioners. In appropriate forum such a claim for payment of the said alleged arrears of pay can be made by the petitioners and it would be open to respondent No. 1 to take appropriate defence as regards its liability to pay to the petitioners full or proportionate amount of pay. (9) WE are now unable to allow respondent No. 1 to urge that after the appointed day the petitioners had abandoned and/or left their employment in the undertaking in question. In the first place, such a plea of abandonment or termination by reason of the petitioners allegedly accepting employment elsewhere was not taken in the affidavit-in-reply. Mr. Shrikrishna, the learned counsel, appearing for respondent No. 1 drew our attention to certain annexures to the affidavit-in-reply affirmed by Basant Kumar Kedia on behalf of respondent No. 1. Reliance was also sought to be placed upon the averments and in some of the paragraphs of the said affidavit-in-reply. We are not unmindful of the fact that in paras 3 to 6 of the affidavit-in-reply the deponent had submitted that the petitioners services had come to an end. In our view, such a plea of abandoning or voluntarily giving up of the services by the petitioners would not arise because of the fact that respondent No. 1 had persistently denied employment to the petitioners after the appointed day. Series of letters and representations, copies of which have been annexed to the petition, were submitted by the petitioners, No written reply was given on behalf of respondent No. 1 till the attorney for respondent No. 1 by letter dated February 7, 1986, denied justice to the petitioners. In the said letter significantly, the plea taken on behalf of respondent no. 1 was that the contracts of the petitioners were deemed to have been terminated under the provisions of the Taking Over of Management Act. No assertion, however, has been made on behalf of respondent No. 1 that inspite of the offer made by respondent No. 1 the petitioners had declined to serve in the undertaking. If respondent No. 1 refused to employ the petitioners who repeatedly had offered their services, assuming that the petitioners had received remuneration from any other source, the same by no stretch of imagination can be treated as intentionally and voluntarily giving up of their employment with respondent No. 1. (10) BEFORE we conclude, we may refer to another important factor. The textile company along with several other textile companies had filed writ petition in this Court challenging the vires of the Taking Over of the Management Act being Writ Petition No. 2401 of 1983. So far as the elphinstone Spinning and Weaving Mills Co. Ltd. , was concerned, the rule was made absolute. The National Textile Corporation Ltd. , has filed an appeal in the Supreme Court against the said decision and the same is pending. We understand that during the pendency of the writ petition in this Court in Textile Company was allowed to occupy in its registered office two rooms. The supreme Court has passed an order on the footing that the impugned Taking Over Act was valid and that the assets of the textile undertakings, belonged to the owners, came to be vested in the central Government on the undertakings being taken over. In the above view, we have also decided this writ petition on the footing that the impugned Taking Over Act is valid and the assets of the textile undertaking in questions had vested in the Central Government and that the central Government has transferred the same for the management by respondent No. 1. We may also note that by interim order the Supreme Court has directed the National Textile Corporation to take over along with several other assets the office premises of the textile company. The same is obviously subject to final decision in the appeal.
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### Explanation:
We understand that the appellant Corporation has preferred an appeal in the Supreme Court against the decision in Appeal No. 177 of 1986 and the same is still pendingUntil the Supreme Court takes a contra view, the decision of this court cited hereinbefore is binding upon us and it is not open to take a contrary view regarding the effect of taking over of management of textile undertakings under the aforesaid Act. For the same reason we are unable to give any countenance to the submission make on behalf of respondent No. 1 that by operation ofn (3) and (4) of Section 4 of the Taking Over of management Act, 1983, all contracts including the contract of the employment stood terminated on the appointed day and the petitioners shall be deemed to have vacated their posts. As already mentioned, these contentions cannot be accepted in view of the decision of this Court which constituted binding precedents. There is considerable substance in the submission made on behalf of the petitioners that by Section 13 of the Taking Over of Management Act the undertaking having vested in the Central Government, the custodian gets the power to terminate the contract of employment. The legal implication was that unless terminated, contract of employment in relation to the textile undertakings subsisting on the appointed day continued. In the instant case no termination of the contract of employment of the petitioners having been made, they have continued as employees of the undertaking, The Elphinstone Spinning and weaving Mills Co. Ltd. , Elphinstone Road, BombayThis decision also supports the contention made on behalf of the petitioners that they were employed in the registered office which was necessary for carrying out the work of the textile undertaking taken over under the Act and, therefore, by operation of law they had continued to be the employees of the said undertakingThis contention is seriously disputed by the petitioners. It is unnecessary for us to undertake a prolonged trial to satisfactorily resolve this issue. One facet of this question is that even if the petitioners continued after the appointed day as the employees of the undertakings, they were disentitled from receiving their pay during the period they were allegedly serving with respondent No. 2 or any other third party. Since we do not propose to make any other directing the respondent No. 1 to pay any specific sum, it is unnecessary for us to decide whether with effect from December, 1983 full wages should be paid to each one of the petitioners. In appropriate forum such a claim for payment of the said alleged arrears of pay can be made by the petitioners and it would be open to respondent No. 1 to take appropriate defence as regards its liability to pay to the petitioners full or proportionate amount of payWe are not unmindful of the fact that in paras 3 to 6 of they the deponent had submitted that the petitioners services had come to an end. In our view, such a plea of abandoning or voluntarily giving up of the services by the petitioners would not arise because of the fact that respondent No. 1 had persistently denied employment to the petitioners after the appointed day. Series of letters and representations, copies of which have been annexed to the petition, were submitted by the petitioners, No written reply was given on behalf of respondent No. 1 till the attorney for respondent No. 1 by letter dated February 7, 1986, denied justice to the petitioners. In the said letter significantly, the plea taken on behalf of respondent no. 1 was that the contracts of the petitioners were deemed to have been terminated under the provisions of the Taking Over of Management Act. No assertion, however, has been made on behalf of respondent No. 1 that inspite of the offer made by respondent No. 1 the petitioners had declined to serve in the undertaking. If respondent No. 1 refused to employ the petitioners who repeatedly had offered their services, assuming that the petitioners had received remuneration from any other source, the same by no stretch of imagination can be treated as intentionally and voluntarily giving up of their employment with respondent No. 1(10) BEFORE we conclude, we may refer to another important factor. The textile company along with several other textile companies had filed writ petition in this Court challenging the vires of the Taking Over of the Management Act being Writ Petition No. 2401 of 1983. So far as the elphinstone Spinning and Weaving Mills Co. Ltd. , was concerned, the rule was made absolute. The National Textile Corporation Ltd. , has filed an appeal in the Supreme Court against the said decision and the same is pending. We understand that during the pendency of the writ petition in this Court in Textile Company was allowed to occupy in its registered office two rooms. The supreme Court has passed an order on the footing that the impugned Taking Over Act was valid and that the assets of the textile undertakings, belonged to the owners, came to be vested in the central Government on the undertakings being taken over. In the above view, we have also decided this writ petition on the footing that the impugned Taking Over Act is valid and the assets of the textile undertaking in questions had vested in the Central Government and that the central Government has transferred the same for the management by respondent No. 1. We may also note that by interim order the Supreme Court has directed the National Textile Corporation to take over along with several other assets the office premises of the textile company. The same is obviously subject to final decision in the appeal.
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Hindustan Lever Limited And Another V State Of Maharashtra And Another Vs. | 92B of List I is to be given the widest interpretation, as it should be, it would be clear that as a result of the constitutional changes introduced by the Forty-sixth a amendment in article 269 read with the entry, the tax on consignment of goods now comes within the exclusive legislative field of Parliament The true test to find out what is the pith and substance of the legislation is to ascertain the true intent of the Act which will determine the validity of the Act. If Parliament, in exercise of its plenary power under entry 92B of List I, imposes any tax on the despatch or consignment of goods, Parliament will be competent to do so. It is, therefore, not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch. The argument on the construction of the enactment is misconceived. The charging event is the event the occurrence of which immediately attracts the charge. The taxable event cannot be postponed to the occurrence of the subsequent condition. 31. In that event it would be the subsequent condition the occurrence of which would attract the charge which will be the taxable event. If that is so, then it is a duty on despatch. In that view of the matter, this charge cannot be sustainedAs mentioned hereinbefore, the section has been challenged as being violative of article 14 of the Constitution. This attack is based on the discrimination between the two types of taxes but, in the way we have construed the section, in our opinion, this question does not survive. It was further submitted by Dr. Pal that section 13AA of the Act is violative of article 301 of the Constitution. It makes a discrimination between the dealer/manufacturer who despatches the goods outside the State and other dealers/manufacturers. Both the dealers/manufacturers purchase the goods on payment of purchase tax and use them in the manufacture of taxable goods. The incidence of additional tax on the purchase of goods is attracted only when such manufactured goods are despatched outside the State. If a dealer/manufacturer has to despatch the goods outside the State, he has to pay a higher rate of tax and thus lie is discriminated against as compared to the other dealer/manufacturer who purchases the raw material on payment of 4 per cent. purchase tax, but despatches the raw material straightaway outside the State and uses them in the manufacture of goods outside the State. The High Court held that there was no violation of article 301 of the Constitution. Reference was made to the decision of this Court in Atiabari Tea Co. Ltd. v. State of Assam[1961] 1 SCR 809 , Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan [1963] 1 SCR 491 , Andhra Sugars Ltd. v. State of Andhra Pradesh [1968] 21 STC 212 ; [1968] 1 SCR 705 , State of Madras v. Nataraja Mudaliar (N. K. ) [1968] 22 STC 376 ; [1968] 3 SCR 829 and State of Kerala v. A. B. Abdul Kadir [1970] 1 SCR 700 . 32. One has to determine : does the impugned provision amount to restriction directly and immediately on the trade or commerce movement ? As was observed by this court in Kalyani Stores V. State of Orissa [1966] 1 SCR 865 , imposition of a duty or tax in every case was not tantamount perse to any infringement of article 301 of the Constitution. Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by article 301. A tax in certain cases may directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and its own setting of time and circumstances. Unless the court first comes to the finding or, the available material whether or not there is an infringement of the guarantee under article 301, the further question as to whether the statute is saved under article 304(b) does not arise. The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a freeflow of trade. On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of article 301 cannot be sustained and, therefore, no question whether such imposition is saved under article 304(b) of the Constitution arisesIn the aforesaid view of the matter and for the reasons mentioned hereinbefore, it must be held that so far as the appeals in respect of the Haryana Act are concerned, the High Court was right in the view it took in Goodyear India Ltd.s case [1983] 53 STC 163 (P & H), as well as the views expressed by the High Court in Bata India Ltd. v. State of Haryana [1983] 54 STC 226 (P & H), are correct and are affirmed. The views of the High Court expressed in Des Raj Pushap Kumar Gulatis case [1985] 58 STC 393 (P & H) [FB] are incorrect for the reasons mentioned herein before. The last mentioned judgment and the judgments and orders following that passed by the Punjab and Haryana High Court are, therefore, set aside. In the premises, Civil Appeals Nos. 1166 to 1172 of 1985 (Goodyear India Ltd. v. State of Haryana), Civil Appeals Nos. 1173 to 1177 of 1985 (Gedore (India) P. Ltd. v. State of Haryana), Civil Appeal No. 2674 of 1985 (Kelvinator of India Ltd. v. State of Haryana), Civil Appeal No. 1633 of 1985 (Food Corporation of India v. State of Haryana) and Civil Appeal No. 3033 of 1986 (Food Corporation of India v. State of Haryana) are allowed and the judgment and order of the High Court are set aside. 33. | 0[ds]Depending upon the answer to the question, the validity of the section can be judged. Mr. Dholakia submitted that the Act is, in pith and substance, an Act levying tax on purchase and not one levying tax on consignment, and referred to the observations of this court in State of Karnataka v. Ranganatha Reddy [1978] 1 SCR 641. According to him, the consignment contemplated in section 13AA is only of manufactured goods and no tax is levied under section 13AA in respect of such manufactured goods. He emphasised as aforesaid. It isd that, while determining the nature of a tax, though the standard or the measure on which the tax is levied may be a relevant consideration, it is not the conclusive consideration. One must have regard to such other matters as decided by the Privy Council inl in Council v. Province of Madras [1945] 1 STC 135, not by the name of tax but to its real nature, its pith and substance which must determine into what category it falls. See the observations in R. R. Engineering Co. v. Zila Parishad, Bareilly [1980] 3 SCR 1 , In re : A reference under the Govt. of Ireland Act, 1920 [1936] AC 352 (PC) at 358, and Navnit Lal C. Jhaveri v. K. K. Sen, AA C of I.T. [1965] 56 ITR 198 (SC) [1965] 1 SCR 909 at 915On an analysis, we find that the goods which are despatched are different products from the goods on the purchase of which purchase tax was paid. The Maharashtra legislation has to be viewed in the context of theh Amendment to the Constitution. Theh Amendment introduced article 269(1)(h) which lays down that the proceeds of the tax on consignment of goods (whether the consignment is to the person making it or to any other person) where such consignment takes place in the course ofe trade or commerce, will be assigned to the States. The said amendment also introduced entry No. 92B in List I of the Seventh Schedule. The said amendment was made on the consideration of the 61st Report of the Law Commission. Entry 92B in List I of the Seventh Schedule and article 269(1)(h) of the Constitution bring within its sweep the consignment of goods by a person either to himself or to any other person in the course ofe trade or commerce. Article 269(3) gives power to Parliament to formulate the principles for determining when a consignment of goods takes place in the course ofe trade or commerce. If entry92B of List Iis to be given the widest interpretation, as it should be, it would be clear that as a result of the constitutional changes introduced by theh a amendment in article 269 read with the entry, the tax on consignment of goods now comes within the exclusive legislative field of Parliament The true test to find out what is the pith and substance of the legislation is to ascertain the true intent of the Act which will determine the validity of the Act. If Parliament, in exercise of its plenary power under entry92B of ListI,imposes any tax on the despatch or consignment of goods, Parliament will be competent to do so. It is, therefore, not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch. The argument on the construction of the enactment is misconceived. The charging event is the event the occurrence of which immediately attracts the charge. The taxable event cannot be postponed to the occurrence of the subsequent condition.In that event it would be the subsequent condition the occurrence of which would attract the charge which will be the taxable event. If that is so, then it is a duty on despatch. In that view of the matter, this charge cannot be sustainedAs mentioned hereinbefore, the section has been challenged as being violative of article 14 of the Constitution. This attack is based on the discrimination between the two types of taxes but, in the way we have construed the section, in our opinion, this question does not survive. It was further submitted by Dr. Pal that section 13AA of the Act is violative of article 301 of the Constitution. It makes a discrimination between the dealer/manufacturer who despatches the goods outside the State and other dealers/manufacturers. Both the dealers/manufacturers purchase the goods on payment of purchase tax and use them in the manufacture of taxable goods. The incidence of additional tax on the purchase of goods is attracted only when such manufactured goods are despatched outside the State. If a dealer/manufacturer has to despatch the goods outside the State, he has to pay a higher rate of tax and thus lie is discriminated against as compared to the other dealer/manufacturer who purchases the raw material on payment of 4 per cent. purchase tax, but despatches the raw material straightaway outside the State and uses them in the manufacture of goods outside the State. The High Court held that there was no violation of article 301 of the Constitution. Reference was made to the decision of this Court in Atiabari Tea Co. Ltd. v. State of Assam[1961] 1 SCR 809 , Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan [1963] 1 SCR 491 , Andhra Sugars Ltd. v. State of Andhra Pradesh [1968] 21 STC 212 ; [1968] 1 SCR 705 , State of Madras v. Nataraja Mudaliar (N. K. ) [1968] 22 STC 376 ; [1968] 3 SCR 829 and State of Kerala v. A. B. Abdul Kadir [1970] 1 SCR 700 One has to determine : does the impugned provision amount to restriction directly and immediately on the trade or commerce movement ? As was observed by this court in Kalyani Stores V. State of Orissa [1966] 1 SCR 865 , imposition of a duty or tax in every case was not tantamount perse to any infringement of article 301 of the Constitution. Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by article 301. A tax in certain cases may directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and its own setting of time and circumstances. Unless the court first comes to the finding or, the available material whether or not there is an infringement of the guarantee under article 301, the further question as to whether the statute is saved under article 304(b) does not arise. The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a freeflow of trade. On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of article 301 cannot be sustained and, therefore, no question whether such imposition is saved under article 304(b) of the Constitution arisesIn the aforesaid view of the matter and for the reasons mentioned hereinbefore, it must be held that so far as the appeals in respect of the Haryana Act are concerned, the High Court was right in the view it took in Goodyear India Ltd.s case [1983] 53 STC 163 (P & H), as well as the views expressed by the High Court in Bata India Ltd. v. State of Haryana [1983] 54 STC 226 (P & H), are correct and are affirmed. The views of the High Court expressed in Des Raj Pushap Kumar Gulatis case [1985] 58 STC 393 (P & H) [FB] are incorrect for the reasons mentioned herein before. The last mentioned judgment and the judgments and orders following that passed by the Punjab and Haryana High Court are, therefore, set aside. In the premises, Civil Appeals Nos. 1166 to 1172 of 1985 (Goodyear India Ltd. v. State of Haryana), Civil Appeals Nos. 1173 to 1177 of 1985 (Gedore (India) P. Ltd. v. State of Haryana), Civil Appeal No. 2674 of 1985 (Kelvinator of India Ltd. v. State of Haryana), Civil Appeal No. 1633 of 1985 (Food Corporation of India v. State of Haryana) and Civil Appeal No. 3033 of 1986 (Food Corporation of India v. State of Haryana) are allowed and the judgment and order of the High Court are set aside | 0 | 18,973 | 1,601 | ### 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:
92B of List I is to be given the widest interpretation, as it should be, it would be clear that as a result of the constitutional changes introduced by the Forty-sixth a amendment in article 269 read with the entry, the tax on consignment of goods now comes within the exclusive legislative field of Parliament The true test to find out what is the pith and substance of the legislation is to ascertain the true intent of the Act which will determine the validity of the Act. If Parliament, in exercise of its plenary power under entry 92B of List I, imposes any tax on the despatch or consignment of goods, Parliament will be competent to do so. It is, therefore, not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch. The argument on the construction of the enactment is misconceived. The charging event is the event the occurrence of which immediately attracts the charge. The taxable event cannot be postponed to the occurrence of the subsequent condition. 31. In that event it would be the subsequent condition the occurrence of which would attract the charge which will be the taxable event. If that is so, then it is a duty on despatch. In that view of the matter, this charge cannot be sustainedAs mentioned hereinbefore, the section has been challenged as being violative of article 14 of the Constitution. This attack is based on the discrimination between the two types of taxes but, in the way we have construed the section, in our opinion, this question does not survive. It was further submitted by Dr. Pal that section 13AA of the Act is violative of article 301 of the Constitution. It makes a discrimination between the dealer/manufacturer who despatches the goods outside the State and other dealers/manufacturers. Both the dealers/manufacturers purchase the goods on payment of purchase tax and use them in the manufacture of taxable goods. The incidence of additional tax on the purchase of goods is attracted only when such manufactured goods are despatched outside the State. If a dealer/manufacturer has to despatch the goods outside the State, he has to pay a higher rate of tax and thus lie is discriminated against as compared to the other dealer/manufacturer who purchases the raw material on payment of 4 per cent. purchase tax, but despatches the raw material straightaway outside the State and uses them in the manufacture of goods outside the State. The High Court held that there was no violation of article 301 of the Constitution. Reference was made to the decision of this Court in Atiabari Tea Co. Ltd. v. State of Assam[1961] 1 SCR 809 , Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan [1963] 1 SCR 491 , Andhra Sugars Ltd. v. State of Andhra Pradesh [1968] 21 STC 212 ; [1968] 1 SCR 705 , State of Madras v. Nataraja Mudaliar (N. K. ) [1968] 22 STC 376 ; [1968] 3 SCR 829 and State of Kerala v. A. B. Abdul Kadir [1970] 1 SCR 700 . 32. One has to determine : does the impugned provision amount to restriction directly and immediately on the trade or commerce movement ? As was observed by this court in Kalyani Stores V. State of Orissa [1966] 1 SCR 865 , imposition of a duty or tax in every case was not tantamount perse to any infringement of article 301 of the Constitution. Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by article 301. A tax in certain cases may directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and its own setting of time and circumstances. Unless the court first comes to the finding or, the available material whether or not there is an infringement of the guarantee under article 301, the further question as to whether the statute is saved under article 304(b) does not arise. The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a freeflow of trade. On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of article 301 cannot be sustained and, therefore, no question whether such imposition is saved under article 304(b) of the Constitution arisesIn the aforesaid view of the matter and for the reasons mentioned hereinbefore, it must be held that so far as the appeals in respect of the Haryana Act are concerned, the High Court was right in the view it took in Goodyear India Ltd.s case [1983] 53 STC 163 (P & H), as well as the views expressed by the High Court in Bata India Ltd. v. State of Haryana [1983] 54 STC 226 (P & H), are correct and are affirmed. The views of the High Court expressed in Des Raj Pushap Kumar Gulatis case [1985] 58 STC 393 (P & H) [FB] are incorrect for the reasons mentioned herein before. The last mentioned judgment and the judgments and orders following that passed by the Punjab and Haryana High Court are, therefore, set aside. In the premises, Civil Appeals Nos. 1166 to 1172 of 1985 (Goodyear India Ltd. v. State of Haryana), Civil Appeals Nos. 1173 to 1177 of 1985 (Gedore (India) P. Ltd. v. State of Haryana), Civil Appeal No. 2674 of 1985 (Kelvinator of India Ltd. v. State of Haryana), Civil Appeal No. 1633 of 1985 (Food Corporation of India v. State of Haryana) and Civil Appeal No. 3033 of 1986 (Food Corporation of India v. State of Haryana) are allowed and the judgment and order of the High Court are set aside. 33.
### Response:
0
### Explanation:
takes place in the course ofe trade or commerce. If entry92B of List Iis to be given the widest interpretation, as it should be, it would be clear that as a result of the constitutional changes introduced by theh a amendment in article 269 read with the entry, the tax on consignment of goods now comes within the exclusive legislative field of Parliament The true test to find out what is the pith and substance of the legislation is to ascertain the true intent of the Act which will determine the validity of the Act. If Parliament, in exercise of its plenary power under entry92B of ListI,imposes any tax on the despatch or consignment of goods, Parliament will be competent to do so. It is, therefore, not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch. The argument on the construction of the enactment is misconceived. The charging event is the event the occurrence of which immediately attracts the charge. The taxable event cannot be postponed to the occurrence of the subsequent condition.In that event it would be the subsequent condition the occurrence of which would attract the charge which will be the taxable event. If that is so, then it is a duty on despatch. In that view of the matter, this charge cannot be sustainedAs mentioned hereinbefore, the section has been challenged as being violative of article 14 of the Constitution. This attack is based on the discrimination between the two types of taxes but, in the way we have construed the section, in our opinion, this question does not survive. It was further submitted by Dr. Pal that section 13AA of the Act is violative of article 301 of the Constitution. It makes a discrimination between the dealer/manufacturer who despatches the goods outside the State and other dealers/manufacturers. Both the dealers/manufacturers purchase the goods on payment of purchase tax and use them in the manufacture of taxable goods. The incidence of additional tax on the purchase of goods is attracted only when such manufactured goods are despatched outside the State. If a dealer/manufacturer has to despatch the goods outside the State, he has to pay a higher rate of tax and thus lie is discriminated against as compared to the other dealer/manufacturer who purchases the raw material on payment of 4 per cent. purchase tax, but despatches the raw material straightaway outside the State and uses them in the manufacture of goods outside the State. The High Court held that there was no violation of article 301 of the Constitution. Reference was made to the decision of this Court in Atiabari Tea Co. Ltd. v. State of Assam[1961] 1 SCR 809 , Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan [1963] 1 SCR 491 , Andhra Sugars Ltd. v. State of Andhra Pradesh [1968] 21 STC 212 ; [1968] 1 SCR 705 , State of Madras v. Nataraja Mudaliar (N. K. ) [1968] 22 STC 376 ; [1968] 3 SCR 829 and State of Kerala v. A. B. Abdul Kadir [1970] 1 SCR 700 One has to determine : does the impugned provision amount to restriction directly and immediately on the trade or commerce movement ? As was observed by this court in Kalyani Stores V. State of Orissa [1966] 1 SCR 865 , imposition of a duty or tax in every case was not tantamount perse to any infringement of article 301 of the Constitution. Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by article 301. A tax in certain cases may directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and its own setting of time and circumstances. Unless the court first comes to the finding or, the available material whether or not there is an infringement of the guarantee under article 301, the further question as to whether the statute is saved under article 304(b) does not arise. The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a freeflow of trade. On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of article 301 cannot be sustained and, therefore, no question whether such imposition is saved under article 304(b) of the Constitution arisesIn the aforesaid view of the matter and for the reasons mentioned hereinbefore, it must be held that so far as the appeals in respect of the Haryana Act are concerned, the High Court was right in the view it took in Goodyear India Ltd.s case [1983] 53 STC 163 (P & H), as well as the views expressed by the High Court in Bata India Ltd. v. State of Haryana [1983] 54 STC 226 (P & H), are correct and are affirmed. The views of the High Court expressed in Des Raj Pushap Kumar Gulatis case [1985] 58 STC 393 (P & H) [FB] are incorrect for the reasons mentioned herein before. The last mentioned judgment and the judgments and orders following that passed by the Punjab and Haryana High Court are, therefore, set aside. In the premises, Civil Appeals Nos. 1166 to 1172 of 1985 (Goodyear India Ltd. v. State of Haryana), Civil Appeals Nos. 1173 to 1177 of 1985 (Gedore (India) P. Ltd. v. State of Haryana), Civil Appeal No. 2674 of 1985 (Kelvinator of India Ltd. v. State of Haryana), Civil Appeal No. 1633 of 1985 (Food Corporation of India v. State of Haryana) and Civil Appeal No. 3033 of 1986 (Food Corporation of India v. State of Haryana) are allowed and the judgment and order of the High Court are set aside
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Nazul Ali Molla & Others Vs. State of West Bengal | V. Bhargava, J.1. These are two petitions under Article 32 of the Constitution by two persons who have been detained under Section 3(2) of the Preventive Detention Act. When these petitions came up for hearing, a preliminary objection was raised on behalf of the respondent that both these petitioners had moved the High Court of Calcutta under Article 226 of the Constitution for their relief and in those petitions the rules issued were discharged on July 25, 1969. It was urged that those orders of the High Court not having been brought up in appeal in this court, became final and that these petitions should be held to be barred by the principle of res judicata. for the respondent argued that this court has held in Daryao and Others v. State of U.P. and Others that if a petition under Article 226 of the Constitution is presented in the High Court and is dismissed on merits and not on the grounds of limitation or without a speaking order and no appeal is brought up against the order of the High Court, a petition on similar grounds in the Supreme Court should be held to be barred by res judicata. That case does not, however, apply to the case before us because the court in that case very clearly indicated that there can be not analogy between a petition for habeas corpus and petitions filed either under Article 226 of Article 32 of the Constitution which relate to writs other than a writ of habeas corpus. Learned counsel for the respondent also relied on the decisions in England in Re Hastings (No. 2) and Re Hastings (No. 3). But these cases instead of supporting his proposition, show that even in England until the Habeas Corpus Act, 1960 was passed, the principle recognized was that a person illegally detained had the right to go from court to court though it was held that he could not go to different judges of the same court. In the first case, there was a mention of different and had to be treated as one single court, so that the various courts known by different designations were really divisions of one single court. In this court, there is no decision that a petition under Article 32 of the Constitution for the issue of a writ of habeas corpus is to be held to be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before a High Court has been decide and no appeal is brought up to this court against that decision. We are, therefore, not inclined to accept the point put forward by counsel. But in this case, this point need not detain us, because the material supplied on the records of these two petitions on behalf of the respondent is totally insufficient to invoke the principle of res judicata even if such a principle could be applied. The pleadings in the two petitions before the High Court have not been produced before this court. No even the judgments passed have been brought before us. Whether the rules were discharged after all the grounds now being taken in these petitions did or did not exist when those petitions were presented, and whether they were considered by the High Court. | 1[ds]That case does not, however, apply to the case before us because the court in that case very clearly indicated that there can be not analogy between a petition for habeas corpus and petitions filed either under Article 226 of Article 32 of the Constitution which relate to writs other than a writ of habeasthese cases instead of supporting his proposition, show that even in England until the Habeas Corpus Act, 1960 was passed, the principle recognized was that a person illegally detained had the right to go from court to court though it was held that he could not go to different judges of the same court. In the first case, there was a mention of different and had to be treated as one single court, so that the various courts known by different designations were really divisions of one single court. In this court, there is no decision that a petition under Article 32 of the Constitution for the issue of a writ of habeas corpus is to be held to be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before a High Court has been decide and no appeal is brought up to this court against that decision. We are, therefore, not inclined to accept the point put forward by counsel. But in this case, this point need not detain us, because the material supplied on the records of these two petitions on behalf of the respondent is totally insufficient to invoke the principle of res judicata even if such a principle could be applied. The pleadings in the two petitions before the High Court have not been produced before this court. No even the judgments passed have been brought before us. Whether the rules were discharged after all the grounds now being taken in these petitions did or did not exist when those petitions were presented, and whether they were considered by the High Court.On merits, it is very clear that the detention of both the petitioners has become illegal. Both these petitioners sent their representations to the Government on or about June 14, 1969 and those representations were considered and decided by the Government on the expiry of two months on August 13, 1969, after the Government had already confirmed the order of detention on receipt of the report of the Advisory Board. No satisfactory explanation is given for the delay. It is stated that the representations were sent for report to the District Magistrate who did not recommend release and thereupon the representations were considered and rejected. This does not explain the delay of two months. | 1 | 598 | 477 | ### 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:
V. Bhargava, J.1. These are two petitions under Article 32 of the Constitution by two persons who have been detained under Section 3(2) of the Preventive Detention Act. When these petitions came up for hearing, a preliminary objection was raised on behalf of the respondent that both these petitioners had moved the High Court of Calcutta under Article 226 of the Constitution for their relief and in those petitions the rules issued were discharged on July 25, 1969. It was urged that those orders of the High Court not having been brought up in appeal in this court, became final and that these petitions should be held to be barred by the principle of res judicata. for the respondent argued that this court has held in Daryao and Others v. State of U.P. and Others that if a petition under Article 226 of the Constitution is presented in the High Court and is dismissed on merits and not on the grounds of limitation or without a speaking order and no appeal is brought up against the order of the High Court, a petition on similar grounds in the Supreme Court should be held to be barred by res judicata. That case does not, however, apply to the case before us because the court in that case very clearly indicated that there can be not analogy between a petition for habeas corpus and petitions filed either under Article 226 of Article 32 of the Constitution which relate to writs other than a writ of habeas corpus. Learned counsel for the respondent also relied on the decisions in England in Re Hastings (No. 2) and Re Hastings (No. 3). But these cases instead of supporting his proposition, show that even in England until the Habeas Corpus Act, 1960 was passed, the principle recognized was that a person illegally detained had the right to go from court to court though it was held that he could not go to different judges of the same court. In the first case, there was a mention of different and had to be treated as one single court, so that the various courts known by different designations were really divisions of one single court. In this court, there is no decision that a petition under Article 32 of the Constitution for the issue of a writ of habeas corpus is to be held to be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before a High Court has been decide and no appeal is brought up to this court against that decision. We are, therefore, not inclined to accept the point put forward by counsel. But in this case, this point need not detain us, because the material supplied on the records of these two petitions on behalf of the respondent is totally insufficient to invoke the principle of res judicata even if such a principle could be applied. The pleadings in the two petitions before the High Court have not been produced before this court. No even the judgments passed have been brought before us. Whether the rules were discharged after all the grounds now being taken in these petitions did or did not exist when those petitions were presented, and whether they were considered by the High Court.
### Response:
1
### Explanation:
That case does not, however, apply to the case before us because the court in that case very clearly indicated that there can be not analogy between a petition for habeas corpus and petitions filed either under Article 226 of Article 32 of the Constitution which relate to writs other than a writ of habeasthese cases instead of supporting his proposition, show that even in England until the Habeas Corpus Act, 1960 was passed, the principle recognized was that a person illegally detained had the right to go from court to court though it was held that he could not go to different judges of the same court. In the first case, there was a mention of different and had to be treated as one single court, so that the various courts known by different designations were really divisions of one single court. In this court, there is no decision that a petition under Article 32 of the Constitution for the issue of a writ of habeas corpus is to be held to be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before a High Court has been decide and no appeal is brought up to this court against that decision. We are, therefore, not inclined to accept the point put forward by counsel. But in this case, this point need not detain us, because the material supplied on the records of these two petitions on behalf of the respondent is totally insufficient to invoke the principle of res judicata even if such a principle could be applied. The pleadings in the two petitions before the High Court have not been produced before this court. No even the judgments passed have been brought before us. Whether the rules were discharged after all the grounds now being taken in these petitions did or did not exist when those petitions were presented, and whether they were considered by the High Court.On merits, it is very clear that the detention of both the petitioners has become illegal. Both these petitioners sent their representations to the Government on or about June 14, 1969 and those representations were considered and decided by the Government on the expiry of two months on August 13, 1969, after the Government had already confirmed the order of detention on receipt of the report of the Advisory Board. No satisfactory explanation is given for the delay. It is stated that the representations were sent for report to the District Magistrate who did not recommend release and thereupon the representations were considered and rejected. This does not explain the delay of two months.
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