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Roche Products Limited Vs. Union of India | Limited. The assumption of the Assistant Collector on this count is entirely unfounded and contrary to the orders produced on record. As mentioned hereinabove, the distributorship agreement between the Company and M/s. Voltas Limited provided for supply of various products manufactured by the Company. The products supplied by the Company were described by the Assistant Collector of Central Excise while confirming the show cause notice as fine chemicals. The order of the Assistant Collector dated October 14, 1976 recites that the inquiry made by the Department revealed that the entire production of fine chemicals are supplied to m/s. Voltas Limited and, therefore, the Voltas Limited became related person within the meaning of Section 4 of the Act. In consequence of the order, the Assistant Collector directed the company to file revised price list in accordance with Part IV and pay duty on the basis of the prices charged by M/s. Voltas Limited to their independent dealers on all past clearances from October 1, 1975. The copy of the price list filed by the Company in accordance with the direction on December 15, 1977 reveals that the Company was supplying large number of products manufactured to M/s. Voltas Limited. It is obvious that all these products were covered by the order of the Assistant Collector and the Appellate Authority and were in issue before the revisional authority. The question as regards the assessable value of the goods supplied by the company to M/s. Voltas Limited was to be determined on resolution of issue as to whether the concept of related person under Section 4 can be imported while payment of duty by claiming the benefit under exemption notification dated April 30, 1975. The revisional authority on principle held that the concept is not permissible and M/s. Voltas Limited cannot be treated as related person. Once, this conclusion is reached, then the consequence must follow and the duty recovered by the Department on an erroneous principle is bound to be refunded to the petitioner company. The assumption of the Assistant Collector that the order of the revisional authority deals with only one product is wholly incorrect. The Assistant Collector was also in error in denying refund of Rs. 1726. 97 on the ground that gate Pass No. 1141 dated July 28, 1978 was not produced by the Company while seeking refund. The petitioner Company claims that Gate Pass was sent to the office of the Assistant collector along with another refund application dated October 25, 1979 which was pending and hence could not be enclosed with the refund application filed subsequently. The learned counsel appearing on behalf of the Company produced an acknowledgment receipt from the Office of the assistant Collector about the receipt of this Gate Pass. The respondents have not cared to file any return challenging the claim made by the Company and we fail to appreciate how the claim for Rs. 1726. 97, in these circumstances, can be ignored. The finding of the Assistant Collector that refund of Rs. 40,628. 36 covered by 46 Gate Passes cannot be granted because the duty was not paid under protest is incorrect both factually and in law. The learned counsel appearing on behalf of the petitioner pointed out that the duty was paid under protest during the pendency of the revision petition, and after the decision of the revision petition, the duty recovered cannot be retained. Shri Desai, learned counsel appearing on behalf of the Department, submitted that the procedure prescribed under Rule 233-B of Central Excise rules, 1944 was not followed and, therefore, the order of the Assistant Collector is correct. We are unable to find any merit in this submission. The Company had written letter to the Assistant collector intimating that the duty is paid under protest pending the revision petition and that is more than sufficient compliance with the requirement of Rule 233-B. The Rules are procedural and can by no stretch of imagination be treated as mandatory. Apart from this consideration, the assistant Collector overlooked that the refund is sought because the superior authority has set aside the orders passed by the lower authorities and the refund sought is in the nature of restitution. The Company paid the duty during the interregnum i. e. while the revision petition was pending before the Government and once the revisional authority sets aside the decision of the lower forums, then the duty recovered in pursuance of the orders which were reversed cannot be retained, whether the duty was paid under protest or without any protest. In our judgment, the refusal of refund of Rs. 40,628. 36 is wholly incorrect.( 7 ) THE deduction of Rs. 6,114. 81 and Rs. 2176. 70 by the Assistant Collector on the ground that the refund amount is liable to payment of excise duty under Section 4 of the Act is entirely illegal. The Assistant Collector thought that the amount of refund available to the Company is not likely to be passed on to the customer and, therefore, the amount of refund should form part of the assessable value and the Company is liable to pay excise duty on this amount of refund. The Assistant Collector thereupon decided to deduct Rs. 6114. 81 and Rs. 2176. 70 on this count. We are unable to appreciate how the Assistant Collector can resort to the provisions of Section 4 of the Act to charge duty on the amount of refund. We do not find any such provision under section 4 to authorise the Assistant Collector to levy duty on the amount of refund. The assistant Collector also overlooked that the refund is claimed because under erroneous orders, the Department recovered the excess duty from the Company. As soon as those orders are set aside, the Company would be entitled to get the refund and this refund cannot be denied under any provisions of the Act. In our judgment, the Assistant Collector was in error in rejecting the claim of Rs. 2,30,831. 39 and sanctioning only Rs. 1,11,677. 81. | 1[ds]We find considerable merit in the submission of the learned counsel. The first ground for refusing the refund is that the revisional authority had granted relief only in respect of product Rovimix and not in respect of other products supplied by the Company to M/s. Voltas Limited. The assumption of the Assistant Collector on this count is entirely unfounded and contrary to the orders produced on record. As mentioned hereinabove, the distributorship agreement between the Company and M/s. Voltas Limited provided for supply of various products manufactured by the Company. The products supplied by the Company were described by the Assistant Collector of Central Excise while confirming the show cause notice as fine chemicals. The order of the Assistant Collector dated October 14, 1976 recites that the inquiry made by the Department revealed that the entire production of fine chemicals are supplied to m/s. Voltas Limited and, therefore, the Voltas Limited became related person within the meaning of Section 4 of the Act. In consequence of the order, the Assistant Collector directed the company to file revised price list in accordance with Part IV and pay duty on the basis of the prices charged by M/s. Voltas Limited to their independent dealers on all past clearances from October 1, 1975. The copy of the price list filed by the Company in accordance with the direction on December 15, 1977 reveals that the Company was supplying large number of products manufactured to M/s. Voltas Limited. It is obvious that all these products were covered by the order of the Assistant Collector and the Appellate Authority and were in issue before the revisional authority. The question as regards the assessable value of the goods supplied by the company to M/s. Voltas Limited was to be determined on resolution of issue as to whether the concept of related person under Section 4 can be imported while payment of duty by claiming the benefit under exemption notification dated April 30, 1975. The revisional authority on principle held that the concept is not permissible and M/s. Voltas Limited cannot be treated as related person. Once, this conclusion is reached, then the consequence must follow and the duty recovered by the Department on an erroneous principle is bound to be refunded to the petitioner company. The assumption of the Assistant Collector that the order of the revisional authority deals with only one product is wholly incorrect. The Assistant Collector was also in error in denying refund of Rs. 1726. 97 on the ground that gate Pass No. 1141 dated July 28, 1978 was not produced by the Company while seeking refund. The petitioner Company claims that Gate Pass was sent to the office of the Assistant collector along with another refund application dated October 25, 1979 which was pending and hence could not be enclosed with the refund application filed subsequently. The learned counsel appearing on behalf of the Company produced an acknowledgment receipt from the Office of the assistant Collector about the receipt of this Gate Pass. The respondents have not cared to file any return challenging the claim made by the Company and we fail to appreciate how the claim for Rs. 1726. 97, in these circumstances, can be ignored. The finding of the Assistant Collector that refund of Rs. 40,628. 36 covered by 46 Gate Passes cannot be granted because the duty was not paid under protest is incorrect both factually and in law. The learned counsel appearing on behalf of the petitioner pointed out that the duty was paid under protest during the pendency of the revision petition, and after the decision of the revision petition, the duty recovered cannot be retained. Shri Desai, learned counsel appearing on behalf of the Department, submitted that the procedure prescribed under Ruleof Central Excise rules, 1944 was not followed and, therefore, the order of the Assistant Collector is correct. We are unable to find any merit in this submission. The Company had written letter to the Assistant collector intimating that the duty is paid under protest pending the revision petition and that is more than sufficient compliance with the requirement of RuleThe Rules are procedural and can by no stretch of imagination be treated as mandatory. Apart from this consideration, the assistant Collector overlooked that the refund is sought because the superior authority has set aside the orders passed by the lower authorities and the refund sought is in the nature of restitution. The Company paid the duty during the interregnum i. e. while the revision petition was pending before the Government and once the revisional authority sets aside the decision of the lower forums, then the duty recovered in pursuance of the orders which were reversed cannot be retained, whether the duty was paid under protest or without any protest. In our judgment, the refusal of refund of Rs. 40,628. 36 is wholly7 ) THE deduction of Rs. 6,114. 81 and Rs. 2176. 70 by the Assistant Collector on the ground that the refund amount is liable to payment of excise duty under Section 4 of the Act is entirely illegal. The Assistant Collector thought that the amount of refund available to the Company is not likely to be passed on to the customer and, therefore, the amount of refund should form part of the assessable value and the Company is liable to pay excise duty on this amount of refund. The Assistant Collector thereupon decided to deduct Rs. 6114. 81 and Rs. 2176. 70 on this count. We are unable to appreciate how the Assistant Collector can resort to the provisions of Section 4 of the Act to charge duty on the amount of refund. We do not find any such provision under section 4 to authorise the Assistant Collector to levy duty on the amount of refund. The assistant Collector also overlooked that the refund is claimed because under erroneous orders, the Department recovered the excess duty from the Company. As soon as those orders are set aside, the Company would be entitled to get the refund and this refund cannot be denied under any provisions of the Act. In our judgment, the Assistant Collector was in error in rejecting the claim of Rs. 2,30,831. 39 and sanctioning only Rs. 1,11,677. 81. | 1 | 2,198 | 1,139 | ### Instruction:
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Limited. The assumption of the Assistant Collector on this count is entirely unfounded and contrary to the orders produced on record. As mentioned hereinabove, the distributorship agreement between the Company and M/s. Voltas Limited provided for supply of various products manufactured by the Company. The products supplied by the Company were described by the Assistant Collector of Central Excise while confirming the show cause notice as fine chemicals. The order of the Assistant Collector dated October 14, 1976 recites that the inquiry made by the Department revealed that the entire production of fine chemicals are supplied to m/s. Voltas Limited and, therefore, the Voltas Limited became related person within the meaning of Section 4 of the Act. In consequence of the order, the Assistant Collector directed the company to file revised price list in accordance with Part IV and pay duty on the basis of the prices charged by M/s. Voltas Limited to their independent dealers on all past clearances from October 1, 1975. The copy of the price list filed by the Company in accordance with the direction on December 15, 1977 reveals that the Company was supplying large number of products manufactured to M/s. Voltas Limited. It is obvious that all these products were covered by the order of the Assistant Collector and the Appellate Authority and were in issue before the revisional authority. The question as regards the assessable value of the goods supplied by the company to M/s. Voltas Limited was to be determined on resolution of issue as to whether the concept of related person under Section 4 can be imported while payment of duty by claiming the benefit under exemption notification dated April 30, 1975. The revisional authority on principle held that the concept is not permissible and M/s. Voltas Limited cannot be treated as related person. Once, this conclusion is reached, then the consequence must follow and the duty recovered by the Department on an erroneous principle is bound to be refunded to the petitioner company. The assumption of the Assistant Collector that the order of the revisional authority deals with only one product is wholly incorrect. The Assistant Collector was also in error in denying refund of Rs. 1726. 97 on the ground that gate Pass No. 1141 dated July 28, 1978 was not produced by the Company while seeking refund. The petitioner Company claims that Gate Pass was sent to the office of the Assistant collector along with another refund application dated October 25, 1979 which was pending and hence could not be enclosed with the refund application filed subsequently. The learned counsel appearing on behalf of the Company produced an acknowledgment receipt from the Office of the assistant Collector about the receipt of this Gate Pass. The respondents have not cared to file any return challenging the claim made by the Company and we fail to appreciate how the claim for Rs. 1726. 97, in these circumstances, can be ignored. The finding of the Assistant Collector that refund of Rs. 40,628. 36 covered by 46 Gate Passes cannot be granted because the duty was not paid under protest is incorrect both factually and in law. The learned counsel appearing on behalf of the petitioner pointed out that the duty was paid under protest during the pendency of the revision petition, and after the decision of the revision petition, the duty recovered cannot be retained. Shri Desai, learned counsel appearing on behalf of the Department, submitted that the procedure prescribed under Rule 233-B of Central Excise rules, 1944 was not followed and, therefore, the order of the Assistant Collector is correct. We are unable to find any merit in this submission. The Company had written letter to the Assistant collector intimating that the duty is paid under protest pending the revision petition and that is more than sufficient compliance with the requirement of Rule 233-B. The Rules are procedural and can by no stretch of imagination be treated as mandatory. Apart from this consideration, the assistant Collector overlooked that the refund is sought because the superior authority has set aside the orders passed by the lower authorities and the refund sought is in the nature of restitution. The Company paid the duty during the interregnum i. e. while the revision petition was pending before the Government and once the revisional authority sets aside the decision of the lower forums, then the duty recovered in pursuance of the orders which were reversed cannot be retained, whether the duty was paid under protest or without any protest. In our judgment, the refusal of refund of Rs. 40,628. 36 is wholly incorrect.( 7 ) THE deduction of Rs. 6,114. 81 and Rs. 2176. 70 by the Assistant Collector on the ground that the refund amount is liable to payment of excise duty under Section 4 of the Act is entirely illegal. The Assistant Collector thought that the amount of refund available to the Company is not likely to be passed on to the customer and, therefore, the amount of refund should form part of the assessable value and the Company is liable to pay excise duty on this amount of refund. The Assistant Collector thereupon decided to deduct Rs. 6114. 81 and Rs. 2176. 70 on this count. We are unable to appreciate how the Assistant Collector can resort to the provisions of Section 4 of the Act to charge duty on the amount of refund. We do not find any such provision under section 4 to authorise the Assistant Collector to levy duty on the amount of refund. The assistant Collector also overlooked that the refund is claimed because under erroneous orders, the Department recovered the excess duty from the Company. As soon as those orders are set aside, the Company would be entitled to get the refund and this refund cannot be denied under any provisions of the Act. In our judgment, the Assistant Collector was in error in rejecting the claim of Rs. 2,30,831. 39 and sanctioning only Rs. 1,11,677. 81.
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1
### Explanation:
by the Company to M/s. Voltas Limited. The assumption of the Assistant Collector on this count is entirely unfounded and contrary to the orders produced on record. As mentioned hereinabove, the distributorship agreement between the Company and M/s. Voltas Limited provided for supply of various products manufactured by the Company. The products supplied by the Company were described by the Assistant Collector of Central Excise while confirming the show cause notice as fine chemicals. The order of the Assistant Collector dated October 14, 1976 recites that the inquiry made by the Department revealed that the entire production of fine chemicals are supplied to m/s. Voltas Limited and, therefore, the Voltas Limited became related person within the meaning of Section 4 of the Act. In consequence of the order, the Assistant Collector directed the company to file revised price list in accordance with Part IV and pay duty on the basis of the prices charged by M/s. Voltas Limited to their independent dealers on all past clearances from October 1, 1975. The copy of the price list filed by the Company in accordance with the direction on December 15, 1977 reveals that the Company was supplying large number of products manufactured to M/s. Voltas Limited. It is obvious that all these products were covered by the order of the Assistant Collector and the Appellate Authority and were in issue before the revisional authority. The question as regards the assessable value of the goods supplied by the company to M/s. Voltas Limited was to be determined on resolution of issue as to whether the concept of related person under Section 4 can be imported while payment of duty by claiming the benefit under exemption notification dated April 30, 1975. The revisional authority on principle held that the concept is not permissible and M/s. Voltas Limited cannot be treated as related person. Once, this conclusion is reached, then the consequence must follow and the duty recovered by the Department on an erroneous principle is bound to be refunded to the petitioner company. The assumption of the Assistant Collector that the order of the revisional authority deals with only one product is wholly incorrect. The Assistant Collector was also in error in denying refund of Rs. 1726. 97 on the ground that gate Pass No. 1141 dated July 28, 1978 was not produced by the Company while seeking refund. The petitioner Company claims that Gate Pass was sent to the office of the Assistant collector along with another refund application dated October 25, 1979 which was pending and hence could not be enclosed with the refund application filed subsequently. The learned counsel appearing on behalf of the Company produced an acknowledgment receipt from the Office of the assistant Collector about the receipt of this Gate Pass. The respondents have not cared to file any return challenging the claim made by the Company and we fail to appreciate how the claim for Rs. 1726. 97, in these circumstances, can be ignored. The finding of the Assistant Collector that refund of Rs. 40,628. 36 covered by 46 Gate Passes cannot be granted because the duty was not paid under protest is incorrect both factually and in law. The learned counsel appearing on behalf of the petitioner pointed out that the duty was paid under protest during the pendency of the revision petition, and after the decision of the revision petition, the duty recovered cannot be retained. Shri Desai, learned counsel appearing on behalf of the Department, submitted that the procedure prescribed under Ruleof Central Excise rules, 1944 was not followed and, therefore, the order of the Assistant Collector is correct. We are unable to find any merit in this submission. The Company had written letter to the Assistant collector intimating that the duty is paid under protest pending the revision petition and that is more than sufficient compliance with the requirement of RuleThe Rules are procedural and can by no stretch of imagination be treated as mandatory. Apart from this consideration, the assistant Collector overlooked that the refund is sought because the superior authority has set aside the orders passed by the lower authorities and the refund sought is in the nature of restitution. The Company paid the duty during the interregnum i. e. while the revision petition was pending before the Government and once the revisional authority sets aside the decision of the lower forums, then the duty recovered in pursuance of the orders which were reversed cannot be retained, whether the duty was paid under protest or without any protest. In our judgment, the refusal of refund of Rs. 40,628. 36 is wholly7 ) THE deduction of Rs. 6,114. 81 and Rs. 2176. 70 by the Assistant Collector on the ground that the refund amount is liable to payment of excise duty under Section 4 of the Act is entirely illegal. The Assistant Collector thought that the amount of refund available to the Company is not likely to be passed on to the customer and, therefore, the amount of refund should form part of the assessable value and the Company is liable to pay excise duty on this amount of refund. The Assistant Collector thereupon decided to deduct Rs. 6114. 81 and Rs. 2176. 70 on this count. We are unable to appreciate how the Assistant Collector can resort to the provisions of Section 4 of the Act to charge duty on the amount of refund. We do not find any such provision under section 4 to authorise the Assistant Collector to levy duty on the amount of refund. The assistant Collector also overlooked that the refund is claimed because under erroneous orders, the Department recovered the excess duty from the Company. As soon as those orders are set aside, the Company would be entitled to get the refund and this refund cannot be denied under any provisions of the Act. In our judgment, the Assistant Collector was in error in rejecting the claim of Rs. 2,30,831. 39 and sanctioning only Rs. 1,11,677. 81.
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M/S. Brakewel Automotive Components (India) Pvt. Ltd Vs. P.R. Selvam Alagappan | and the resistance to the execution of the decree is neither on behalf of M/s. Kargaappa Auto Products/M/s. Karpaga Auto Products nor its proprietress, his wife contending that the decree is neither binding on the firm nor on her. For all practical purposes, the said firm is still being represented by the respondent in the subsisting proceedings. The sequence of events disclose that the suit had been instituted in the year 2010 and was decreed on 16.10.2011. The persistent default on the part of the respondent has been adverted to hereinabove. Though a defective appeal had been filed on his behalf in the year 2012, it was withdrawn and was not re-filed by removing the defects. The Execution Petition though lodged in the year 2014 has not seen the fruit of the decree as on date. The Review Petition filed by the respondent has also been dismissed. Significantly, in all the proceedings initiated by the respondent to stall the execution of the decree, the same pleas have been reiterated.19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:"A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."22. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University and others, AIR 2001 SC 2552 , while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view.23. Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected. | 1[ds]18. The materials on record and the arguments based thereon have received our due consideration. To recapitulate, the plaint discloses that the respondent had represented before the appellant to be authorised to act on behalf of both the firms and in that capacity had participated in the transactions that followed. In that perspective, even assuming that the name of one of the firms was wrongly mentioned and that in fact, it is the wife of the respondent, who is the proprietress thereof, with whom there is no conflict of interest, these in our comprehension per se, would not render the decree void or inexecutable. Such errors, even if exist, would not infest the decree with any jurisdictional infirmity or reduce it to a nullity. Noticeably, there is no dispute with regard to the identity of the firms involved and their representation by the respondent in the suit transactions. The allegation of fraud and collusion between the learned counsel for the respondent and the appellant is visibly self-serving, omnibus, speculative and unauthentic and cannot therefore, after so many years, ipso facto render the decree invalid on account thereof. Visibly, the respondent had been the center figure in all the transactions between the parties on behalf of the firms, as stand proved in the suit and the resistance to the execution of the decree is neither on behalf of M/s. Kargaappa Auto Products/M/s. Karpaga Auto Products nor its proprietress, his wife contending that the decree is neither binding on the firm nor on her. For all practical purposes, the said firm is still being represented by the respondent in the subsisting proceedings. The sequence of events disclose that the suit had been instituted in the year 2010 and was decreed on 16.10.2011. The persistent default on the part of the respondent has been adverted to hereinabove. Though a defective appeal had been filed on his behalf in the year 2012, it was withdrawn and was not re-filed by removing the defects. The Execution Petition though lodged in the year 2014 has not seen the fruit of the decree as on date. The Review Petition filed by the respondent has also been dismissed. Significantly, in all the proceedings initiated by the respondent to stall the execution of the decree, the same pleas have been reiterated.19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected. | 1 | 3,433 | 748 | ### Instruction:
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and the resistance to the execution of the decree is neither on behalf of M/s. Kargaappa Auto Products/M/s. Karpaga Auto Products nor its proprietress, his wife contending that the decree is neither binding on the firm nor on her. For all practical purposes, the said firm is still being represented by the respondent in the subsisting proceedings. The sequence of events disclose that the suit had been instituted in the year 2010 and was decreed on 16.10.2011. The persistent default on the part of the respondent has been adverted to hereinabove. Though a defective appeal had been filed on his behalf in the year 2012, it was withdrawn and was not re-filed by removing the defects. The Execution Petition though lodged in the year 2014 has not seen the fruit of the decree as on date. The Review Petition filed by the respondent has also been dismissed. Significantly, in all the proceedings initiated by the respondent to stall the execution of the decree, the same pleas have been reiterated.19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:"A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."22. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University and others, AIR 2001 SC 2552 , while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view.23. Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected.
### Response:
1
### Explanation:
18. The materials on record and the arguments based thereon have received our due consideration. To recapitulate, the plaint discloses that the respondent had represented before the appellant to be authorised to act on behalf of both the firms and in that capacity had participated in the transactions that followed. In that perspective, even assuming that the name of one of the firms was wrongly mentioned and that in fact, it is the wife of the respondent, who is the proprietress thereof, with whom there is no conflict of interest, these in our comprehension per se, would not render the decree void or inexecutable. Such errors, even if exist, would not infest the decree with any jurisdictional infirmity or reduce it to a nullity. Noticeably, there is no dispute with regard to the identity of the firms involved and their representation by the respondent in the suit transactions. The allegation of fraud and collusion between the learned counsel for the respondent and the appellant is visibly self-serving, omnibus, speculative and unauthentic and cannot therefore, after so many years, ipso facto render the decree invalid on account thereof. Visibly, the respondent had been the center figure in all the transactions between the parties on behalf of the firms, as stand proved in the suit and the resistance to the execution of the decree is neither on behalf of M/s. Kargaappa Auto Products/M/s. Karpaga Auto Products nor its proprietress, his wife contending that the decree is neither binding on the firm nor on her. For all practical purposes, the said firm is still being represented by the respondent in the subsisting proceedings. The sequence of events disclose that the suit had been instituted in the year 2010 and was decreed on 16.10.2011. The persistent default on the part of the respondent has been adverted to hereinabove. Though a defective appeal had been filed on his behalf in the year 2012, it was withdrawn and was not re-filed by removing the defects. The Execution Petition though lodged in the year 2014 has not seen the fruit of the decree as on date. The Review Petition filed by the respondent has also been dismissed. Significantly, in all the proceedings initiated by the respondent to stall the execution of the decree, the same pleas have been reiterated.19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected.
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Girija Prasad Paul Vs. Corporation of Calcutta & Others | them being that the estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all encumbrances, and every non-agricultural tenant holding land under an intermediary shall hold the same directly under the State. It is not disputed that, if the notification applied to this estate, the rights of the Corporation and of the Banerjees, whatever they were, would cease and would vest in the State. It is, therefore, claimed by Mr. Chatterjee on behalf of the State. Unfortunately, he has not made out any such case in the plaint, nor has he asked for a declaration that he is a tenant of the State, nor has he made the State Government a party to the suit. On these grounds alone, the plaintiffs contention that he was a tenant protected by this Act will have to be rejected. Assuming, however, that he can be permitted to claim to be a tenant of the State, he must, in the first instance, show that, even for the purpose of this Act, he was a non-agricultural tenant whose rights have been specifically protected under this Act. As already pointed out, since the tenancy of the Banerjees had been terminated in 1946, the plaintiff, who was a sub-lessee of the Banerjee, could not claim to be either a tenant or a sub-lessee of the Banerjees, could not to be either a tenant or a sub-tenant in the year 1955. Secondly, Section 6(1)(h) of this Act provides :"Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting .................. where the intermediary is a local authority, - land held by such authority, notwithstanding such land or any part thereof may have been let out by such authority : Provided that where any land which has been let out by any local authority is retained by such authority under this clause, no person holding such land shall have any right of occupancy therein, and every such person shall be bound to deliver possession of the land to the local authority when required by it for its purposes." This provision would show that the Corporation was entitled to retain the estate, and no person, not even the Banerjees, could have any right of occupancy therein and would be bound to deliver possession of the land when required by the local authority, viz., the Corporation. The Corporation has been seeking to take possession of this land from the plaintiff right from 1951, i.e., since before the West Bengal Estates Acquisition Act, 1953 came into force and, therefore, the plaintiff can have no right to retain possession of the land even if we assume that the plaintiff was a person holding such land within the contemplation of the proviso. As a matter of fact, after the tenancy had been terminated, he had no title to hold the land and his mere resistance to possession from 1951 would not make him a holder of the land for the purposes of the proviso. 13. Mr. Chatterjee, however, brought to our notice that Section 6(1)(h), as it originally stood prior to its amendment in 1960, applied only to land held "in khas for public purposes" by the local authority and not to land not held in khas by the local authority. The original words "in khas for public purposes" were omitted from the clause as we now find it by the West Bengal Estates Acquisition (Amendment) Act, 1960 with retrospective effect, that is to say, with effect from the date of the original enactment. We must, therefore, hold that the words "in khas for public purposes" in clause (h) were not there at all at any time. No argument, therefore, can be based on the ground that the present clause (h) of sub-section (1) of Section 6 was different from the clause as it was initially enacted. 14. In the result, it is clear that both the statutes, on which the plaintiff based his right to tenancy, do not help him. It would, therefore, necessarily follow that he was liable to be evicted in execution of the decree in Title Suit No. 78 of 1947. He first resisted the decree in the name of defendant No. 6 and, after that attempt failed, he started this new litigation in 1958 keeping the Corporation out of possession for all this period. Since the plaintiffs claim on merits fails, his suit was rightly dismissed. 15. It appears that the High Court dismissed the suit also on the ground that it was barred by limitation under Article 11-A of the First Schedule to the Limitation Act, 1908. Apart from Article 11-A, one should have thought that, on the very face of it, the suit for declaration filed on November 14, 1958 was barred under Article 120 of that Act. The facts, already referred to, show that he was served with a show-cause notice through Court on April 26, 1951 why the decree should not be executed against him and, as a matter of fact, he had entered appearance on behalf of M/s. Reliance Development and Engineering Ltd., on May 19, 1951 and falsely alleged that all his interest in the sub-lease had been transferred to the Company. He had known quite well then that, whatever his rights were, he was losing them. In order to save his possession in the execution proceedings, he put forward false objections on behalf of a third party of which he was himself the Managing Agent and Director. Therefore, the cause of action for the suit for declaration would arise in May or June, 1951 and his present suit filed in 1958 would be prima facie barred. However, it is not necessary to pursue the defence of limitation in this appeal, because it is liable to be dismissed on merits. | 0[ds]This provision would show that the Corporation was entitled to retain the estate, and no person, not even the Banerjees, could have any right of occupancy therein and would be bound to deliver possession of the land when required by the local authority, viz., the Corporation. The Corporation has been seeking to take possession of this land from the plaintiff right from 1951, i.e., since before the West Bengal Estates Acquisition Act, 1953 came into force and, therefore, the plaintiff can have no right to retain possession of the land even if we assume that the plaintiff was a person holding such land within the contemplation of the proviso. As a matter of fact, after the tenancy had been terminated, he had no title to hold the land and his mere resistance to possession from 1951 would not make him a holder of the land for the purposes of the provisoWe must, therefore, hold that the words "in khas for public purposes" in clause (h) were not there at all at any time. No argument, therefore, can be based on the ground that the present clause (h) ofn (1) of Section 6 was different from the clause as it was initially enacted14. In the result, it is clear that both the statutes, on which the plaintiff based his right to tenancy, do not help him. It would, therefore, necessarily follow that he was liable to be evicted in execution of the decree in Title Suit No. 78 of 1947. He first resisted the decree in the name of defendant No. 6 and, after that attempt failed, he started this new litigation in 1958 keeping the Corporation out of possession for all this period. Since the plaintiffs claim on merits fails, his suit was rightly dismissed15. It appears that the High Court dismissed the suit also on the ground that it was barred by limitation under ArticleA of the First Schedule to the Limitation Act, 1908. Apart from Article, one should have thought that, on the very face of it, the suit for declaration filed on November 14, 1958 was barred under Article 120 of that Act. The facts, already referred to, show that he was served with ae notice through Court on April 26, 1951 why the decree should not be executed against him and, as a matter of fact, he had entered appearance on behalf of M/s. Reliance Development and Engineering Ltd., on May 19, 1951 and falsely alleged that all his interest in thee had been transferred to the Company. He had known quite well then that, whatever his rights were, he was losing them. In order to save his possession in the execution proceedings, he put forward false objections on behalf of a third party of which he was himself the Managing Agent and Director. Therefore, the cause of action for the suit for declaration would arise in May or June, 1951 and his present suit filed in 1958 would be prima facie barred. However, it is not necessary to pursue the defence of limitation in this appeal, because it is liable to be dismissed on merits. | 0 | 3,698 | 593 | ### 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:
them being that the estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all encumbrances, and every non-agricultural tenant holding land under an intermediary shall hold the same directly under the State. It is not disputed that, if the notification applied to this estate, the rights of the Corporation and of the Banerjees, whatever they were, would cease and would vest in the State. It is, therefore, claimed by Mr. Chatterjee on behalf of the State. Unfortunately, he has not made out any such case in the plaint, nor has he asked for a declaration that he is a tenant of the State, nor has he made the State Government a party to the suit. On these grounds alone, the plaintiffs contention that he was a tenant protected by this Act will have to be rejected. Assuming, however, that he can be permitted to claim to be a tenant of the State, he must, in the first instance, show that, even for the purpose of this Act, he was a non-agricultural tenant whose rights have been specifically protected under this Act. As already pointed out, since the tenancy of the Banerjees had been terminated in 1946, the plaintiff, who was a sub-lessee of the Banerjee, could not claim to be either a tenant or a sub-lessee of the Banerjees, could not to be either a tenant or a sub-tenant in the year 1955. Secondly, Section 6(1)(h) of this Act provides :"Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting .................. where the intermediary is a local authority, - land held by such authority, notwithstanding such land or any part thereof may have been let out by such authority : Provided that where any land which has been let out by any local authority is retained by such authority under this clause, no person holding such land shall have any right of occupancy therein, and every such person shall be bound to deliver possession of the land to the local authority when required by it for its purposes." This provision would show that the Corporation was entitled to retain the estate, and no person, not even the Banerjees, could have any right of occupancy therein and would be bound to deliver possession of the land when required by the local authority, viz., the Corporation. The Corporation has been seeking to take possession of this land from the plaintiff right from 1951, i.e., since before the West Bengal Estates Acquisition Act, 1953 came into force and, therefore, the plaintiff can have no right to retain possession of the land even if we assume that the plaintiff was a person holding such land within the contemplation of the proviso. As a matter of fact, after the tenancy had been terminated, he had no title to hold the land and his mere resistance to possession from 1951 would not make him a holder of the land for the purposes of the proviso. 13. Mr. Chatterjee, however, brought to our notice that Section 6(1)(h), as it originally stood prior to its amendment in 1960, applied only to land held "in khas for public purposes" by the local authority and not to land not held in khas by the local authority. The original words "in khas for public purposes" were omitted from the clause as we now find it by the West Bengal Estates Acquisition (Amendment) Act, 1960 with retrospective effect, that is to say, with effect from the date of the original enactment. We must, therefore, hold that the words "in khas for public purposes" in clause (h) were not there at all at any time. No argument, therefore, can be based on the ground that the present clause (h) of sub-section (1) of Section 6 was different from the clause as it was initially enacted. 14. In the result, it is clear that both the statutes, on which the plaintiff based his right to tenancy, do not help him. It would, therefore, necessarily follow that he was liable to be evicted in execution of the decree in Title Suit No. 78 of 1947. He first resisted the decree in the name of defendant No. 6 and, after that attempt failed, he started this new litigation in 1958 keeping the Corporation out of possession for all this period. Since the plaintiffs claim on merits fails, his suit was rightly dismissed. 15. It appears that the High Court dismissed the suit also on the ground that it was barred by limitation under Article 11-A of the First Schedule to the Limitation Act, 1908. Apart from Article 11-A, one should have thought that, on the very face of it, the suit for declaration filed on November 14, 1958 was barred under Article 120 of that Act. The facts, already referred to, show that he was served with a show-cause notice through Court on April 26, 1951 why the decree should not be executed against him and, as a matter of fact, he had entered appearance on behalf of M/s. Reliance Development and Engineering Ltd., on May 19, 1951 and falsely alleged that all his interest in the sub-lease had been transferred to the Company. He had known quite well then that, whatever his rights were, he was losing them. In order to save his possession in the execution proceedings, he put forward false objections on behalf of a third party of which he was himself the Managing Agent and Director. Therefore, the cause of action for the suit for declaration would arise in May or June, 1951 and his present suit filed in 1958 would be prima facie barred. However, it is not necessary to pursue the defence of limitation in this appeal, because it is liable to be dismissed on merits.
### Response:
0
### Explanation:
This provision would show that the Corporation was entitled to retain the estate, and no person, not even the Banerjees, could have any right of occupancy therein and would be bound to deliver possession of the land when required by the local authority, viz., the Corporation. The Corporation has been seeking to take possession of this land from the plaintiff right from 1951, i.e., since before the West Bengal Estates Acquisition Act, 1953 came into force and, therefore, the plaintiff can have no right to retain possession of the land even if we assume that the plaintiff was a person holding such land within the contemplation of the proviso. As a matter of fact, after the tenancy had been terminated, he had no title to hold the land and his mere resistance to possession from 1951 would not make him a holder of the land for the purposes of the provisoWe must, therefore, hold that the words "in khas for public purposes" in clause (h) were not there at all at any time. No argument, therefore, can be based on the ground that the present clause (h) ofn (1) of Section 6 was different from the clause as it was initially enacted14. In the result, it is clear that both the statutes, on which the plaintiff based his right to tenancy, do not help him. It would, therefore, necessarily follow that he was liable to be evicted in execution of the decree in Title Suit No. 78 of 1947. He first resisted the decree in the name of defendant No. 6 and, after that attempt failed, he started this new litigation in 1958 keeping the Corporation out of possession for all this period. Since the plaintiffs claim on merits fails, his suit was rightly dismissed15. It appears that the High Court dismissed the suit also on the ground that it was barred by limitation under ArticleA of the First Schedule to the Limitation Act, 1908. Apart from Article, one should have thought that, on the very face of it, the suit for declaration filed on November 14, 1958 was barred under Article 120 of that Act. The facts, already referred to, show that he was served with ae notice through Court on April 26, 1951 why the decree should not be executed against him and, as a matter of fact, he had entered appearance on behalf of M/s. Reliance Development and Engineering Ltd., on May 19, 1951 and falsely alleged that all his interest in thee had been transferred to the Company. He had known quite well then that, whatever his rights were, he was losing them. In order to save his possession in the execution proceedings, he put forward false objections on behalf of a third party of which he was himself the Managing Agent and Director. Therefore, the cause of action for the suit for declaration would arise in May or June, 1951 and his present suit filed in 1958 would be prima facie barred. However, it is not necessary to pursue the defence of limitation in this appeal, because it is liable to be dismissed on merits.
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RACHHPAL SINGH Vs. SOHAN SINGH | 1. The judgment of the High Court of Punjab and Haryana in Civil Regular Second Appeal No. 465 of 1976 dated 25th April, 2007 is under challenge in this appeal.2. The father of the appellant mortgaged the property in the form of usufructuary mortgage to one Mr. Beliram. The property was situated in Pakistan. After partition, the parties shifted to India. Since the appellant and his family were displaced from Pakistan, entire family was rehabilitated by providing alternative agriculture land in Village Bhatoya in favour of the father of the appellant. However, Beliram, the mortgagee also shifted to India and stayed in the same village and continued to hold the property which was provided to appellant?s father in India for the purpose of rehabilitation as the mortgagee. Beliram transferred his mortgaged rights, in respect of the mortgaged property situated in India in favour of one Mr. Sohan Singh-respondent. After demise of appellants father, the appellant filed the suit for redemption of mortgage. The Courts below including the High Court have dismissed the suit on the ground that no adequate material is produced by the appellant to show that he is the owner of the property and that he has mortgaged the property in favour of either Beliram or Sohan Singh.3. It is relevant to note here itself that the appellants father had owned another property in Pakistan which also was mortgaged in favour of one Inder Singh and one Jagat singh. Almost similar facts as mentioned supra regarding shifting to India after partition, rehabilitation, allotment of land & mortgage etc. are applicable to the case of Inder singh & Jagat Singh also. The appellant filed suit for redemption of mortgage in respect of the mortgaged land situated in India against Inder singh & Jagat singh and the said suit came to be decreed throughout. During the pendency of the said suit, the appellant herein went to Pakistan and obtained all the relevant records pertaining to the property in the said case and the same were produced. Ultimately based on such documents, the Courts including this Court held that the appellants father and thereafter the appellant was owner & mortgagor of the said property and thus are entitled to redemption of mortgage. As mentioned supra, suit for redemption filed against Inder Singh & Jagat Singh was decreed.4. Coming back to the case on hand, during the pendency of the matter before the High Court it seems, after the disposal of the matter by the first appellate court, as mentioned supra, the appellant herein went to Pakistan in 1985 and secured all the relevant records in respect of the property which was mortgaged in favour of Beliram and also the subsequent records pertaining to allotment of property by the Government of India after rehabilitation. All such records were produced by the appellant before this Court during the pendency of the special leave petition i.e. SLP(C) No. 7531 of 1985. Ultimately this Court remitted the matter to the High Court in the year 1993 for fresh disposal in accordance with law. During the pendency of the matter on hand before the High Court, the appellant filed an application for production of additional evidence i.e. basically for producing the relevant records obtained by him from Pakistan pertaining to the property which were produced by the appellant during the pendency of special leave petition. The High Court, strangely, took a hyper-technical view and rejected such application and thereafter proceeded to confirm the Judgment of dismissal of the suit.5. The learned counsel appearing for the appellant has taken us to the material on record and the documents which are sought to be produced before the High Court. We find that such documents were necessary before the High Court for just decision of the case. Almost very documents were produced in the case of Inder Singh & Jagat Singh which were accepted & relied upon.6. In our considered opinion, rejection of the appellant?s application by the High Court for producing the additional evidence has led to mis-carriage of justice. The documents that the appellant has subsequently with great difficulty retrieved from the Government of Pakistan prima facie show that the appellants family was owning the land which was originally mortgaged & that the appellant?s family was subsequently allotted another agricultural land for the purpose of rehabilitation in India, and the same is held by the respondent. Since the records sought to be produced by the appellant before the High Court are very much necessary to decide the matter in an appropriate and fair manner, the judgment of the High Court is liable to be set aside. So also the application for amendment of plaint needs to be allowed inasmuch as amendment is necessary, in view of the additional documents which are sought to be produced. | 1[ds]We find that such documents were necessary before the High Court for just decision of the case. Almost very documents were produced in the case of Inder Singh & Jagat Singh which were accepted & relied upon6. In our considered opinion, rejection of the appellant?s application by the High Court for producing the additional evidence has led to mis-carriage of justice. The documents that the appellant has subsequently with great difficulty retrieved from the Government of Pakistan prima facie show that the appellants family was owning the land which was originally mortgaged & that the appellant?s family was subsequently allotted another agricultural land for the purpose of rehabilitation in India, and the same is held by the respondent. Since the records sought to be produced by the appellant before the High Court are very much necessary to decide the matter in an appropriate and fair manner, the judgment of the High Court is liable to be set aside. So also the application for amendment of plaint needs to be allowed inasmuch as amendment is necessary, in view of the additional documents which are sought to be produced. | 1 | 863 | 205 | ### 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:
1. The judgment of the High Court of Punjab and Haryana in Civil Regular Second Appeal No. 465 of 1976 dated 25th April, 2007 is under challenge in this appeal.2. The father of the appellant mortgaged the property in the form of usufructuary mortgage to one Mr. Beliram. The property was situated in Pakistan. After partition, the parties shifted to India. Since the appellant and his family were displaced from Pakistan, entire family was rehabilitated by providing alternative agriculture land in Village Bhatoya in favour of the father of the appellant. However, Beliram, the mortgagee also shifted to India and stayed in the same village and continued to hold the property which was provided to appellant?s father in India for the purpose of rehabilitation as the mortgagee. Beliram transferred his mortgaged rights, in respect of the mortgaged property situated in India in favour of one Mr. Sohan Singh-respondent. After demise of appellants father, the appellant filed the suit for redemption of mortgage. The Courts below including the High Court have dismissed the suit on the ground that no adequate material is produced by the appellant to show that he is the owner of the property and that he has mortgaged the property in favour of either Beliram or Sohan Singh.3. It is relevant to note here itself that the appellants father had owned another property in Pakistan which also was mortgaged in favour of one Inder Singh and one Jagat singh. Almost similar facts as mentioned supra regarding shifting to India after partition, rehabilitation, allotment of land & mortgage etc. are applicable to the case of Inder singh & Jagat Singh also. The appellant filed suit for redemption of mortgage in respect of the mortgaged land situated in India against Inder singh & Jagat singh and the said suit came to be decreed throughout. During the pendency of the said suit, the appellant herein went to Pakistan and obtained all the relevant records pertaining to the property in the said case and the same were produced. Ultimately based on such documents, the Courts including this Court held that the appellants father and thereafter the appellant was owner & mortgagor of the said property and thus are entitled to redemption of mortgage. As mentioned supra, suit for redemption filed against Inder Singh & Jagat Singh was decreed.4. Coming back to the case on hand, during the pendency of the matter before the High Court it seems, after the disposal of the matter by the first appellate court, as mentioned supra, the appellant herein went to Pakistan in 1985 and secured all the relevant records in respect of the property which was mortgaged in favour of Beliram and also the subsequent records pertaining to allotment of property by the Government of India after rehabilitation. All such records were produced by the appellant before this Court during the pendency of the special leave petition i.e. SLP(C) No. 7531 of 1985. Ultimately this Court remitted the matter to the High Court in the year 1993 for fresh disposal in accordance with law. During the pendency of the matter on hand before the High Court, the appellant filed an application for production of additional evidence i.e. basically for producing the relevant records obtained by him from Pakistan pertaining to the property which were produced by the appellant during the pendency of special leave petition. The High Court, strangely, took a hyper-technical view and rejected such application and thereafter proceeded to confirm the Judgment of dismissal of the suit.5. The learned counsel appearing for the appellant has taken us to the material on record and the documents which are sought to be produced before the High Court. We find that such documents were necessary before the High Court for just decision of the case. Almost very documents were produced in the case of Inder Singh & Jagat Singh which were accepted & relied upon.6. In our considered opinion, rejection of the appellant?s application by the High Court for producing the additional evidence has led to mis-carriage of justice. The documents that the appellant has subsequently with great difficulty retrieved from the Government of Pakistan prima facie show that the appellants family was owning the land which was originally mortgaged & that the appellant?s family was subsequently allotted another agricultural land for the purpose of rehabilitation in India, and the same is held by the respondent. Since the records sought to be produced by the appellant before the High Court are very much necessary to decide the matter in an appropriate and fair manner, the judgment of the High Court is liable to be set aside. So also the application for amendment of plaint needs to be allowed inasmuch as amendment is necessary, in view of the additional documents which are sought to be produced.
### Response:
1
### Explanation:
We find that such documents were necessary before the High Court for just decision of the case. Almost very documents were produced in the case of Inder Singh & Jagat Singh which were accepted & relied upon6. In our considered opinion, rejection of the appellant?s application by the High Court for producing the additional evidence has led to mis-carriage of justice. The documents that the appellant has subsequently with great difficulty retrieved from the Government of Pakistan prima facie show that the appellants family was owning the land which was originally mortgaged & that the appellant?s family was subsequently allotted another agricultural land for the purpose of rehabilitation in India, and the same is held by the respondent. Since the records sought to be produced by the appellant before the High Court are very much necessary to decide the matter in an appropriate and fair manner, the judgment of the High Court is liable to be set aside. So also the application for amendment of plaint needs to be allowed inasmuch as amendment is necessary, in view of the additional documents which are sought to be produced.
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MADHYA PRADESH POWER MANAGEMENT CO. LTD. DGM (COMMERCIAL) SANJEEV KHARE Vs. M/S DHAR WIND POWER PROJECTS PVT. LTD. AUTHORISED SIGNATORY ANIL MISRA | to all new wind electric generation projects which were commissioned at 00.00 hrs on 1 April 2016 or thereafter. The SLDC was required by Para 4.2 of the Tariff Order to submit a list of WEGs commissioned during the month of March 2016 from 00.00 hrs of 1 March 2016 to 24.00 hrs of 31 March 2016. This data was sought in order to provide an objective basis of determining whether a project had been commissioned before the new Tariff Order became applicable to projects which were commissioned with effect from 1 April 2016.23. In line with the above provisions, the guidelines that were issued by the first appellant on 18 March 2016 provided a format for the issuance of commissioning certificates. The format required readings of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters. The format required the submission of this data in order to establish the date on which a particular project had been commissioned. The actual date of commissioning would determine the applicable tariff; the tariff of Rs 5.92 per unit would apply to projects which were commissioned on or before 31 March 2016, while the new rate of Rs 4.78 per unit would apply to projects which were commissioned on or after 1 April 2016. Requiring the SLDC to submit data of the actual injection of power into the grid was with the objective of establishing the actual commissioning of the project.24. In the present case, the principal submission of the appellants is that the data which was furnished by the SLDC indicates that the actual injection of power into the grid by the first respondent took place on 1 April 2016. It is on that basis that the first appellant has submitted that the commissioning certificate was not in accordance with the prescribed format and had to be revoked. Before this Court, the data which has been furnished by the SLDC is not in dispute. Indeed, that is the basis on which Mr Vivek K Tankha, learned senior counsel urged his alternative submission that in any event, even going by the SLDC data, it is evident that the power was injected into the grid on and from 1 April 2016.25. On reviewing the docmentary material on the record, we are not prepared to accept the view which has weighed with the High Court, namely, that the commissioning of the project was completed by 31 March 2016. The certificate of commissioning which has been issued by the Superintending Engineer is belied by the objective factual data available from the SLDC which is a statutory body constituted under Section 31 of the Act. The objective data on the record indicates that the injection of power into the grid took place on 1 April 2016. Hence, we are of the view that this should be the basis on which the claim for the entering into a PPA should be founded.26. Since the factual data has been placed before this Court, we are of the view that the project of the first respondent was commissioned on 1 April 2016 since the SLDC data indicates the injection of power into the grid with effect from that date. On the basis of the commissioning of the project on 1 April 2016, we find merit in the alternative submission which has been urged on behalf of the first respondent in the appeals that the Tariff Order that must apply is the Tariff Order dated 17 March 2016. The first respondent was before the Madhya Pradesh High Court in writ proceedings espousing its claim to the benefit of a higher rate of Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis that the commissioning of its project had taken place on 31 March 2016. The first respondent was bona fide pursuing its claim in that regard which found acceptance in the impugned judgment and order of the High Court. Though we have differed with the view which has been taken by the High Court, we are of the view that it would be unfair to deny to the first respondent the benefit of the rate which came to be prescribed by the Tariff Order of 17 March 2016. The rate which was prescribed by that Tariff Order of Rs 4.78 per unit was to apply during the control period beginning from 1 April 2016 and ending on 31 March 2019 and that rate would continue to govern the life cycle of 25 years, as prescribed by Para 5 of the Tariff Order. The first respondent cannot be denied a parity of treatment, as has been allowed to other projects of a similar nature which would be governed by the control period stipulated in Para 5 of the Tariff Order dated 17 March 2016.27. The competitive bidding guidelines upon which reliance has been placed by Mr Nitin Gaur, learned counsel appearing on behalf of the appellants, were formulated by the Union Ministry of Power subsequently on 8 December 2017. Moreover, Para 3.1 of those guidelines is not applicable to the project of the first respondent. Para 3.1 provides thus:?3. APPLICABILITY OF GUIDELINES3.1 These Guidelines are being issued under the provisions of Section 63 of the Electricity Act, 2003 for long-term procurement of electricity through competitive bidding process, by the ‘Procurer(s)?, from grid-connected Wind Power Projects (‘WPP?) having, (a) individual size of 5 MW and above at one site with minimum bid capacity of 25 MW for intra-state projects; and (b) individual size of 50 MW and above at one site with minimum bid capacity of 50 MW for inter-state projects.?(emphasis supplied)28. The above guidelines apply to grid-connected Wind Power Projects with an individual size of 5 MW and above at one site with a minimum bid capacity of 25 MW for intra-State projects. Since the first respondent is admittedly an intra-State project and does not fulfil the above requirement, the guidelines (which in any event came into force subsequently) will have no application. | 1[ds]24. In the present case, the principal submission of the appellants is that the data which was furnished by the SLDC indicates that the actual injection of power into the grid by the first respondent took place on 1 April 2016. It is on that basis that the first appellant has submitted that the commissioning certificate was not in accordance with the prescribed format and had to be revoked. Before this Court, the data which has been furnished by the SLDC is not in dispute. Indeed, that is the basis on which Mr Vivek K Tankha, learned senior counsel urged his alternative submission that in any event, even going by the SLDC data, it is evident that the power was injected into the grid on and from 1 April 2016.25. On reviewing the docmentary material on the record, we are not prepared to accept the view which has weighed with the High Court, namely, that the commissioning of the project was completed by 31 March 2016. The certificate of commissioning which has been issued by the Superintending Engineer is belied by the objective factual data available from the SLDC which is a statutory body constituted under Section 31 of the Act. The objective data on the record indicates that the injection of power into the grid took place on 1 April 2016. Hence, we are of the view that this should be the basis on which the claim for the entering into a PPA should be founded.26. Since the factual data has been placed before this Court, we are of the view that the project of the first respondent was commissioned on 1 April 2016 since the SLDC data indicates the injection of power into the grid with effect from that date. On the basis of the commissioning of the project on 1 April 2016, we find merit in the alternative submission which has been urged on behalf of the first respondent in the appeals that the Tariff Order that must apply is the Tariff Order dated 17 March 2016. The first respondent was before the Madhya Pradesh High Court in writ proceedings espousing its claim to the benefit of a higher rate of Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis that the commissioning of its project had taken place on 31 March 2016. The first respondent was bona fide pursuing its claim in that regard which found acceptance in the impugned judgment and order of the High Court. Though we have differed with the view which has been taken by the High Court, we are of the view that it would be unfair to deny to the first respondent the benefit of the rate which came to be prescribed by the Tariff Order of 17 March 2016. The rate which was prescribed by that Tariff Order of Rs 4.78 per unit was to apply during the control period beginning from 1 April 2016 and ending on 31 March 2019 and that rate would continue to govern the life cycle of 25 years, as prescribed by Para 5 of the Tariff Order. The first respondent cannot be denied a parity of treatment, as has been allowed to other projects of a similar nature which would be governed by the control period stipulated in Para 5 of the Tariff Order dated 17 March 2016.27. The competitive bidding guidelines upon which reliance has been placed by Mr Nitin Gaur, learned counsel appearing on behalf of the appellants, were formulated by the Union Ministry of Power subsequently on 8 December 2017. Moreover, Para 3.1 of those guidelines is not applicable to the project of the first respondent.APPLICABILITY OF GUIDELINES3.1 These Guidelines are being issued under the provisions of Section 63 of the Electricity Act, 2003 for long-term procurement of electricity through competitive bidding process, by the ‘Procurer(s)?, from grid-connected Wind Power Projects (‘WPP?) having, (a) individual size of 5 MW and above at one site with minimum bid capacity of 25 MW for intra-state projects; and (b) individual size of 50 MW and above at one site with minimum bid capacity of 50 MW for inter-state. The above guidelines apply to grid-connected Wind Power Projects with an individual size of 5 MW and above at one site with a minimum bid capacity of 25 MW for intra-State projects. Since the first respondent is admittedly an intra-State project and does not fulfil the above requirement, the guidelines (which in any event came into force subsequently) will have no application.In line with the above provisions, the guidelines that were issued by the first appellant on 18 March 2016 provided a format for the issuance of commissioning certificates. The format required readings of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters. The format required the submission of this data in order to establish the date on which a particular project had been commissioned. The actual date of commissioning would determine the applicable tariff; the tariff of Rs 5.92 per unit would apply to projects which were commissioned on or before 31 March 2016, while the new rate of Rs 4.78 per unit would apply to projects which were commissioned on or after 1 April 2016. Requiring the SLDC to submit data of the actual injection of power into the grid was with the objective of establishing the actual commissioning of the project. | 1 | 4,320 | 979 | ### 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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to all new wind electric generation projects which were commissioned at 00.00 hrs on 1 April 2016 or thereafter. The SLDC was required by Para 4.2 of the Tariff Order to submit a list of WEGs commissioned during the month of March 2016 from 00.00 hrs of 1 March 2016 to 24.00 hrs of 31 March 2016. This data was sought in order to provide an objective basis of determining whether a project had been commissioned before the new Tariff Order became applicable to projects which were commissioned with effect from 1 April 2016.23. In line with the above provisions, the guidelines that were issued by the first appellant on 18 March 2016 provided a format for the issuance of commissioning certificates. The format required readings of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters. The format required the submission of this data in order to establish the date on which a particular project had been commissioned. The actual date of commissioning would determine the applicable tariff; the tariff of Rs 5.92 per unit would apply to projects which were commissioned on or before 31 March 2016, while the new rate of Rs 4.78 per unit would apply to projects which were commissioned on or after 1 April 2016. Requiring the SLDC to submit data of the actual injection of power into the grid was with the objective of establishing the actual commissioning of the project.24. In the present case, the principal submission of the appellants is that the data which was furnished by the SLDC indicates that the actual injection of power into the grid by the first respondent took place on 1 April 2016. It is on that basis that the first appellant has submitted that the commissioning certificate was not in accordance with the prescribed format and had to be revoked. Before this Court, the data which has been furnished by the SLDC is not in dispute. Indeed, that is the basis on which Mr Vivek K Tankha, learned senior counsel urged his alternative submission that in any event, even going by the SLDC data, it is evident that the power was injected into the grid on and from 1 April 2016.25. On reviewing the docmentary material on the record, we are not prepared to accept the view which has weighed with the High Court, namely, that the commissioning of the project was completed by 31 March 2016. The certificate of commissioning which has been issued by the Superintending Engineer is belied by the objective factual data available from the SLDC which is a statutory body constituted under Section 31 of the Act. The objective data on the record indicates that the injection of power into the grid took place on 1 April 2016. Hence, we are of the view that this should be the basis on which the claim for the entering into a PPA should be founded.26. Since the factual data has been placed before this Court, we are of the view that the project of the first respondent was commissioned on 1 April 2016 since the SLDC data indicates the injection of power into the grid with effect from that date. On the basis of the commissioning of the project on 1 April 2016, we find merit in the alternative submission which has been urged on behalf of the first respondent in the appeals that the Tariff Order that must apply is the Tariff Order dated 17 March 2016. The first respondent was before the Madhya Pradesh High Court in writ proceedings espousing its claim to the benefit of a higher rate of Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis that the commissioning of its project had taken place on 31 March 2016. The first respondent was bona fide pursuing its claim in that regard which found acceptance in the impugned judgment and order of the High Court. Though we have differed with the view which has been taken by the High Court, we are of the view that it would be unfair to deny to the first respondent the benefit of the rate which came to be prescribed by the Tariff Order of 17 March 2016. The rate which was prescribed by that Tariff Order of Rs 4.78 per unit was to apply during the control period beginning from 1 April 2016 and ending on 31 March 2019 and that rate would continue to govern the life cycle of 25 years, as prescribed by Para 5 of the Tariff Order. The first respondent cannot be denied a parity of treatment, as has been allowed to other projects of a similar nature which would be governed by the control period stipulated in Para 5 of the Tariff Order dated 17 March 2016.27. The competitive bidding guidelines upon which reliance has been placed by Mr Nitin Gaur, learned counsel appearing on behalf of the appellants, were formulated by the Union Ministry of Power subsequently on 8 December 2017. Moreover, Para 3.1 of those guidelines is not applicable to the project of the first respondent. Para 3.1 provides thus:?3. APPLICABILITY OF GUIDELINES3.1 These Guidelines are being issued under the provisions of Section 63 of the Electricity Act, 2003 for long-term procurement of electricity through competitive bidding process, by the ‘Procurer(s)?, from grid-connected Wind Power Projects (‘WPP?) having, (a) individual size of 5 MW and above at one site with minimum bid capacity of 25 MW for intra-state projects; and (b) individual size of 50 MW and above at one site with minimum bid capacity of 50 MW for inter-state projects.?(emphasis supplied)28. The above guidelines apply to grid-connected Wind Power Projects with an individual size of 5 MW and above at one site with a minimum bid capacity of 25 MW for intra-State projects. Since the first respondent is admittedly an intra-State project and does not fulfil the above requirement, the guidelines (which in any event came into force subsequently) will have no application.
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24. In the present case, the principal submission of the appellants is that the data which was furnished by the SLDC indicates that the actual injection of power into the grid by the first respondent took place on 1 April 2016. It is on that basis that the first appellant has submitted that the commissioning certificate was not in accordance with the prescribed format and had to be revoked. Before this Court, the data which has been furnished by the SLDC is not in dispute. Indeed, that is the basis on which Mr Vivek K Tankha, learned senior counsel urged his alternative submission that in any event, even going by the SLDC data, it is evident that the power was injected into the grid on and from 1 April 2016.25. On reviewing the docmentary material on the record, we are not prepared to accept the view which has weighed with the High Court, namely, that the commissioning of the project was completed by 31 March 2016. The certificate of commissioning which has been issued by the Superintending Engineer is belied by the objective factual data available from the SLDC which is a statutory body constituted under Section 31 of the Act. The objective data on the record indicates that the injection of power into the grid took place on 1 April 2016. Hence, we are of the view that this should be the basis on which the claim for the entering into a PPA should be founded.26. Since the factual data has been placed before this Court, we are of the view that the project of the first respondent was commissioned on 1 April 2016 since the SLDC data indicates the injection of power into the grid with effect from that date. On the basis of the commissioning of the project on 1 April 2016, we find merit in the alternative submission which has been urged on behalf of the first respondent in the appeals that the Tariff Order that must apply is the Tariff Order dated 17 March 2016. The first respondent was before the Madhya Pradesh High Court in writ proceedings espousing its claim to the benefit of a higher rate of Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis that the commissioning of its project had taken place on 31 March 2016. The first respondent was bona fide pursuing its claim in that regard which found acceptance in the impugned judgment and order of the High Court. Though we have differed with the view which has been taken by the High Court, we are of the view that it would be unfair to deny to the first respondent the benefit of the rate which came to be prescribed by the Tariff Order of 17 March 2016. The rate which was prescribed by that Tariff Order of Rs 4.78 per unit was to apply during the control period beginning from 1 April 2016 and ending on 31 March 2019 and that rate would continue to govern the life cycle of 25 years, as prescribed by Para 5 of the Tariff Order. The first respondent cannot be denied a parity of treatment, as has been allowed to other projects of a similar nature which would be governed by the control period stipulated in Para 5 of the Tariff Order dated 17 March 2016.27. The competitive bidding guidelines upon which reliance has been placed by Mr Nitin Gaur, learned counsel appearing on behalf of the appellants, were formulated by the Union Ministry of Power subsequently on 8 December 2017. Moreover, Para 3.1 of those guidelines is not applicable to the project of the first respondent.APPLICABILITY OF GUIDELINES3.1 These Guidelines are being issued under the provisions of Section 63 of the Electricity Act, 2003 for long-term procurement of electricity through competitive bidding process, by the ‘Procurer(s)?, from grid-connected Wind Power Projects (‘WPP?) having, (a) individual size of 5 MW and above at one site with minimum bid capacity of 25 MW for intra-state projects; and (b) individual size of 50 MW and above at one site with minimum bid capacity of 50 MW for inter-state. The above guidelines apply to grid-connected Wind Power Projects with an individual size of 5 MW and above at one site with a minimum bid capacity of 25 MW for intra-State projects. Since the first respondent is admittedly an intra-State project and does not fulfil the above requirement, the guidelines (which in any event came into force subsequently) will have no application.In line with the above provisions, the guidelines that were issued by the first appellant on 18 March 2016 provided a format for the issuance of commissioning certificates. The format required readings of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters. The format required the submission of this data in order to establish the date on which a particular project had been commissioned. The actual date of commissioning would determine the applicable tariff; the tariff of Rs 5.92 per unit would apply to projects which were commissioned on or before 31 March 2016, while the new rate of Rs 4.78 per unit would apply to projects which were commissioned on or after 1 April 2016. Requiring the SLDC to submit data of the actual injection of power into the grid was with the objective of establishing the actual commissioning of the project.
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Andhra Bank Vs. Official Liquidator | Fund etc. vs. Kartick Das etc. [(1994) 4 SCC 225] . An unreasoned order does not subserve the doctrine of fair play [See M/s. Mangalore Ganesh Beedi Works Vs. The Commissioner of Income Tax, Mysore and Anr. JT 2005 (2) SC 442 ]. 32. In UCO Bank vs. Official Liquidator, High Court, Bombay and Another [(1994) 5 SCC 1] , whereupon Mr. Gupta placed strong reliance, this Court although noticed the legislative intent in enacting Sections 529 and 529-A did not lay down the law that the claim of the workers ranked higher in priority than the secured creditors. It merely states that for achieving the purpose for which the said amendment was made, it is necessary that the amended provisions must apply to all available securities which form part of the assets of the company in liquidation on the date of the amendment. 33. Submission of Mr. Gupta, that the impugned order having been passed by the learned Single Judge in the year 1993, the considerations which prevailed at that time only should be considered, cannot be accepted as it is trite that even the appellate court while passing its order may take into consideration, the subsequent events. 34. In Rajesh D. Darbar and Others Vs. Narasingrao Krishnaji Kulkarni & Ors. [(2003) 7 SCC 219] , this Court noticed: 4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama [1934] 294 U.S. 600, illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Choudhuri AIR 1941 FC 5 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs - cannot deny rights - to make them justly relevant in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. This Courts judgment in Pasupuleti Venkateswarlu v. Motor & General Traders AIR 1975 SC 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine - See V.P.R.V. Chockalingam Chetty v. Seethai Ache AIR 1927 PC 252 . [See also Board of Control for Cricket, India and Anr. Vs. Netaji Cricket Club and Ors. [JT 2005 (1) SC 235 ]. 35. Correctness of an equitable order like the impugned one may be judged upon taking into consideration the subsequent events. Subsequent events as pointed out by Mr. Rao, furthermore, are not disputed. 36. The learned Company Judge in its order dated 8.5.2002 has noticed that a substantive amount has been paid to the workers towards their past dues. Payments have also been made not only to the statutory authorities but also to the secured creditors and the Special Officers. The workmen since the sale of the assets of the company as a working concern, have received substantial amounts towards their past dues and are being paid their current dues. A situation of starvation of the workmen does no longer prevail. The order passed by the learned Single Judge cannot moreover be sustained on amongst others, the ground of not assigning any reason in support thereof. The Division Bench of the High Court also relied on the observation made in paragraph 76 of this Courts judgment in Allahabad Bank.(supra) It did not advert independently to any other contention of the parties. 37. The contention of Mr. Gupta that Debts Recovery Tribunal having been established in the West Bengal on 27.4.1994, the dispute has to be resolved without reference to the RDB Act, also cannot be accepted. 38. The rights and obligations of the parties would only be crystallized after the lis is adjudicated upon. 39. The question of issuance of any certificate in terms of Section 19 of the RDB Act would arise only upon the conclusion of the proceeding before it. 40. In view of our findings aforementioned, it may not be necessary for us to consider the question as to whether the claim of the company having been underwritten by the Duncan Agro Industries Limited in favour of the Bank, it has suffered any prejudice or not. | 1[ds]26. Such an observation was, thus, neither required to be made keeping in view the fact situation obtaining therein nor does it find support from the clear and unambiguous language contained in Section 529-A(1)(a). We have, therefore, no hesitation in holding that finding of this Court in Allahabad Bank (supra) to the aforementioned extent does not lay down the correct law29. No reason has been assigned in support of the said direction. The contentions of the parties had not been noticed. What impelled the learned Judge in issuing the said directions is not discernible. The jurisdictional question had also not been addressed30. Whether the workmen could be directed to be paid on an ad hoc basis having regard to their claim of past dues vis-a-vis the claim of the Appellants had not been deliberated upon. When a matter is not pending before the Tribunal under the RDB Act, in terms of Section 19(19) thereof, the secured creditors would not get priority per se as it is qualified by the words in accordance with the provisions of Section 529-A. The claims of the secured creditors are, thus, required to be considered giving priority over unsecured creditors but their claim would be pari passu with the workmen38. The rights and obligations of the parties would only be crystallized after the lis is adjudicated upon39. The question of issuance of any certificate in terms of Section 19 of the RDB Act would arise only upon the conclusion of the proceeding before it40. In view of our findings aforementioned, it may not be necessary for us to consider the question as to whether the claim of the company having been underwritten by the Duncan Agro Industries Limited in favour of the Bank, it has suffered any prejudice or not22. In terms of the aforementioned provisions, the secured creditors have two options (i) they may desire to go before the Company Judge; or (ii) they may stand outside the winding up proceedings. The secured creditors of the second category, however, would come within the purview of Section 529- A(1)(b) read with proviso (c) appended to Section 529(1). The workmens portion as contained in proviso (c) of sub-section (3) of Section 529 in relation to the security of any secured creditor means the amount which bears to the value of the security in the same proportion as the amount of the workmens dues bears to the aggregate of (a) workmens due, and (b) the amount of the debts due to all the creditorssubmission of Mr. Gupta is that in a situation of this nature, what was necessary to be considered by the learned Single Judge was to find out the amount in relation whereto the appellant was raising its claim as a secured creditor, namely, 135 lakhs vis- a-vis the aggregate of the amount of the workmens dues of 19 crores and the claim of any other secured creditor was not required to be taken into consideration23. The language of Section 529-A is also clear and unequivocal, in terms whereof the workmens due or the debts due to the secured creditors to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with such dues shall have priority over all other debts. Once the workmens portion is worked out in terms of proviso (c) of sub-section (1) of Section 529, indisputably the claim of the workmen as also the secured creditors will have to be paid in terms of Section 529-A23. The language of Section 529-A is also clear and unequivocal, in terms whereof the workmens due or the debts due to the secured creditors to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with such dues shall have priority over all other debts. Once the workmens portion is worked out in terms of proviso (c) of sub-section (1) of Section 529, indisputably the claim of the workmen as also the secured creditors will have to be paid in terms of Section 529-A25. While determining the Point No.6, however, a stray observation was made to the effect that the workmens dues have priority over all other creditors, secured and unsecured because of Section 529-A(1)(a). Such a question did not arise in the case as the Allahabad Bank was indisputably an unsecured creditor26. Such an observation was, thus, neither required to be made keeping in view the fact situation obtaining therein nor does it find support from the clear and unambiguous language contained in Section 529-A(1)(a). We have, therefore, no hesitation in holding that finding of this Court in Allahabad Bank (supra) to the aforementioned extent does not lay down the correct law27. The court also wrongly placed reliance on National Textile Workers Union and Others vs. P.R. Ramakrishnan and Others [(1983) 1 SCC 228] . The question which arose therein was only as regard the right of the workers be heard in the winding up proceeding. The said decision was, therefore, not applicable25. While determining the Point No.6, however, a stray observation was made to the effect that the workmens dues have priority over all other creditors, secured and unsecured because of Section 529-A(1)(a). Such a question did not arise in the case as the Allahabad Bank was indisputably an unsecured creditor26. Such an observation was, thus, neither required to be made keeping in view the fact situation obtaining therein nor does it find support from the clear and unambiguous language contained in Section 529-A(1)(a). We have, therefore, no hesitation in holding that finding of this Court in Allahabad Bank (supra) to the aforementioned extent does not lay down the correct law27. The court also wrongly placed reliance on National Textile Workers Union and Others vs. P.R. Ramakrishnan and Others [(1983) 1 SCC 228] . The question which arose therein was only as regard the right of the workers be heard in the winding up proceeding. The said decision was, therefore, not applicable31. Section 446 of the Companies Act indisputably confers a wide power upon the Company Judge, but such a power can be exercised only upon consideration of the respective contentions of the parties raised in a suit or a proceeding or any claim made by or against the company. A question of determining the priorities would also fall for consideration if the parties claiming the same are before the court. Section 446 of the Companies Act ipso facto confers no power upon the court to pass interlocutory orders. The question as to whether the courts have inherent power to pass such orders, in our opinion, does not arise for consideration in this proceeding. Assuming such a power exists, it was imperative that the same should have been exercised on consideration of the factors laid down by this Court in Morgan Stanley Mutual Fund etc. vs. Kartick Das etc. [(1994) 4 SCC 225] . An unreasoned order does not subserve the doctrine of fair play [See M/s. Mangalore Ganesh Beedi Works Vs. The Commissioner of Income Tax, Mysore and Anr. JT 2005 (2) SC 442 ]31. Section 446 of the Companies Act indisputably confers a wide power upon the Company Judge, but such a power can be exercised only upon consideration of the respective contentions of the parties raised in a suit or a proceeding or any claim made by or against the company. A question of determining the priorities would also fall for consideration if the parties claiming the same are before the court. Section 446 of the Companies Act ipso facto confers no power upon the court to pass interlocutory orders. The question as to whether the courts have inherent power to pass such orders, in our opinion, does not arise for consideration in this proceeding. Assuming such a power exists, it was imperative that the same should have been exercised on consideration of the factors laid down by this Court in Morgan Stanley Mutual Fund etc. vs. Kartick Das etc. [(1994) 4 SCC 225] . An unreasoned order does not subserve the doctrine of fair play [See M/s. Mangalore Ganesh Beedi Works Vs. The Commissioner of Income Tax, Mysore and Anr. JT 2005 (2) SC 442 ]35. Correctness of an equitable order like the impugned one may be judged upon taking into consideration the subsequent events. Subsequent events as pointed out by Mr. Rao, furthermore, are not disputed36. The learned Company Judge in its order dated 8.5.2002 has noticed that a substantive amount has been paid to the workers towards their past dues. Payments have also been made not only to the statutory authorities but also to the secured creditors and the Special Officers. The workmen since the sale of the assets of the company as a working concern, have received substantial amounts towards their past dues and are being paid their current dues. A situation of starvation of the workmen does no longer prevail. The order passed by the learned Single Judge cannot moreover be sustained on amongst others, the ground of not assigning any reason in support thereof. The Division Bench of the High Court also relied on the observation made in paragraph 76 of this Courts judgment in Allahabad Bank.(supra) It did not advert independently to any other contention of the parties37. The contention of Mr. Gupta that Debts Recovery Tribunal having been established in the West Bengal on 27.4.1994, the dispute has to be resolved without reference to the RDB Act, also cannot be accepted37. The contention of Mr. Gupta that Debts Recovery Tribunal having been established in the West Bengal on 27.4.1994, the dispute has to be resolved without reference to the RDB Act, also cannot be | 1 | 7,464 | 1,844 | ### 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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Fund etc. vs. Kartick Das etc. [(1994) 4 SCC 225] . An unreasoned order does not subserve the doctrine of fair play [See M/s. Mangalore Ganesh Beedi Works Vs. The Commissioner of Income Tax, Mysore and Anr. JT 2005 (2) SC 442 ]. 32. In UCO Bank vs. Official Liquidator, High Court, Bombay and Another [(1994) 5 SCC 1] , whereupon Mr. Gupta placed strong reliance, this Court although noticed the legislative intent in enacting Sections 529 and 529-A did not lay down the law that the claim of the workers ranked higher in priority than the secured creditors. It merely states that for achieving the purpose for which the said amendment was made, it is necessary that the amended provisions must apply to all available securities which form part of the assets of the company in liquidation on the date of the amendment. 33. Submission of Mr. Gupta, that the impugned order having been passed by the learned Single Judge in the year 1993, the considerations which prevailed at that time only should be considered, cannot be accepted as it is trite that even the appellate court while passing its order may take into consideration, the subsequent events. 34. In Rajesh D. Darbar and Others Vs. Narasingrao Krishnaji Kulkarni & Ors. [(2003) 7 SCC 219] , this Court noticed: 4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama [1934] 294 U.S. 600, illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Choudhuri AIR 1941 FC 5 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs - cannot deny rights - to make them justly relevant in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. This Courts judgment in Pasupuleti Venkateswarlu v. Motor & General Traders AIR 1975 SC 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine - See V.P.R.V. Chockalingam Chetty v. Seethai Ache AIR 1927 PC 252 . [See also Board of Control for Cricket, India and Anr. Vs. Netaji Cricket Club and Ors. [JT 2005 (1) SC 235 ]. 35. Correctness of an equitable order like the impugned one may be judged upon taking into consideration the subsequent events. Subsequent events as pointed out by Mr. Rao, furthermore, are not disputed. 36. The learned Company Judge in its order dated 8.5.2002 has noticed that a substantive amount has been paid to the workers towards their past dues. Payments have also been made not only to the statutory authorities but also to the secured creditors and the Special Officers. The workmen since the sale of the assets of the company as a working concern, have received substantial amounts towards their past dues and are being paid their current dues. A situation of starvation of the workmen does no longer prevail. The order passed by the learned Single Judge cannot moreover be sustained on amongst others, the ground of not assigning any reason in support thereof. The Division Bench of the High Court also relied on the observation made in paragraph 76 of this Courts judgment in Allahabad Bank.(supra) It did not advert independently to any other contention of the parties. 37. The contention of Mr. Gupta that Debts Recovery Tribunal having been established in the West Bengal on 27.4.1994, the dispute has to be resolved without reference to the RDB Act, also cannot be accepted. 38. The rights and obligations of the parties would only be crystallized after the lis is adjudicated upon. 39. The question of issuance of any certificate in terms of Section 19 of the RDB Act would arise only upon the conclusion of the proceeding before it. 40. In view of our findings aforementioned, it may not be necessary for us to consider the question as to whether the claim of the company having been underwritten by the Duncan Agro Industries Limited in favour of the Bank, it has suffered any prejudice or not.
### Response:
1
### Explanation:
extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with such dues shall have priority over all other debts. Once the workmens portion is worked out in terms of proviso (c) of sub-section (1) of Section 529, indisputably the claim of the workmen as also the secured creditors will have to be paid in terms of Section 529-A25. While determining the Point No.6, however, a stray observation was made to the effect that the workmens dues have priority over all other creditors, secured and unsecured because of Section 529-A(1)(a). Such a question did not arise in the case as the Allahabad Bank was indisputably an unsecured creditor26. Such an observation was, thus, neither required to be made keeping in view the fact situation obtaining therein nor does it find support from the clear and unambiguous language contained in Section 529-A(1)(a). We have, therefore, no hesitation in holding that finding of this Court in Allahabad Bank (supra) to the aforementioned extent does not lay down the correct law27. The court also wrongly placed reliance on National Textile Workers Union and Others vs. P.R. Ramakrishnan and Others [(1983) 1 SCC 228] . The question which arose therein was only as regard the right of the workers be heard in the winding up proceeding. The said decision was, therefore, not applicable25. While determining the Point No.6, however, a stray observation was made to the effect that the workmens dues have priority over all other creditors, secured and unsecured because of Section 529-A(1)(a). Such a question did not arise in the case as the Allahabad Bank was indisputably an unsecured creditor26. Such an observation was, thus, neither required to be made keeping in view the fact situation obtaining therein nor does it find support from the clear and unambiguous language contained in Section 529-A(1)(a). We have, therefore, no hesitation in holding that finding of this Court in Allahabad Bank (supra) to the aforementioned extent does not lay down the correct law27. The court also wrongly placed reliance on National Textile Workers Union and Others vs. P.R. Ramakrishnan and Others [(1983) 1 SCC 228] . The question which arose therein was only as regard the right of the workers be heard in the winding up proceeding. The said decision was, therefore, not applicable31. Section 446 of the Companies Act indisputably confers a wide power upon the Company Judge, but such a power can be exercised only upon consideration of the respective contentions of the parties raised in a suit or a proceeding or any claim made by or against the company. A question of determining the priorities would also fall for consideration if the parties claiming the same are before the court. Section 446 of the Companies Act ipso facto confers no power upon the court to pass interlocutory orders. The question as to whether the courts have inherent power to pass such orders, in our opinion, does not arise for consideration in this proceeding. Assuming such a power exists, it was imperative that the same should have been exercised on consideration of the factors laid down by this Court in Morgan Stanley Mutual Fund etc. vs. Kartick Das etc. [(1994) 4 SCC 225] . An unreasoned order does not subserve the doctrine of fair play [See M/s. Mangalore Ganesh Beedi Works Vs. The Commissioner of Income Tax, Mysore and Anr. JT 2005 (2) SC 442 ]31. Section 446 of the Companies Act indisputably confers a wide power upon the Company Judge, but such a power can be exercised only upon consideration of the respective contentions of the parties raised in a suit or a proceeding or any claim made by or against the company. A question of determining the priorities would also fall for consideration if the parties claiming the same are before the court. Section 446 of the Companies Act ipso facto confers no power upon the court to pass interlocutory orders. The question as to whether the courts have inherent power to pass such orders, in our opinion, does not arise for consideration in this proceeding. Assuming such a power exists, it was imperative that the same should have been exercised on consideration of the factors laid down by this Court in Morgan Stanley Mutual Fund etc. vs. Kartick Das etc. [(1994) 4 SCC 225] . An unreasoned order does not subserve the doctrine of fair play [See M/s. Mangalore Ganesh Beedi Works Vs. The Commissioner of Income Tax, Mysore and Anr. JT 2005 (2) SC 442 ]35. Correctness of an equitable order like the impugned one may be judged upon taking into consideration the subsequent events. Subsequent events as pointed out by Mr. Rao, furthermore, are not disputed36. The learned Company Judge in its order dated 8.5.2002 has noticed that a substantive amount has been paid to the workers towards their past dues. Payments have also been made not only to the statutory authorities but also to the secured creditors and the Special Officers. The workmen since the sale of the assets of the company as a working concern, have received substantial amounts towards their past dues and are being paid their current dues. A situation of starvation of the workmen does no longer prevail. The order passed by the learned Single Judge cannot moreover be sustained on amongst others, the ground of not assigning any reason in support thereof. The Division Bench of the High Court also relied on the observation made in paragraph 76 of this Courts judgment in Allahabad Bank.(supra) It did not advert independently to any other contention of the parties37. The contention of Mr. Gupta that Debts Recovery Tribunal having been established in the West Bengal on 27.4.1994, the dispute has to be resolved without reference to the RDB Act, also cannot be accepted37. The contention of Mr. Gupta that Debts Recovery Tribunal having been established in the West Bengal on 27.4.1994, the dispute has to be resolved without reference to the RDB Act, also cannot be
|
SHYAM SAHNI Vs. ARJUN PRAKASH AND OTHERS | date of hearing i.e. 07.03.2017, respondent No.1 offered three properties owned by his mother-in-law (Rama Khanna from Amritsar) by depositing title deeds stating that he has no other security to offer. Observing that respondent No.1 has failed to comply with his undertakings/statements, on 26.05.2017, the learned Single Judge directed respondent No.1 to deposit his passport and made an order restraining respondent No.1 from leaving India. 23. According to respondent No.1, he has shown his bonafide by producing additional security before the Court by depositing original title deeds of three properties belonging to his mother-in-law (Rama Khanna from Amritsar) to the tune of Rs.4.45 crores. Learned counsel for respondent No.1 has submitted that equitable mortgage of the suit property (i.e. 68, Friends Colony (West), First Floor, New Delhi) was made even in the first week of October, 2007 which was much prior to the ex-parte stay order dated 02.06.2008. Learned counsel further submitted that in October, 2008, additional Working Capital was granted to the company-M/s. Soul & Attires Creations Private Limited for Rs.5 crores (against Stock and Book Debts) as per banking regulations. According to respondent No.1, this enhanced limit is never a loan against the property; but only against Stocks and Book Debts. Learned counsel appearing for respondent No.1 has submitted that respondent No.1 is a bonafide legal owner of the suit property by means of registered will made in his favour by his father-Sarabjit Prakash dated 29.09.2006 who had the legal title in his name by way of registered sale deed executed by his wife Usha Prakash in exercise of the power vested in her through the registered Power of Attorney dated 03.01.2002 given to her by her mother Niamat Sahni and thus, respondent No.1 claims title over the suit property No.68, Friends Colony (West), First Floor, New Delhi. The question regarding the correctness of the sale deed executed by Usha Prakash – mother of respondent No.1 in favour of Sarabjit Prakash and the dispute raised regarding the title of the property could be determined only in the suit after parties adduced oral and documentary evidence. 24. The short point falling for consideration is whether respondent No.1 is to be proceeded for contempt and whether the learned Single Judge was right in directing the deposit of first respondents passport. Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the Court. On behalf of respondent No.1, learned counsel submitted that respondent No.1 was making genuine efforts to pay the amount to the Bank and clear the charge on the property; but due to unavoidable circumstances, they could not clear the charge over the suit property. As pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.2015. 25. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing. 26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmed. 27. On behalf of the appellant, it is stated that in view of the order of the Division Bench, the contempt petition has been disposed of by the learned Single Judge on 04.12.2018 and prayed for restoration of the contempt petition. Since the suit is of the year 2008 and much of the courts time has been spent on the interim orders and on the contempt petition, we are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree. | 1[ds]Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the CourtAs pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.201525. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmedwe are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree | 1 | 4,578 | 541 | ### 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:
date of hearing i.e. 07.03.2017, respondent No.1 offered three properties owned by his mother-in-law (Rama Khanna from Amritsar) by depositing title deeds stating that he has no other security to offer. Observing that respondent No.1 has failed to comply with his undertakings/statements, on 26.05.2017, the learned Single Judge directed respondent No.1 to deposit his passport and made an order restraining respondent No.1 from leaving India. 23. According to respondent No.1, he has shown his bonafide by producing additional security before the Court by depositing original title deeds of three properties belonging to his mother-in-law (Rama Khanna from Amritsar) to the tune of Rs.4.45 crores. Learned counsel for respondent No.1 has submitted that equitable mortgage of the suit property (i.e. 68, Friends Colony (West), First Floor, New Delhi) was made even in the first week of October, 2007 which was much prior to the ex-parte stay order dated 02.06.2008. Learned counsel further submitted that in October, 2008, additional Working Capital was granted to the company-M/s. Soul & Attires Creations Private Limited for Rs.5 crores (against Stock and Book Debts) as per banking regulations. According to respondent No.1, this enhanced limit is never a loan against the property; but only against Stocks and Book Debts. Learned counsel appearing for respondent No.1 has submitted that respondent No.1 is a bonafide legal owner of the suit property by means of registered will made in his favour by his father-Sarabjit Prakash dated 29.09.2006 who had the legal title in his name by way of registered sale deed executed by his wife Usha Prakash in exercise of the power vested in her through the registered Power of Attorney dated 03.01.2002 given to her by her mother Niamat Sahni and thus, respondent No.1 claims title over the suit property No.68, Friends Colony (West), First Floor, New Delhi. The question regarding the correctness of the sale deed executed by Usha Prakash – mother of respondent No.1 in favour of Sarabjit Prakash and the dispute raised regarding the title of the property could be determined only in the suit after parties adduced oral and documentary evidence. 24. The short point falling for consideration is whether respondent No.1 is to be proceeded for contempt and whether the learned Single Judge was right in directing the deposit of first respondents passport. Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the Court. On behalf of respondent No.1, learned counsel submitted that respondent No.1 was making genuine efforts to pay the amount to the Bank and clear the charge on the property; but due to unavoidable circumstances, they could not clear the charge over the suit property. As pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.2015. 25. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing. 26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmed. 27. On behalf of the appellant, it is stated that in view of the order of the Division Bench, the contempt petition has been disposed of by the learned Single Judge on 04.12.2018 and prayed for restoration of the contempt petition. Since the suit is of the year 2008 and much of the courts time has been spent on the interim orders and on the contempt petition, we are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree.
### Response:
1
### Explanation:
Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the CourtAs pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.201525. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmedwe are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree
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Spedag East Africa Limited Vs. Surendra Engineering Corporation Private Limited | was that the invoices which it initially raised on Shark Logistics was on the instructions of the Respondent. This was specifically noted in a communication dated 21 April 2008 addressed by the Appellant to the Respondent. Originally, the invoices were raised on Shark Logistics and upon its failure to honour them, the Appellant demanded payment from the Respondent on 21 April 2008. The Respondent did not address any communication in response to this letter. Significantly, on 4 October 2007 an e-mail was addressed to Brijen Parikh by the Appellant asking for payment of an outstanding amount of U.S.$ 438,377.34. This was followed by a further communication dated 19 October 2007 rectifying the amount claimed to U.S.$ 397,443.67. On 26 October 2007, Brijen Parikh, who was a partner in the erstwhile partnership and is admittedly a Director of the Respondent, addressed an e-mail to the Appellant. The subject in the e-mail is stated in the reference as Payment to Spedag East Africa (the Appellant before the Court). The e-mail is in the following terms:RE: Payment to Spedag East AfricaDear Sir,With reference to the below mail, please be informed that as per our record, the balance payment is Amount U.S.$206,403.67 not U.S.D 397,143.67.We will remit Amount: U.S.$206,403.67 as per our record.Thanks & Regards,BrijenParikh. (emphasis supplied)The e-mail contains a clear admission of liability on the part of the Respondent. The admission of liability is clearly of the payment due to the Appellant because the subject of the e-mail is not an amount which is due in the abstract, but a specified amount (US$ 206,403.67) which was due and owing to the Appellant. The Respondent clearly stated that it would remit that amount as per our record. This admission of liability displaces the defence which was sought to be raised to the effect that there was no privity of contract between the Respondent and the Appellant and that there was an outstanding due by the Respondent to Shark Logistics with which the Respondent dealt on a principal to principal basis. If there was no privity of contract between the Respondent and the Appellant, there would have been no occasion for the Respondent to address an e-mail to the Appellant specifically confirming the amount outstanding in the sum of U.S.$ 206,403.67 and to state that the amount would be remitted. It may be noted that the communication dated 26 October 2007 was addressed by the Respondent in response to an e-mail of the Appellant seeking a confirmation of liability.9. In the affidavit in reply that was filed to the Company Petition for winding up, the Respondent stated that prior to its incorporation on 8 September 2008, the Respondent was a partnership firm constituted under a Deed of Partnership dated 2 April 1994 in the name and style of Surendra Engineering Corporation. Upon the incorporation of the Company, the assets and liabilities of the partnership firm, it is stated, were to the tune of U.S.$ 206,403.67. The Respondent has stated that this is on account of the Respondents contract dated 8 March 2006 with Shark Logistics. The Respondent has specifically averred that in correspondence, it had brought to the notice of the Appellant that the amount due and payable, according to its books of account, was only U.S.$ 206,403.67 and hence, a larger claim of the Appellant in the amount of U.S.$ 453,838.05 against the Company was denied. The acknowledgement dated 26 October 2007 was sought to be explained by stating that it was based on bills received by and authorised for payment by Shark Logistics. If as is now submitted before the Court, the dealings between the Respondent and Shark Logistics were on a principal to principal basis, there would have been no occasion for Shark Logistics to authorise the payment of the aforesaid sum to the Appellant.10. Considering the matter in its entirety and after having examined the documents upon which the rival submissions have been founded, we are of the view that there is a debt due and payable by the Respondent to the Appellant in the amount of U.S.$ 206,403.67. The defence of Respondent that there was no privity of contract with the Appellant was thoroughly lacking in bona fides and was spurious, speculative, illusory and misconceived as explained in the judgment of the Supreme Court in IBA Health (supra). The defence clearly runs in the teeth of a clear admission of liability contained in the Respondents e-mail dated 26 October 2007. This, as noted earlier, must also be weighed together with other contemporaneous material on record. That includes the fact that there was no denial of liability when the Appellant addressed a communication to the Respondent on 21 April 2008 specifically stating that the invoices which were initially raised on Shark Logistics were on the instructions of the Respondent. Admittedly, there was no reply to the statutory notice for winding up. The Learned Single Judge was, with respect, in error in accepting the defence that there was no privity of contract between the Appellant and the Respondent and in holding that a bona fide dispute arose.11. In these circumstances, an order for the admission of the Petition for winding up would have been warranted. However, it would be appropriate to furnish an opportunity to the Respondent to deposit an amount equivalent to U.S.$ 206,403.67 to the credit of the Summary Suit which has been instituted in this Court by the Appellant, to establish its bona fides. Such an opportunity should, in our view, be granted in the interests of justice in order to obviate the consequence of the admission of a Company Petition for winding up. The amount upon deposit would lie to the credit of the suit and abide by such further order that may be passed by the Learned Single Judge at the hearing of the Summons for Judgment. The Court has been informed that the Summons for Judgment has been adjourned by the Learned Single Judge on the Original Side, in view of the admission of this appeal. | 0[ds]10. Considering the matter in its entirety and after having examined the documents upon which the rival submissions have been founded, we are of the view that there is a debt due and payable by the Respondent to the Appellant in the amount of U.S.$ 206,403.67. The defence of Respondent that there was no privity of contract with the Appellant was thoroughly lacking in bona fides and was spurious, speculative, illusory and misconceived as explained in the judgment of the Supreme Court in IBA Health (supra). The defence clearly runs in the teeth of a clear admission of liability contained in the Respondentsdated 26 October 2007. This, as noted earlier, must also be weighed together with other contemporaneous material on record. That includes the fact that there was no denial of liability when the Appellant addressed a communication to the Respondent on 21 April 2008 specifically stating that the invoices which were initially raised on Shark Logistics were on the instructions of the Respondent. Admittedly, there was no reply to the statutory notice for winding up. The Learned Single Judge was, with respect, in error in accepting the defence that there was no privity of contract between the Appellant and the Respondent and in holding that a bona fide dispute arose.11. In these circumstances, an order for the admission of the Petition for winding up would have been warranted. However, it would be appropriate to furnish an opportunity to the Respondent to deposit an amount equivalent to U.S.$ 206,403.67 to the credit of the Summary Suit which has been instituted in this Court by the Appellant, to establish its bona fides. Such an opportunity should, in our view, be granted in the interests of justice in order to obviate the consequence of the admission of a Company Petition for winding up. | 0 | 2,257 | 333 | ### Instruction:
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was that the invoices which it initially raised on Shark Logistics was on the instructions of the Respondent. This was specifically noted in a communication dated 21 April 2008 addressed by the Appellant to the Respondent. Originally, the invoices were raised on Shark Logistics and upon its failure to honour them, the Appellant demanded payment from the Respondent on 21 April 2008. The Respondent did not address any communication in response to this letter. Significantly, on 4 October 2007 an e-mail was addressed to Brijen Parikh by the Appellant asking for payment of an outstanding amount of U.S.$ 438,377.34. This was followed by a further communication dated 19 October 2007 rectifying the amount claimed to U.S.$ 397,443.67. On 26 October 2007, Brijen Parikh, who was a partner in the erstwhile partnership and is admittedly a Director of the Respondent, addressed an e-mail to the Appellant. The subject in the e-mail is stated in the reference as Payment to Spedag East Africa (the Appellant before the Court). The e-mail is in the following terms:RE: Payment to Spedag East AfricaDear Sir,With reference to the below mail, please be informed that as per our record, the balance payment is Amount U.S.$206,403.67 not U.S.D 397,143.67.We will remit Amount: U.S.$206,403.67 as per our record.Thanks & Regards,BrijenParikh. (emphasis supplied)The e-mail contains a clear admission of liability on the part of the Respondent. The admission of liability is clearly of the payment due to the Appellant because the subject of the e-mail is not an amount which is due in the abstract, but a specified amount (US$ 206,403.67) which was due and owing to the Appellant. The Respondent clearly stated that it would remit that amount as per our record. This admission of liability displaces the defence which was sought to be raised to the effect that there was no privity of contract between the Respondent and the Appellant and that there was an outstanding due by the Respondent to Shark Logistics with which the Respondent dealt on a principal to principal basis. If there was no privity of contract between the Respondent and the Appellant, there would have been no occasion for the Respondent to address an e-mail to the Appellant specifically confirming the amount outstanding in the sum of U.S.$ 206,403.67 and to state that the amount would be remitted. It may be noted that the communication dated 26 October 2007 was addressed by the Respondent in response to an e-mail of the Appellant seeking a confirmation of liability.9. In the affidavit in reply that was filed to the Company Petition for winding up, the Respondent stated that prior to its incorporation on 8 September 2008, the Respondent was a partnership firm constituted under a Deed of Partnership dated 2 April 1994 in the name and style of Surendra Engineering Corporation. Upon the incorporation of the Company, the assets and liabilities of the partnership firm, it is stated, were to the tune of U.S.$ 206,403.67. The Respondent has stated that this is on account of the Respondents contract dated 8 March 2006 with Shark Logistics. The Respondent has specifically averred that in correspondence, it had brought to the notice of the Appellant that the amount due and payable, according to its books of account, was only U.S.$ 206,403.67 and hence, a larger claim of the Appellant in the amount of U.S.$ 453,838.05 against the Company was denied. The acknowledgement dated 26 October 2007 was sought to be explained by stating that it was based on bills received by and authorised for payment by Shark Logistics. If as is now submitted before the Court, the dealings between the Respondent and Shark Logistics were on a principal to principal basis, there would have been no occasion for Shark Logistics to authorise the payment of the aforesaid sum to the Appellant.10. Considering the matter in its entirety and after having examined the documents upon which the rival submissions have been founded, we are of the view that there is a debt due and payable by the Respondent to the Appellant in the amount of U.S.$ 206,403.67. The defence of Respondent that there was no privity of contract with the Appellant was thoroughly lacking in bona fides and was spurious, speculative, illusory and misconceived as explained in the judgment of the Supreme Court in IBA Health (supra). The defence clearly runs in the teeth of a clear admission of liability contained in the Respondents e-mail dated 26 October 2007. This, as noted earlier, must also be weighed together with other contemporaneous material on record. That includes the fact that there was no denial of liability when the Appellant addressed a communication to the Respondent on 21 April 2008 specifically stating that the invoices which were initially raised on Shark Logistics were on the instructions of the Respondent. Admittedly, there was no reply to the statutory notice for winding up. The Learned Single Judge was, with respect, in error in accepting the defence that there was no privity of contract between the Appellant and the Respondent and in holding that a bona fide dispute arose.11. In these circumstances, an order for the admission of the Petition for winding up would have been warranted. However, it would be appropriate to furnish an opportunity to the Respondent to deposit an amount equivalent to U.S.$ 206,403.67 to the credit of the Summary Suit which has been instituted in this Court by the Appellant, to establish its bona fides. Such an opportunity should, in our view, be granted in the interests of justice in order to obviate the consequence of the admission of a Company Petition for winding up. The amount upon deposit would lie to the credit of the suit and abide by such further order that may be passed by the Learned Single Judge at the hearing of the Summons for Judgment. The Court has been informed that the Summons for Judgment has been adjourned by the Learned Single Judge on the Original Side, in view of the admission of this appeal.
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10. Considering the matter in its entirety and after having examined the documents upon which the rival submissions have been founded, we are of the view that there is a debt due and payable by the Respondent to the Appellant in the amount of U.S.$ 206,403.67. The defence of Respondent that there was no privity of contract with the Appellant was thoroughly lacking in bona fides and was spurious, speculative, illusory and misconceived as explained in the judgment of the Supreme Court in IBA Health (supra). The defence clearly runs in the teeth of a clear admission of liability contained in the Respondentsdated 26 October 2007. This, as noted earlier, must also be weighed together with other contemporaneous material on record. That includes the fact that there was no denial of liability when the Appellant addressed a communication to the Respondent on 21 April 2008 specifically stating that the invoices which were initially raised on Shark Logistics were on the instructions of the Respondent. Admittedly, there was no reply to the statutory notice for winding up. The Learned Single Judge was, with respect, in error in accepting the defence that there was no privity of contract between the Appellant and the Respondent and in holding that a bona fide dispute arose.11. In these circumstances, an order for the admission of the Petition for winding up would have been warranted. However, it would be appropriate to furnish an opportunity to the Respondent to deposit an amount equivalent to U.S.$ 206,403.67 to the credit of the Summary Suit which has been instituted in this Court by the Appellant, to establish its bona fides. Such an opportunity should, in our view, be granted in the interests of justice in order to obviate the consequence of the admission of a Company Petition for winding up.
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Durai Muthuswami Vs. N. Nachiappan & Ors | also to prove that the result of the election had been materially affected by the improper acceptance of the nomination of the other defeated candidate, Unless he succeeds in proving that if the votes cast in favour of the candidate whose nomination had been improperly accepted would have gone in the petitioners favour and he would have got a majority he cannot succeed in his election petition. Section 100 (l) (d) (i) deals with such a contingency. It is not intended to provide a convenient technical plea in a case like this where there can be no dispute at all about the election being materially affected by the acceptance of the improper nomination."Materially affected" is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondents election should be declared to be void. He had also given the material facts as required under S. 83 (l) (a). We are, therefore, of opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the lst respondents nomination had been improperly accepted.4. One other point which the learned Judge failed to notice is that on the allegations contained in the petition, if they were established, the respondent must he deemed to suffer the disqualification under S. 9-A of the Act and all that S. l00 (l) (a,) requires is that on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or this Act. In order to declare his election void it is not necessary that the election petition should state that the result of the election was materially affected thereby. The question of the election being materially affected does not arise in a case falling under S. 100 (1) (a).5. Though it is not necessary to cite any authorities we may refer to a few decisions. In Balakrishna v. Fernandez, 1969-3 SCR 603 = (AIR l969 SC 1201) this Court pointed out that the first sub-section of S. l00 lays down the grounds for declaring an election to be void, that Ss. 100 and 101 deal with the substantive law on the subject of election, that these two sections circumscribe the conditions which must be established before an election can be declared void or another candidate declared elected. It further observed:The heads of substantive rights in S. 100 (1) are laid down in two separate parts: the first dealing with situations in which the election must be declared void on proof of certain facts, and the second in which the election can only be declared void in the result of the election in so far as it concerns the returned candidate, can be held to be materially affected on proof of some other facts..... In the first part they are that the candidate lacked the necessary qualification or had incurred disqualification.....These are grounds on proof of which by evidence, the election can be set aside without any further evidence. The second part is conditional that the result of the election, in so far as it concerns a returned candidate, was materially affected by the improper acceptance of a nomination....This condition has to be established by some evidence direct or circumstantial. It is, therefore, clear that the substantive rights to make an election petition are defined in these sections and the exercise of the right to petition is limited to the grounds specifically mentioned.Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of the People Act. Here we have to consider Sections 81, 83 and 86 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub-section (1) of S. 100 and S. 101. That as we have shown above creates the substantive right. Section 83 then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies..... The section is mandatory and requires first a concise statement of material facts...... What is the difference between material facts and particulars? The word material shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet."That lays down the proper test. In Vishwanatha v. Konappa, 1969-2 SCR 90 = (AIR 1969 SC 604 ) this Court pointed out that:"Where by an erroneous order of the Returning Officer poll is held which, but for that order was not necessary, the Court would be justified in declaring those contesting candidates elected, who, but for that order, would have been declared elected."6. It was urged before us by Mr. Natesan that we should summon the documents which were only four in number and decide the case ourselves. We do not know whether any further material would or would not be necessary to establish the ground sought to be made out by the appellant or whether any oral evidence would be necessary. In any case we do not consider it either necessary or expedient that we should deal with the matter directly ourselves. | 1[ds]"Materially affected" is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondents election should be declared to be void. He had also given the material facts as required under S. 83 (l) (a). We are, therefore, of opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the lst respondents nomination had been improperlydo not know whether any further material would or would not be necessary to establish the ground sought to be made out by the appellant or whether any oral evidence would be necessary. In any case we do not consider it either necessary or expedient that we should deal with the matter directly ourselves. | 1 | 2,590 | 208 | ### Instruction:
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also to prove that the result of the election had been materially affected by the improper acceptance of the nomination of the other defeated candidate, Unless he succeeds in proving that if the votes cast in favour of the candidate whose nomination had been improperly accepted would have gone in the petitioners favour and he would have got a majority he cannot succeed in his election petition. Section 100 (l) (d) (i) deals with such a contingency. It is not intended to provide a convenient technical plea in a case like this where there can be no dispute at all about the election being materially affected by the acceptance of the improper nomination."Materially affected" is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondents election should be declared to be void. He had also given the material facts as required under S. 83 (l) (a). We are, therefore, of opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the lst respondents nomination had been improperly accepted.4. One other point which the learned Judge failed to notice is that on the allegations contained in the petition, if they were established, the respondent must he deemed to suffer the disqualification under S. 9-A of the Act and all that S. l00 (l) (a,) requires is that on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or this Act. In order to declare his election void it is not necessary that the election petition should state that the result of the election was materially affected thereby. The question of the election being materially affected does not arise in a case falling under S. 100 (1) (a).5. Though it is not necessary to cite any authorities we may refer to a few decisions. In Balakrishna v. Fernandez, 1969-3 SCR 603 = (AIR l969 SC 1201) this Court pointed out that the first sub-section of S. l00 lays down the grounds for declaring an election to be void, that Ss. 100 and 101 deal with the substantive law on the subject of election, that these two sections circumscribe the conditions which must be established before an election can be declared void or another candidate declared elected. It further observed:The heads of substantive rights in S. 100 (1) are laid down in two separate parts: the first dealing with situations in which the election must be declared void on proof of certain facts, and the second in which the election can only be declared void in the result of the election in so far as it concerns the returned candidate, can be held to be materially affected on proof of some other facts..... In the first part they are that the candidate lacked the necessary qualification or had incurred disqualification.....These are grounds on proof of which by evidence, the election can be set aside without any further evidence. The second part is conditional that the result of the election, in so far as it concerns a returned candidate, was materially affected by the improper acceptance of a nomination....This condition has to be established by some evidence direct or circumstantial. It is, therefore, clear that the substantive rights to make an election petition are defined in these sections and the exercise of the right to petition is limited to the grounds specifically mentioned.Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of the People Act. Here we have to consider Sections 81, 83 and 86 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub-section (1) of S. 100 and S. 101. That as we have shown above creates the substantive right. Section 83 then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies..... The section is mandatory and requires first a concise statement of material facts...... What is the difference between material facts and particulars? The word material shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet."That lays down the proper test. In Vishwanatha v. Konappa, 1969-2 SCR 90 = (AIR 1969 SC 604 ) this Court pointed out that:"Where by an erroneous order of the Returning Officer poll is held which, but for that order was not necessary, the Court would be justified in declaring those contesting candidates elected, who, but for that order, would have been declared elected."6. It was urged before us by Mr. Natesan that we should summon the documents which were only four in number and decide the case ourselves. We do not know whether any further material would or would not be necessary to establish the ground sought to be made out by the appellant or whether any oral evidence would be necessary. In any case we do not consider it either necessary or expedient that we should deal with the matter directly ourselves.
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"Materially affected" is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondents election should be declared to be void. He had also given the material facts as required under S. 83 (l) (a). We are, therefore, of opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the lst respondents nomination had been improperlydo not know whether any further material would or would not be necessary to establish the ground sought to be made out by the appellant or whether any oral evidence would be necessary. In any case we do not consider it either necessary or expedient that we should deal with the matter directly ourselves.
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State of Madhya Pradesh & Others Vs. Dadabhoy's New Chirimiri Ponri Hill Colliery Company Private Limited & Others | (1), lessees under pre-1949 leases were relegated to the original position under which they were liable to pay royalty at rates agreed to in those leases whether the rate was over or below 5% provided by sec. 9 (1). As and when the Central Government issued the notification envisaged by the second part, such lessees would be obliged to pay royalty at the rate of 5% as prescribed for the time being in the Second Schedule, and even if the Government were, in the meantime, to enhance the rate as authorised by sec. 9 (3) upto the maximum rate of 20% at such rate but never more than 20%. The second part thus contemplated payment of royalty, on sec. 9 (1) being made applicable, at the most at the rate of 5% only, as no increase had till then been made under sec. 9 (3). 22. On December 29, 1961, the Central Government "in exercise of the powers conferred by sec. 30A" issued the notification directing that the provisions of sub-sec. (1) of sec. 9 of the said Act shall apply with immediate effect to or in relation to pre-1949 coal mining leases, subject to the modification that such lessees shall pay royalty at the rate specified in the agreements between the lessees and the lessors or at 2 1/2 % of F. O. R. price, whichever was higher, "in lieu of the rate of royalty specified in respect of coal in the Second Schedule to the said Act." 23. The argument urged on behalf of the State both before the High Court and before us was that the notification clearly envisaged payment of royalty at the rate agreed to between the lessor and the lessee or at 2 1/2% whichever was higher. Since, the agreement in the present case provided for royalty at graded rates which were higher than 2 1/2%, the company had to pay royalty at such agreed rates. The argument, in our opinion, is untenable as it is not borne out by the language of the notification itself and of sec. 30A and was therefore rightly repelled by the High Court. 24. The notification was issued, as it recites, in exercise of the powers conferred by sec. 30A. That power was to apply, by issuing a notification thereunder, secs. 9 (1) and 16 (1) and the rules made under secs. 13 and 18. The notification in terms directed the application of sec. 9 (1) which meant that on and from December 29, 1961 the company would have to pay royalty as prescribed under that sub-section read with the Second Schedule, that is, at 5% . The notification, however, applied sec. 9 (1) subject to one modification, namely, that lessees under the pre-1949 leases were to pay royalty at the rate provided in their leases or at 2 1/2% whichever was higher. The modification was to the rate applicable under sec. 9 (1) and the Second Schedule, that is, to the rate of 5% . Considering the object with which sec. 30A was enacted, viz., to phase the rate of 5% , and not to impose it at one stroke, the modification could not mean recovery at a rate inconsistent with sec. 9 (1) and the Second Schedule, that is, at the rate higher than 5% provided thereunder. 25.Such a modification, if it were to be construed as meaning payment at a rate higher than 5% would be in excess of the power under section 30A and also in contravention of the language of sec. 9 (1) and the Second Schedule. A modification, if any, would be for charging royalty at a rate lesser than the one provided under sec. 9 (1) and the Second Schedule, and not at a rate higher than such rate. A construction to the contrary would mean exercise of power in excess of that conferred by the section and would affect the validity of the notification. A literal meaning which the State canvassed for can, therefore, be accepted only at the cost of invalidating the notification. 26. The rule of construction that a court construing a provision of law must presume that the intention of the authority making it was not to exceed its power and to enact it validly is well-settled. Where, therefore, two constructions are possible, the one which sustains its validity must be preferred. On a plain reading of the notification, however, it is clear that what it meant was thatinstead of the rate flowing from the application of sec. 9(1) and the Second Schedule a modified rate should be applied, that is, "in lieu of the rate of royalty" specified in the Second Schedule, royalty at the agreed rate should be charged if it was lower than 5% , or at 2 1/2% minimum, whichever was higher. The notification, thus, did not empower the State Government to recover royalty at a rate higher than 5% in lieu of the rate chargeable under sec. 9 (1) and the Second Schedule which provided 5% only. 27. It appears that the State Government itself understood such a construction as proper, for, if it had understood otherwise, it would not have issued its order dated September 23, 1963 directing the Collector to recover royalty at 5% pursuant to the correspondence which had ensued between the company, the Central Government and the State Government. If it had understood the notification in the manner now urged by its counsel, it would have at once pointed out both to the company and the Central Government in that correspondence that it was entitled to recover royalty at the rates agreed to in the lease instead of at 5%. It was only in 1965 that it changed its mind and cancelled its previous order. On the construction placed by us on sec. 30A and the said notification, it was not entitled so to do. The High Court, in our view, was right in quashing that order as also the demand notices issued in pursuance of that order. | 0[ds]16. It is well-known that prior to the enactment of the 1948 Act, leases of mining areas had been granted by diverse authorities on different terms and conditions. The rates of royalty under those leases were inevitably divergent and were often fixed at very low rates. The purpose of enacting the 1948 Act was to bring about uniformity in such leases and with that end that Act had made provisions for power to modify the terms and conditions both in regard to the area and the period under such leases. The object of such provisions was to regulate in a systematic and scientific manner development of mining and minerals. Though under the Constitution that subject was left to the States, a power was carved out by entry 54 in List I for the exclusive exercise of it by the Centre. The consequence was the enactment of Act 67 of 1957 which was brought into operation from June 1, 195817. The purpose of passing that Act is clearly seen from the declaration required under entry 54, List I, in sec. 2, namely, that it was necessary for the Union to take under its control regulation of mines and the development of minerals. In pursuance of that object the Act made provisions with regard to the persons to whom prospecting licences and mining leases should be granted (Ss. 4 and 5), the maximum area for which such licences and leases should be granted (S. 6), and the period for which a mining lease should be granted (S. 8). In order that uniformity in leases granted before and after the commencement of the Act could be attained, power was also conferred to bring all mining leases granted before October 25, 1949 into conformity with the provisions of the Act and the Rules made thereunder. (Ss. 16, 17 and 18). As regards royalty payable by the lessees under diverse kinds of leases for different minerals granted before October 25, 1949 uniformity was sought to be brought about by sec. 9 (1)18. In the 1948 Act the Central Government had the power to make rules for regulating the grant of mining leases, or for prohibiting the grant of such leases in respect of any mineral including the power to make rules as regards the terms upon which and the conditions subject to which such leases would be granted. (S. 5) Under sec. 7 of that Act, the Central Government also could make rules for modifying or altering the terms and conditions of leases granted before the commencement of that Act, that is, before October 25, 1949. In pursuance of the power under sec. 5. The Central Government framed the Mineral Concession Rules, 1949 and provided by R. 41 thereof read with the First Schedule thereto that the rate of royalty chargeable under a lease in respect of coal would be 5% of the F. O. R. price per ton. No rules, however, were made under Sec. 7, and therefore, the rate of royalty provided by R. 41 did not govern pre-1949 leases, with the result that the lessees thereunder continued to pay royalty provided in their respective leases19. Such diversity in the rates of royalty was sought to be done away with by prescribing uniform rates of royalty in respect of each mineral through sec. 9. Item 1 in the Second Schedule prescribed, in respect of coal, the rate of royalty at 5% of the F. O. R. price subject to a minimum of fifty naye paise per ton. The result of S. 9 and item 1 in the Second Schedule was that all lessees whether their leases were granted before or after the commencement of the Act became liable to pay royalty at the uniform rate of 5% in respect of coal. Since under the 1948 Act the lessees, whose leases were granted on and after the commencement of that Act, were liable to pay royalty at 5% under R. 41 of the 1949 Concession Rules, sec. 9 did not make any difference to them as it prescribed the same rate. But so far as lessees under the pre-1949 leases were concerned, the new rate affected them, inasmuch as those who under their leases were paying at a lesser rate became, liable to pay royalty at 5% while those who were paying at a higher rate had to pay at the lower rate of 5% only. Besides, the change in the rate of royalty under Sec. 9, pre- 1949 leases were liable to be modified in respect of the area and the period under sec. 16 and the rules made under secs. 13 and 1820. Even before the new Act was brought into force, consequences of enforcing such uniformity and the resultant automatic spurt in the rate of royalty, especially in respect of coal, had been realised. The Central Government, therefore, itself sponsored the insertion of section 30A by section 2 of the Amendment Act, 15 of 1958, with retrospective effect. The consequences flowing from the attempted uniformity were set out in the Statement of Objects and Reasons (Gazette of India, Extra., Part 2, Sec. 2, Jan. -July 1958, p. 507.) for amending the Act. The statement acknowledged that coal, as the basic fuel, occupied a unique position in the countrys economy and had always, therefore, been treated differently from other minerals. It also acknowledged that operation of secs. 9 and 16 would have "numerous undesirable consequences" such as unsettling coal industry as a whole and retarding the programme of coal production estimated in the Second Five Year Plan on account of the sudden and automatic rise in the royalty payable by lessees, who under their leases granted before October 25, 1949 generally had to pay royalty "much below the rate" prescribed under the Second Schedule. A similar anxiety was also expressed during the passage of the Amendment Bill by the concerned Minister stating that if the automatic enhancement under sec. 9 (1) in the rate of royalty at 5% were to be implemented, the results would be unfortunate. For, besides affecting the rate of production of coal, it would also adversely affect the price structure in other industries, such as cement, steel and other similar industries, and that for that reason "by this Amending Bill that mistake is sought to be rectified." "Instead of giving those increases automatically power will now be taken to phase them in such a way that the upward revision is not pushed up to the maximum limit (i.e. five per cent.) with one jerk, but it is so phased that it does not cause any upset in the coal production programme and in the economy of the country as a whole" (Rajya Sabha Proceedings, dated November 19, 1957). The mischief which the Amending Act, 1958 sought to avoid was thus to prevent enhancement of royalty at one stroke to 5%21. As aforesaid, sec. 30 A suspended the application of secs. 9 (1) and 16 (1) in relation to pre-1949 leases and authorised the Central Government to direct that all or any of the said provisions (including rules made under secs. 13 and 18) shall apply to or in relation to such leases subject to such exceptions and modifications, if any, as may be specified in a notification. As a result of the suspension of Section 9 (1), lessees under pre-1949 leases were relegated to the original position under which they were liable to pay royalty at rates agreed to in those leases whether the rate was over or below 5% provided by sec. 9 (1). As and when the Central Government issued the notification envisaged by the second part, such lessees would be obliged to pay royalty at the rate of 5% as prescribed for the time being in the Second Schedule, and even if the Government were, in the meantime, to enhance the rate as authorised by sec. 9 (3) upto the maximum rate of 20% at such rate but never more than 20%. The second part thus contemplated payment of royalty, on sec. 9 (1) being made applicable, at the most at the rate of 5% only, as no increase had till then been made under sec. 9 (3)24. The notification was issued, as it recites, in exercise of the powers conferred by sec. 30A. That power was to apply, by issuing a notification thereunder, secs. 9 (1) and 16 (1) and the rules made under secs. 13 and 18. The notification in terms directed the application of sec. 9 (1) which meant that on and from December 29, 1961 the company would have to pay royalty as prescribed under that sub-section read with the Second Schedule, that is, at 5% . The notification, however, applied sec. 9 (1) subject to one modification, namely, that lessees under the pre-1949 leases were to pay royalty at the rate provided in their leases or at 2 1/2% whichever was higher. The modification was to the rate applicable under sec. 9 (1) and the Second Schedule, that is, to the rate of 5% . Considering the object with which sec. 30A was enacted, viz., to phase the rate of 5% , and not to impose it at one stroke, the modification could not mean recovery at a rate inconsistent with sec. 9 (1) and the Second Schedule, that is, at the rate higher than 5% provided thereunder25.Such a modification, if it were to be construed as meaning payment at a rate higher than 5% would be in excess of the power under section 30A and also in contravention of the language of sec. 9 (1) and the Second Schedule. A modification, if any, would be for charging royalty at a rate lesser than the one provided under sec. 9 (1) and the Second Schedule, and not at a rate higher than such rate. A construction to the contrary would mean exercise of power in excess of that conferred by the section and would affect the validity of the notification. A literal meaning which the State canvassed for can, therefore, be accepted only at the cost of invalidating the notification26. The rule of construction that a court construing a provision of law must presume that the intention of the authority making it was not to exceed its power and to enact it validly is well-settled. Where, therefore, two constructions are possible, the one which sustains its validity must be preferred. On a plain reading of the notification, however, it is clear that what it meant was thatinstead of the rate flowing from the application of sec. 9(1) and the Second Schedule a modified rate should be applied, that is, "in lieu of the rate of royalty" specified in the Second Schedule, royalty at the agreed rate should be charged if it was lower than 5% , or at 2 1/2% minimum, whichever was higher. The notification, thus, did not empower the State Government to recover royalty at a rate higher than 5% in lieu of the rate chargeable under sec. 9 (1) and the Second Schedule which provided 5% only27. It appears that the State Government itself understood such a construction as proper, for, if it had understood otherwise, it would not have issued its order dated September 23, 1963 directing the Collector to recover royalty at 5% pursuant to the correspondence which had ensued between the company, the Central Government and the State Government. If it had understood the notification in the manner now urged by its counsel, it would have at once pointed out both to the company and the Central Government in that correspondence that it was entitled to recover royalty at the rates agreed to in the lease instead of at 5%. It was only in 1965 that it changed its mind and cancelled its previous order. On the construction placed by us on sec. 30A and the said notification, it was not entitled so to do. The High Court, in our view, was right in quashing that order as also the demand notices issued in pursuance of that order. | 0 | 5,913 | 2,311 | ### 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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(1), lessees under pre-1949 leases were relegated to the original position under which they were liable to pay royalty at rates agreed to in those leases whether the rate was over or below 5% provided by sec. 9 (1). As and when the Central Government issued the notification envisaged by the second part, such lessees would be obliged to pay royalty at the rate of 5% as prescribed for the time being in the Second Schedule, and even if the Government were, in the meantime, to enhance the rate as authorised by sec. 9 (3) upto the maximum rate of 20% at such rate but never more than 20%. The second part thus contemplated payment of royalty, on sec. 9 (1) being made applicable, at the most at the rate of 5% only, as no increase had till then been made under sec. 9 (3). 22. On December 29, 1961, the Central Government "in exercise of the powers conferred by sec. 30A" issued the notification directing that the provisions of sub-sec. (1) of sec. 9 of the said Act shall apply with immediate effect to or in relation to pre-1949 coal mining leases, subject to the modification that such lessees shall pay royalty at the rate specified in the agreements between the lessees and the lessors or at 2 1/2 % of F. O. R. price, whichever was higher, "in lieu of the rate of royalty specified in respect of coal in the Second Schedule to the said Act." 23. The argument urged on behalf of the State both before the High Court and before us was that the notification clearly envisaged payment of royalty at the rate agreed to between the lessor and the lessee or at 2 1/2% whichever was higher. Since, the agreement in the present case provided for royalty at graded rates which were higher than 2 1/2%, the company had to pay royalty at such agreed rates. The argument, in our opinion, is untenable as it is not borne out by the language of the notification itself and of sec. 30A and was therefore rightly repelled by the High Court. 24. The notification was issued, as it recites, in exercise of the powers conferred by sec. 30A. That power was to apply, by issuing a notification thereunder, secs. 9 (1) and 16 (1) and the rules made under secs. 13 and 18. The notification in terms directed the application of sec. 9 (1) which meant that on and from December 29, 1961 the company would have to pay royalty as prescribed under that sub-section read with the Second Schedule, that is, at 5% . The notification, however, applied sec. 9 (1) subject to one modification, namely, that lessees under the pre-1949 leases were to pay royalty at the rate provided in their leases or at 2 1/2% whichever was higher. The modification was to the rate applicable under sec. 9 (1) and the Second Schedule, that is, to the rate of 5% . Considering the object with which sec. 30A was enacted, viz., to phase the rate of 5% , and not to impose it at one stroke, the modification could not mean recovery at a rate inconsistent with sec. 9 (1) and the Second Schedule, that is, at the rate higher than 5% provided thereunder. 25.Such a modification, if it were to be construed as meaning payment at a rate higher than 5% would be in excess of the power under section 30A and also in contravention of the language of sec. 9 (1) and the Second Schedule. A modification, if any, would be for charging royalty at a rate lesser than the one provided under sec. 9 (1) and the Second Schedule, and not at a rate higher than such rate. A construction to the contrary would mean exercise of power in excess of that conferred by the section and would affect the validity of the notification. A literal meaning which the State canvassed for can, therefore, be accepted only at the cost of invalidating the notification. 26. The rule of construction that a court construing a provision of law must presume that the intention of the authority making it was not to exceed its power and to enact it validly is well-settled. Where, therefore, two constructions are possible, the one which sustains its validity must be preferred. On a plain reading of the notification, however, it is clear that what it meant was thatinstead of the rate flowing from the application of sec. 9(1) and the Second Schedule a modified rate should be applied, that is, "in lieu of the rate of royalty" specified in the Second Schedule, royalty at the agreed rate should be charged if it was lower than 5% , or at 2 1/2% minimum, whichever was higher. The notification, thus, did not empower the State Government to recover royalty at a rate higher than 5% in lieu of the rate chargeable under sec. 9 (1) and the Second Schedule which provided 5% only. 27. It appears that the State Government itself understood such a construction as proper, for, if it had understood otherwise, it would not have issued its order dated September 23, 1963 directing the Collector to recover royalty at 5% pursuant to the correspondence which had ensued between the company, the Central Government and the State Government. If it had understood the notification in the manner now urged by its counsel, it would have at once pointed out both to the company and the Central Government in that correspondence that it was entitled to recover royalty at the rates agreed to in the lease instead of at 5%. It was only in 1965 that it changed its mind and cancelled its previous order. On the construction placed by us on sec. 30A and the said notification, it was not entitled so to do. The High Court, in our view, was right in quashing that order as also the demand notices issued in pursuance of that order.
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unfortunate. For, besides affecting the rate of production of coal, it would also adversely affect the price structure in other industries, such as cement, steel and other similar industries, and that for that reason "by this Amending Bill that mistake is sought to be rectified." "Instead of giving those increases automatically power will now be taken to phase them in such a way that the upward revision is not pushed up to the maximum limit (i.e. five per cent.) with one jerk, but it is so phased that it does not cause any upset in the coal production programme and in the economy of the country as a whole" (Rajya Sabha Proceedings, dated November 19, 1957). The mischief which the Amending Act, 1958 sought to avoid was thus to prevent enhancement of royalty at one stroke to 5%21. As aforesaid, sec. 30 A suspended the application of secs. 9 (1) and 16 (1) in relation to pre-1949 leases and authorised the Central Government to direct that all or any of the said provisions (including rules made under secs. 13 and 18) shall apply to or in relation to such leases subject to such exceptions and modifications, if any, as may be specified in a notification. As a result of the suspension of Section 9 (1), lessees under pre-1949 leases were relegated to the original position under which they were liable to pay royalty at rates agreed to in those leases whether the rate was over or below 5% provided by sec. 9 (1). As and when the Central Government issued the notification envisaged by the second part, such lessees would be obliged to pay royalty at the rate of 5% as prescribed for the time being in the Second Schedule, and even if the Government were, in the meantime, to enhance the rate as authorised by sec. 9 (3) upto the maximum rate of 20% at such rate but never more than 20%. The second part thus contemplated payment of royalty, on sec. 9 (1) being made applicable, at the most at the rate of 5% only, as no increase had till then been made under sec. 9 (3)24. The notification was issued, as it recites, in exercise of the powers conferred by sec. 30A. That power was to apply, by issuing a notification thereunder, secs. 9 (1) and 16 (1) and the rules made under secs. 13 and 18. The notification in terms directed the application of sec. 9 (1) which meant that on and from December 29, 1961 the company would have to pay royalty as prescribed under that sub-section read with the Second Schedule, that is, at 5% . The notification, however, applied sec. 9 (1) subject to one modification, namely, that lessees under the pre-1949 leases were to pay royalty at the rate provided in their leases or at 2 1/2% whichever was higher. The modification was to the rate applicable under sec. 9 (1) and the Second Schedule, that is, to the rate of 5% . Considering the object with which sec. 30A was enacted, viz., to phase the rate of 5% , and not to impose it at one stroke, the modification could not mean recovery at a rate inconsistent with sec. 9 (1) and the Second Schedule, that is, at the rate higher than 5% provided thereunder25.Such a modification, if it were to be construed as meaning payment at a rate higher than 5% would be in excess of the power under section 30A and also in contravention of the language of sec. 9 (1) and the Second Schedule. A modification, if any, would be for charging royalty at a rate lesser than the one provided under sec. 9 (1) and the Second Schedule, and not at a rate higher than such rate. A construction to the contrary would mean exercise of power in excess of that conferred by the section and would affect the validity of the notification. A literal meaning which the State canvassed for can, therefore, be accepted only at the cost of invalidating the notification26. The rule of construction that a court construing a provision of law must presume that the intention of the authority making it was not to exceed its power and to enact it validly is well-settled. Where, therefore, two constructions are possible, the one which sustains its validity must be preferred. On a plain reading of the notification, however, it is clear that what it meant was thatinstead of the rate flowing from the application of sec. 9(1) and the Second Schedule a modified rate should be applied, that is, "in lieu of the rate of royalty" specified in the Second Schedule, royalty at the agreed rate should be charged if it was lower than 5% , or at 2 1/2% minimum, whichever was higher. The notification, thus, did not empower the State Government to recover royalty at a rate higher than 5% in lieu of the rate chargeable under sec. 9 (1) and the Second Schedule which provided 5% only27. It appears that the State Government itself understood such a construction as proper, for, if it had understood otherwise, it would not have issued its order dated September 23, 1963 directing the Collector to recover royalty at 5% pursuant to the correspondence which had ensued between the company, the Central Government and the State Government. If it had understood the notification in the manner now urged by its counsel, it would have at once pointed out both to the company and the Central Government in that correspondence that it was entitled to recover royalty at the rates agreed to in the lease instead of at 5%. It was only in 1965 that it changed its mind and cancelled its previous order. On the construction placed by us on sec. 30A and the said notification, it was not entitled so to do. The High Court, in our view, was right in quashing that order as also the demand notices issued in pursuance of that order.
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Commissioner Of Income Taxtamil Nadu-V, Madras Vs. Kotagiri Industrial Co-Operativetea Factory Ltd., Kotagiri | of the earlier years as required under Section 72 of the Act 8. In Distributors (Baroda) (P) Ltd. this Court has dealt with the question whether deduction of income by way of dividends under Section 80-M has to be made from the income computed in accordance with the provisions of the Act, i.e., after deducting interest on monies borrowed for earning such income or from total income of dividends without so deducting the interest amount. In the earlier decision in Cloth Traders (P) Ltd. a three Judge Bench of this Court had held that the deduction required to be allowed under Section 80-M must be calculated with reference to the full amount of dividends received from a domestic company and not with reference to the dividend income as computed in accordance with the provisions of the Act, i.e., after making deduction as provided under the Act. In the said decision in Cloth Traders (P) Ltd. the Court did not notice the earlier decision of a two-Judge Bench of the Court in Cambay Electric Supply Industrial Co. Ltd. v. CIT wherein in the context of Section 80-E it was held that for the purpose of allowing deduction under the said provision it was necessary to first compute the total income of the assessee in accordance with the other provisions of the Act, i.e., in accordance with all the provisions except Section 80-E. The decision in Cloth Traders (P) Ltd. has been overruled by the Constitution Bench in Distributors (Baroda) (P) Ltd. wherein it has been observed : (ITR p. 135 : SCC p. 56, para 15) "... The opening words describe the condition which must be fulfilled in order to attract the applicability of the provision contained in sub-section (1) of Section 80-M. The condition is that the gross total income of the assessee must include income by way of dividends from a domestic company. Gross total income is defined in Section 80-B, clause (5) to mean total income computed in accordance with the provisions of the Act before making any deduction under Chapter VI-A or under Section 280-D. Income by way of dividends from a domestic company included in the gross total income would therefore obviously be income computed in accordance with the provisions of the Act, that is, after deducting interest on monies borrowed for earning such income. If income by way of dividends from a domestic company computed in accordance with the provisions of the Act is included in the gross total income, or in other words forms part of the gross total income, the condition specified in the opening part of sub-section (1) of Section 80-M would be fulfilled and the provision enacted in that sub-section would be attracted." * 9. We are unable to hold that the observations made in the judgment while construing the words "such income by way of dividends" in any way detract from the above-quoted observations inasmuch as this Court has clearly said : (ITR p. 136 : SCC p. 57, para 16) "... It is obvious, as a matter of plain grammar, that the words such income by way of dividends must have reference to the income by way of dividends mentioned earlier and that would be income by way of dividends from a domestic company which is included in the gross total income. Consequently, in order to determine which is such income by way of dividends, we have to ask the question what is the income by way of dividends from a domestic company included in the gross total income and that would obviously be the income by way of dividends computed in accordance with the provisions of the Act." * 10. It may also be pointed out that while considering the provisions of Section 80-T of the Act this Court has followed the decision in Distributors (Baroda) (P) Ltd. in H. H. Sir Rama Varma v. CIT. In that case it has been held that a long-term capital loss brought forward from earlier assessment years had to be first set off against the long-term capital gains of the current assessment year before deduction contemplated by Section 80-T of the Act is allowed and the relief under Section 80-T is to be given only for the amount of long-term capital gains of the current assessment year after the long-term capital loss of the earlier years brought forward is set off11. It is no doubt true that the decision of the Madras High Court in CIT v. Venkatachalam (Mad)) has been affirmed in appeal by this Court in CIT v. Venkatachalam. That decision was also given in the context of Section 80-T of the Act. It has been taken note of by this Court in H. H. Sir Ramu Varma v. CIT. B. P. Jeevan Reddy, J. was a party in both these decisions. In Venkatachalam this Court has emphasised that the deduction under Section 80-T had to be made from out of capital gains and no question would arise of the business loss being set off against the amount of capital gains12. Having regard to the law as laid down by this Court in Distributors (Baroda) (P) Ltd. and H. H. Sir Rama Varma, it must be held that before considering the matter of deduction under Section 80-P(2) the Income Tax Officer had rightly set off the carried-forward losses of the earlier years in accordance with Section 72 of the Act and on finding that the said losses exceeded the income, he rightly did not allow any deduction under Section 80-P(2) and the Appellate Assistant Commissioner as well as the Tribunal and the High Court were in error in taking a contrary view13. The principle of statutory construction invoked by Ms Ramachandran has no application in construing the expression "gross total income" in sub-section (1) of Section 80-P. In view of the express provision defining the said expression in Section 80-B(5) for the purpose of Chapter VI-A, there is no scope for construing the said expression differently in Section 80-P | 1[ds]7. If Section 80-P(1) is read with the definition of the expression "gross total income" contained in Section 80-B(5), it has to be held that for the purpose of making deduction under Section 80-P it is necessary to first determine the gross total income in accordance with the other provisions of the Act. This means that for the purposes of the present case the gross total income must be determined by setting off against the income the business losses of the earlier years as required under Section 72 of theIt may also be pointed out that while considering the provisions of Section 80-T of the Act this Court has followed the decision in Distributors (Baroda) (P) Ltd. in H. H. Sir Rama Varma v. CIT. In that case it has been held that a long-term capital loss brought forward from earlier assessment years had to be first set off against the long-term capital gains of the current assessment year before deduction contemplated by Section 80-T of the Act is allowed and the relief under Section 80-T is to be given only for the amount of long-term capital gains of the current assessment year after the long-term capital loss of the earlier years brought forward is set off11. It is no doubt true that the decision of the Madras High Court in CIT v. Venkatachalam (Mad)) has been affirmed in appeal by this Court in CIT v. Venkatachalam. That decision was also given in the context of Section 80-T of the Act. It has been taken note of by this Court in H. H. Sir Ramu Varma v. CIT. B. P. Jeevan Reddy, J. was a party in both these decisions. In Venkatachalam this Court has emphasised that the deduction under Section 80-T had to be made from out of capital gains and no question would arise of the business loss being set off against the amount of capital gains12. Having regard to the law as laid down by this Court in Distributors (Baroda) (P) Ltd. and H. H. Sir Rama Varma, it must be held that before considering the matter of deduction under Section 80-P(2) the Income Tax Officer had rightly set off the carried-forward losses of the earlier years in accordance with Section 72 of the Act and on finding that the said losses exceeded the income, he rightly did not allow any deduction under Section 80-P(2) and the Appellate Assistant Commissioner as well as the Tribunal and the High Court were in error in taking a contrary view13. The principle of statutory construction invoked by Ms Ramachandran has no application in construing the expression "gross total income" in sub-section (1) of Section 80-P. In view of the express provision defining the said expression in Section 80-B(5) for the purpose of Chapter VI-A, there is no scope for construing the said expression differently in Section 80-P | 1 | 2,112 | 529 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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of the earlier years as required under Section 72 of the Act 8. In Distributors (Baroda) (P) Ltd. this Court has dealt with the question whether deduction of income by way of dividends under Section 80-M has to be made from the income computed in accordance with the provisions of the Act, i.e., after deducting interest on monies borrowed for earning such income or from total income of dividends without so deducting the interest amount. In the earlier decision in Cloth Traders (P) Ltd. a three Judge Bench of this Court had held that the deduction required to be allowed under Section 80-M must be calculated with reference to the full amount of dividends received from a domestic company and not with reference to the dividend income as computed in accordance with the provisions of the Act, i.e., after making deduction as provided under the Act. In the said decision in Cloth Traders (P) Ltd. the Court did not notice the earlier decision of a two-Judge Bench of the Court in Cambay Electric Supply Industrial Co. Ltd. v. CIT wherein in the context of Section 80-E it was held that for the purpose of allowing deduction under the said provision it was necessary to first compute the total income of the assessee in accordance with the other provisions of the Act, i.e., in accordance with all the provisions except Section 80-E. The decision in Cloth Traders (P) Ltd. has been overruled by the Constitution Bench in Distributors (Baroda) (P) Ltd. wherein it has been observed : (ITR p. 135 : SCC p. 56, para 15) "... The opening words describe the condition which must be fulfilled in order to attract the applicability of the provision contained in sub-section (1) of Section 80-M. The condition is that the gross total income of the assessee must include income by way of dividends from a domestic company. Gross total income is defined in Section 80-B, clause (5) to mean total income computed in accordance with the provisions of the Act before making any deduction under Chapter VI-A or under Section 280-D. Income by way of dividends from a domestic company included in the gross total income would therefore obviously be income computed in accordance with the provisions of the Act, that is, after deducting interest on monies borrowed for earning such income. If income by way of dividends from a domestic company computed in accordance with the provisions of the Act is included in the gross total income, or in other words forms part of the gross total income, the condition specified in the opening part of sub-section (1) of Section 80-M would be fulfilled and the provision enacted in that sub-section would be attracted." * 9. We are unable to hold that the observations made in the judgment while construing the words "such income by way of dividends" in any way detract from the above-quoted observations inasmuch as this Court has clearly said : (ITR p. 136 : SCC p. 57, para 16) "... It is obvious, as a matter of plain grammar, that the words such income by way of dividends must have reference to the income by way of dividends mentioned earlier and that would be income by way of dividends from a domestic company which is included in the gross total income. Consequently, in order to determine which is such income by way of dividends, we have to ask the question what is the income by way of dividends from a domestic company included in the gross total income and that would obviously be the income by way of dividends computed in accordance with the provisions of the Act." * 10. It may also be pointed out that while considering the provisions of Section 80-T of the Act this Court has followed the decision in Distributors (Baroda) (P) Ltd. in H. H. Sir Rama Varma v. CIT. In that case it has been held that a long-term capital loss brought forward from earlier assessment years had to be first set off against the long-term capital gains of the current assessment year before deduction contemplated by Section 80-T of the Act is allowed and the relief under Section 80-T is to be given only for the amount of long-term capital gains of the current assessment year after the long-term capital loss of the earlier years brought forward is set off11. It is no doubt true that the decision of the Madras High Court in CIT v. Venkatachalam (Mad)) has been affirmed in appeal by this Court in CIT v. Venkatachalam. That decision was also given in the context of Section 80-T of the Act. It has been taken note of by this Court in H. H. Sir Ramu Varma v. CIT. B. P. Jeevan Reddy, J. was a party in both these decisions. In Venkatachalam this Court has emphasised that the deduction under Section 80-T had to be made from out of capital gains and no question would arise of the business loss being set off against the amount of capital gains12. Having regard to the law as laid down by this Court in Distributors (Baroda) (P) Ltd. and H. H. Sir Rama Varma, it must be held that before considering the matter of deduction under Section 80-P(2) the Income Tax Officer had rightly set off the carried-forward losses of the earlier years in accordance with Section 72 of the Act and on finding that the said losses exceeded the income, he rightly did not allow any deduction under Section 80-P(2) and the Appellate Assistant Commissioner as well as the Tribunal and the High Court were in error in taking a contrary view13. The principle of statutory construction invoked by Ms Ramachandran has no application in construing the expression "gross total income" in sub-section (1) of Section 80-P. In view of the express provision defining the said expression in Section 80-B(5) for the purpose of Chapter VI-A, there is no scope for construing the said expression differently in Section 80-P
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7. If Section 80-P(1) is read with the definition of the expression "gross total income" contained in Section 80-B(5), it has to be held that for the purpose of making deduction under Section 80-P it is necessary to first determine the gross total income in accordance with the other provisions of the Act. This means that for the purposes of the present case the gross total income must be determined by setting off against the income the business losses of the earlier years as required under Section 72 of theIt may also be pointed out that while considering the provisions of Section 80-T of the Act this Court has followed the decision in Distributors (Baroda) (P) Ltd. in H. H. Sir Rama Varma v. CIT. In that case it has been held that a long-term capital loss brought forward from earlier assessment years had to be first set off against the long-term capital gains of the current assessment year before deduction contemplated by Section 80-T of the Act is allowed and the relief under Section 80-T is to be given only for the amount of long-term capital gains of the current assessment year after the long-term capital loss of the earlier years brought forward is set off11. It is no doubt true that the decision of the Madras High Court in CIT v. Venkatachalam (Mad)) has been affirmed in appeal by this Court in CIT v. Venkatachalam. That decision was also given in the context of Section 80-T of the Act. It has been taken note of by this Court in H. H. Sir Ramu Varma v. CIT. B. P. Jeevan Reddy, J. was a party in both these decisions. In Venkatachalam this Court has emphasised that the deduction under Section 80-T had to be made from out of capital gains and no question would arise of the business loss being set off against the amount of capital gains12. Having regard to the law as laid down by this Court in Distributors (Baroda) (P) Ltd. and H. H. Sir Rama Varma, it must be held that before considering the matter of deduction under Section 80-P(2) the Income Tax Officer had rightly set off the carried-forward losses of the earlier years in accordance with Section 72 of the Act and on finding that the said losses exceeded the income, he rightly did not allow any deduction under Section 80-P(2) and the Appellate Assistant Commissioner as well as the Tribunal and the High Court were in error in taking a contrary view13. The principle of statutory construction invoked by Ms Ramachandran has no application in construing the expression "gross total income" in sub-section (1) of Section 80-P. In view of the express provision defining the said expression in Section 80-B(5) for the purpose of Chapter VI-A, there is no scope for construing the said expression differently in Section 80-P
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Srinivasa Reddiar And Others Vs. N. Ramaswamy Reddiar And Another | the meaning of Art. 134-B can with equal justification, be said about introducing words of limitation in the said article which alone can exclude transfers made by the previous manager of the Hindu religious endowment on the basis that the property transferred belonged to him. Therefore, we must deal with the present appeal on the basis that Art. 134-B applies to the facts of the present case.22. Mr. Tatachari then contends that even on the application of Art. 134-B the decision of the High Court is erroneous, because on the facts proved in this case, the High Court should have drawn the legal inference that the transferor had been removed more than 12 years before the suit was filed. He contends that the question as to whether on facts proved in the present case, an inference can be drawn that the previous manager or trustee had been removed, is a mixed question of fact and law and the High Court was in error in reversing the decisions of the Courts below by holding that the title of temple had not been lost by adverse possession before the suit was filed. For deciding this question, it is necessary to refer to some material facts.23. The transferor is Pachaikandaswamiar. The appellants case before the trial Court was that Pachaikandaswamiar had resigned his position about 27 years ago, and that even if Art. 134-B applied, limitation should be held to have commenced from the date when the alien or either resigned his office or was removed from it. In dealing with this aspect of the matter, the learned trial Judge has examined the oral evidence led on behalf of the parties. He assumed that Pachaikandaswamiar and his son were alive at the date of the suit. Even so, he found that they had left the village and had taken no part whatever in the management of the worship of the temple. In fact almost all the properties belonging to the temple had in course of time, been alienated and the alienors were no longer interested either in the temple or in staying in the village itself. Raju Iyer, who was examined as a witness by the appellants, stated that he and Amirthalinga Iyer had been performing the worship of the temple for the past 27 years and he added that the alienor and his son had left the village more than 25 years ago and but for very casual visits to the village, they had never taken any interest in the temple or in the management of its affairs. In fact, Ranga Raju Reddiar, whom the respondents examined, admitted in reply to the questions put by the Court that since 25 years or so neither Pachaikandaswamiar nor Chinnaswami Iyer had performed any pooja in the temple. He substantially corroborated the statement of Raju Iyer that Raju Iyer and Amirthalinga Iyer had been performing the worship of the temple. Another witness, Chandrasekara Iyer by name, whom the respondents examined, also admitted that Pachaikanda had sold away all his properties and had left the village. Besides, when respondents 1 to 3 were appointed as trustees of the temple a notice was issued by the office of Assistant Commissioner for Hindu Religious Endowments, Tiruchirappalli, on the 19th June 1948, in which it was specifically averred that there were no legally constituted trustees for Shri. Pachaikantha Udayavar Temple, Eragudi, and it was mismanaged, and so, it was proposed to appoint legally constituted trustees for the said temple. This notice was served on witness Raju Iyer and Amrithalinga Iyer, Chinnasamy Iyer, and Rangaraja Reddiar who were performing the worship and acting as de facto managers of the temple. It is remarkable that this notice describes Amirthalinga Iyer and Chinnasamy Iyer as de facto trustees of the temple.24. It is on these facts that the learned trial Judge held that the alienor must be deemed to have resigned his office or left it. The lower appellate Court does not appear to have considered or made any specific or clear finding on this aspect of the matter. It, however, held that the transferor and his family had been claiming beneficial interest in the properties all along and that they were not holding the same as managers of the trust. That is why he confirmed the finding of the trial Judge on the question of adverse possession, though on a somewhat different ground.25. The High Court relied on the fact that the alienor is still alive, and so, it thought that the plea of adverse possession could not be sustained. Unfortunately, the question as to whether the facts proved in this case did not show that the alienor had been removed from office by other persons who were in management of the temple de facto, has not been discussed by the High Court.In our opinion, all the facts which have been brought on the record in relation to this aspect of the matter, clearly show not only that the alienor disposed of all the property and left the village, but also that for the last 25 years or so, the management has been taken over by other persons who are acting as de facto managers of the temple. This evidence appears to us to show that the alienors had been removed from management of the temple, and other persons have taken up the position as de facto managers; and this position has lasted for more than 25 years. If that be so, there is no escape from the conclusion that more than 12 years have elapsed since the date of the removal of the previous manager who transferred the properties in question; and so, if a suit were brought by respondents 1 to 3 on the date when they were appointed trustees by respondent No. 4, it would be barred under Art. 134-B. On that view of the matter, we must hold that the trial Judge and the lower appellate Court were right in decreeing the appellants suit in its entirety. | 1[ds]11. The argument is that in cases falling under Art.the transfer made by the manager of a Hindu endowment is challenged by his successor on the ground that it was beyond the authority of the manger; and such a challenge necessarily postulates that the transfer was effected by the manager as manager purporting to deal with the property as belonging to the religious endowment. Where, however, the transfer is made by the manager not as manager, but as an individual, and he deals with the property not on the basis that it belongs to the religious endowment, but on the basis that it belongs to himself, considerations which would govern the application of limitation are substantially different; and in such a case, the transfer being void ab initio the possession of the transferee is adverse from the date of the transfer. That is how Mr. Tatachari has attempted to avoid the application of Art.in the present case. There can be no doubt that if the assumption made by Mr. Tatachari is well founded, the appellants title to the three transactions in question would have to be upheld.Reverting then to the question as to whether a transfer effected by the manager of a temple in regard to properties belonging to the temple falls outside the purview of Art.if it is shown to have been made on the basis that the transferor treated the properties as his own, it does appear that the two earlier Privy Council decisions in Ganasambandas and Damodar Dass cases (1900) 27 Ind App 69 (PC) and 37 Ind App 147 (PC) (supra) lend some support to the contention.It would thus be seen that the observations made by Mr. Justice Mukherjea on which Mr. Tatachari relies, really purport to extend the principle which has apparently been mentioned by the Privy Council in Gnanasambandas case, (1900) 27 Ind App 69 (PC). It does appear that Mr. Justice Mukherjea had expressed this view as a Judge of the Calcutta High Court in the case of Hemanta Kumari v. Sree Ishwar Sridhar Jew, ILR (1946) 2 Cal 38: (AIR 1946 Cal 473 ), and had relied on the two Privy Councils decisions in Gnanasambandas and Damodar Das cases, (1900) 27 Ind App 69 (PC) and 37 Ind App 147 (PC) (supra). In the case of Hemanta Kumari Basu, ILR (1946) 2 Cal 38: (AIR 1946 Cal 473 ) (supra), the attention of Mukherjea, J. was drawn to the fact that in an earlier decision of the Calcutta High Court in Ronald Duncan Cromartic v. Ishwar Radha Damodar Jew, 62 LJ 10, D. N. Mitter, J., had made observations which were inconsistent with the view which Mukherjea, J., was disposed to take; but the learned Judge commented on the said observations by saying that they were open to criticism.18. Thus, on the question raised by Mr. Tatachari before us, there does appear to be some divergence of opinion in the Calcutta High Court itself. No other decision has been cited before us which has accepted the proposition that if any part of the property belonging to a Hindu religious endowment is transferred by its manager, the transfer is void and the possession of the transferee becomes adverse to the endowment from the very beginning. In fact, as we have already indicated, in the case of Gnanasambanda (1900) 27 Ind App 69 (PC) (supra) what had been transferred unauthorisedly was the religious office itself and all the properties appertaining thereto. It is open to doubt whether the said decision could lead to the inference that if a part of the property is transferred by the manager of a religious endowment on the basis that it belongs to him and not to the religious endowment the transfer is void ab initio, with the result that the possession of the transferee is adverse to the religious endowment from the very beginning and the succeeding managers right to challenge the said transfer would be lost if his predecessor who made the transfer lives for more than 12 years after effecting theis not easy to see why the successors right to challenge an unauthorised alienation made by his predecessor should be affected adversely if the alienation is made by his predecessor of the basis that the property belonged to him and not to the religious endowment.20. However, we do not think it necessary to decide this point in the present case, because, in our opinion, the plain words of Art.do not permit such a plea to be raised. Column 1 of Art.provides for suits brought, inter alia, by the manager of a Hindu religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration. The period prescribed for such suit is 12 years, and the time from which the period begins to run is the death, resignation or removal of the transferor.our opinion, such limitation cannot be read in the words used by the said article Articleapplies to all case where it is shown that the immovable property was comprised in the endowment, and that it has been transferred by a previous manager for a valuable consideration. The successor has to prove three facts : (1) that the property belongs to the religious endowment; (2) that it was transferred by a previous manager, and (3) that the transfer was for a valuable consideration. The character of the representations made by the previous manager in regard to his relation with the property which is theof transfer, is irrelevant for the purpose of Art.All transfers made would fall within Art.if the three essential facts are proved by the successor of the transferor manager of the Hindu religious endowment. Therefore, we do not think that Mr. Tatachari is justified in contending that the transfers with which we are concerned in the present appeal fall outside the purview of Art.inasmuch as they are effected by the alienors on the representations that the properties transferred belonged to them as their separate properties. On the findings recorded by the High Court, it is clear that the properties belonged to the temple; that they have been transferred by persons who must be deemed to be the previous managers of the temple; and that they have been transferred for valuable consideration. The present suit has been brought against respondents 1 to 3 who are appointed trustees of the temple by respondent No. 4; and so, all the ingredients prescribed by the first column of Art.are satisfied. That is why we must reject the ingenious argument urged before us by Mr. Tatachari that Art.does not apply to the present case.It is on these facts that the learned trial Judge held that the alienor must be deemed to have resigned his office or left it. The lower appellate Court does not appear to have considered or made any specific or clear finding on this aspect of the matter. It, however, held that the transferor and his family had been claiming beneficial interest in the properties all along and that they were not holding the same as managers of the trust. That is why he confirmed the finding of the trial Judge on the question of adverse possession, though on a somewhat different ground.25. The High Court relied on the fact that the alienor is still alive, and so, it thought that the plea of adverse possession could not be sustained. Unfortunately, the question as to whether the facts proved in this case did not show that the alienor had been removed from office by other persons who were in management of the temple de facto, has not been discussed by the High Court.In our opinion, all the facts which have been brought on the record in relation to this aspect of the matter, clearly show not only that the alienor disposed of all the property and left the village, but also that for the last 25 years or so, the management has been taken over by other persons who are acting as de facto managers of the temple. This evidence appears to us to show that the alienors had been removed from management of the temple, and other persons have taken up the position as de facto managers; and this position has lasted for more than 25 years. If that be so, there is no escape from the conclusion that more than 12 years have elapsed since the date of the removal of the previous manager who transferred the properties in question; and so, if a suit were brought by respondents 1 to 3 on the date when they were appointed trustees by respondent No. 4, it would be barred under Art.On that view of the matter, we must hold that the trial Judge and the lower appellate Court were right in decreeing the appellants suit in its entirety. | 1 | 5,942 | 1,622 | ### Instruction:
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the meaning of Art. 134-B can with equal justification, be said about introducing words of limitation in the said article which alone can exclude transfers made by the previous manager of the Hindu religious endowment on the basis that the property transferred belonged to him. Therefore, we must deal with the present appeal on the basis that Art. 134-B applies to the facts of the present case.22. Mr. Tatachari then contends that even on the application of Art. 134-B the decision of the High Court is erroneous, because on the facts proved in this case, the High Court should have drawn the legal inference that the transferor had been removed more than 12 years before the suit was filed. He contends that the question as to whether on facts proved in the present case, an inference can be drawn that the previous manager or trustee had been removed, is a mixed question of fact and law and the High Court was in error in reversing the decisions of the Courts below by holding that the title of temple had not been lost by adverse possession before the suit was filed. For deciding this question, it is necessary to refer to some material facts.23. The transferor is Pachaikandaswamiar. The appellants case before the trial Court was that Pachaikandaswamiar had resigned his position about 27 years ago, and that even if Art. 134-B applied, limitation should be held to have commenced from the date when the alien or either resigned his office or was removed from it. In dealing with this aspect of the matter, the learned trial Judge has examined the oral evidence led on behalf of the parties. He assumed that Pachaikandaswamiar and his son were alive at the date of the suit. Even so, he found that they had left the village and had taken no part whatever in the management of the worship of the temple. In fact almost all the properties belonging to the temple had in course of time, been alienated and the alienors were no longer interested either in the temple or in staying in the village itself. Raju Iyer, who was examined as a witness by the appellants, stated that he and Amirthalinga Iyer had been performing the worship of the temple for the past 27 years and he added that the alienor and his son had left the village more than 25 years ago and but for very casual visits to the village, they had never taken any interest in the temple or in the management of its affairs. In fact, Ranga Raju Reddiar, whom the respondents examined, admitted in reply to the questions put by the Court that since 25 years or so neither Pachaikandaswamiar nor Chinnaswami Iyer had performed any pooja in the temple. He substantially corroborated the statement of Raju Iyer that Raju Iyer and Amirthalinga Iyer had been performing the worship of the temple. Another witness, Chandrasekara Iyer by name, whom the respondents examined, also admitted that Pachaikanda had sold away all his properties and had left the village. Besides, when respondents 1 to 3 were appointed as trustees of the temple a notice was issued by the office of Assistant Commissioner for Hindu Religious Endowments, Tiruchirappalli, on the 19th June 1948, in which it was specifically averred that there were no legally constituted trustees for Shri. Pachaikantha Udayavar Temple, Eragudi, and it was mismanaged, and so, it was proposed to appoint legally constituted trustees for the said temple. This notice was served on witness Raju Iyer and Amrithalinga Iyer, Chinnasamy Iyer, and Rangaraja Reddiar who were performing the worship and acting as de facto managers of the temple. It is remarkable that this notice describes Amirthalinga Iyer and Chinnasamy Iyer as de facto trustees of the temple.24. It is on these facts that the learned trial Judge held that the alienor must be deemed to have resigned his office or left it. The lower appellate Court does not appear to have considered or made any specific or clear finding on this aspect of the matter. It, however, held that the transferor and his family had been claiming beneficial interest in the properties all along and that they were not holding the same as managers of the trust. That is why he confirmed the finding of the trial Judge on the question of adverse possession, though on a somewhat different ground.25. The High Court relied on the fact that the alienor is still alive, and so, it thought that the plea of adverse possession could not be sustained. Unfortunately, the question as to whether the facts proved in this case did not show that the alienor had been removed from office by other persons who were in management of the temple de facto, has not been discussed by the High Court.In our opinion, all the facts which have been brought on the record in relation to this aspect of the matter, clearly show not only that the alienor disposed of all the property and left the village, but also that for the last 25 years or so, the management has been taken over by other persons who are acting as de facto managers of the temple. This evidence appears to us to show that the alienors had been removed from management of the temple, and other persons have taken up the position as de facto managers; and this position has lasted for more than 25 years. If that be so, there is no escape from the conclusion that more than 12 years have elapsed since the date of the removal of the previous manager who transferred the properties in question; and so, if a suit were brought by respondents 1 to 3 on the date when they were appointed trustees by respondent No. 4, it would be barred under Art. 134-B. On that view of the matter, we must hold that the trial Judge and the lower appellate Court were right in decreeing the appellants suit in its entirety.
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there does appear to be some divergence of opinion in the Calcutta High Court itself. No other decision has been cited before us which has accepted the proposition that if any part of the property belonging to a Hindu religious endowment is transferred by its manager, the transfer is void and the possession of the transferee becomes adverse to the endowment from the very beginning. In fact, as we have already indicated, in the case of Gnanasambanda (1900) 27 Ind App 69 (PC) (supra) what had been transferred unauthorisedly was the religious office itself and all the properties appertaining thereto. It is open to doubt whether the said decision could lead to the inference that if a part of the property is transferred by the manager of a religious endowment on the basis that it belongs to him and not to the religious endowment the transfer is void ab initio, with the result that the possession of the transferee is adverse to the religious endowment from the very beginning and the succeeding managers right to challenge the said transfer would be lost if his predecessor who made the transfer lives for more than 12 years after effecting theis not easy to see why the successors right to challenge an unauthorised alienation made by his predecessor should be affected adversely if the alienation is made by his predecessor of the basis that the property belonged to him and not to the religious endowment.20. However, we do not think it necessary to decide this point in the present case, because, in our opinion, the plain words of Art.do not permit such a plea to be raised. Column 1 of Art.provides for suits brought, inter alia, by the manager of a Hindu religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration. The period prescribed for such suit is 12 years, and the time from which the period begins to run is the death, resignation or removal of the transferor.our opinion, such limitation cannot be read in the words used by the said article Articleapplies to all case where it is shown that the immovable property was comprised in the endowment, and that it has been transferred by a previous manager for a valuable consideration. The successor has to prove three facts : (1) that the property belongs to the religious endowment; (2) that it was transferred by a previous manager, and (3) that the transfer was for a valuable consideration. The character of the representations made by the previous manager in regard to his relation with the property which is theof transfer, is irrelevant for the purpose of Art.All transfers made would fall within Art.if the three essential facts are proved by the successor of the transferor manager of the Hindu religious endowment. Therefore, we do not think that Mr. Tatachari is justified in contending that the transfers with which we are concerned in the present appeal fall outside the purview of Art.inasmuch as they are effected by the alienors on the representations that the properties transferred belonged to them as their separate properties. On the findings recorded by the High Court, it is clear that the properties belonged to the temple; that they have been transferred by persons who must be deemed to be the previous managers of the temple; and that they have been transferred for valuable consideration. The present suit has been brought against respondents 1 to 3 who are appointed trustees of the temple by respondent No. 4; and so, all the ingredients prescribed by the first column of Art.are satisfied. That is why we must reject the ingenious argument urged before us by Mr. Tatachari that Art.does not apply to the present case.It is on these facts that the learned trial Judge held that the alienor must be deemed to have resigned his office or left it. The lower appellate Court does not appear to have considered or made any specific or clear finding on this aspect of the matter. It, however, held that the transferor and his family had been claiming beneficial interest in the properties all along and that they were not holding the same as managers of the trust. That is why he confirmed the finding of the trial Judge on the question of adverse possession, though on a somewhat different ground.25. The High Court relied on the fact that the alienor is still alive, and so, it thought that the plea of adverse possession could not be sustained. Unfortunately, the question as to whether the facts proved in this case did not show that the alienor had been removed from office by other persons who were in management of the temple de facto, has not been discussed by the High Court.In our opinion, all the facts which have been brought on the record in relation to this aspect of the matter, clearly show not only that the alienor disposed of all the property and left the village, but also that for the last 25 years or so, the management has been taken over by other persons who are acting as de facto managers of the temple. This evidence appears to us to show that the alienors had been removed from management of the temple, and other persons have taken up the position as de facto managers; and this position has lasted for more than 25 years. If that be so, there is no escape from the conclusion that more than 12 years have elapsed since the date of the removal of the previous manager who transferred the properties in question; and so, if a suit were brought by respondents 1 to 3 on the date when they were appointed trustees by respondent No. 4, it would be barred under Art.On that view of the matter, we must hold that the trial Judge and the lower appellate Court were right in decreeing the appellants suit in its entirety.
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C.I.T. Bihar & Orissa, Patna Vs. Maharaj Kumar Kaml Singh | estate. After that decision was rendered Section 9 of the Act was amended by incorporating Section 9 (4) which reads: For the purpose of this section - (a) the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. (b) x x x x x. 6. Hence, it is clear that after Section 9 was amended, the income of house property owned by a holder of an impartible estate has to be considered as his individual income. From this it follows that had the assessee not transferred the premises in question in favour of his wife, the income from those premises would have been considered as his individual income under Section 9. Now we have to see whether because of the transfer of the premises in favour of his wife, the said income cannot be considered as the income of the assessee under Section 16 (3) (a) (iii). Section 16 (3) (a) (iii) reads: In computing the total income of any individual for the purpose of assessment, there shall be included - (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly - (i) x x x x x (ii) x x x x x (iii) from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart; or (iv) x x x x x (b) x x x x x 7. There is no dispute that the transfer with which we are concerned is a direct transfer. Further it is admitted that the transfer in question was not effected for any consideration adequate or otherwise; nor was it effected in connection with an agreement to live apart. But the assessees contention was, which contention was accepted by the High Court that S. 9 (4) (a) only deems the income of a house property included in an impartible estate as the individual income of the holder and that only for the purpose of Section 9 and not for any other purpose. In other words, it was urged that section raises a legal fiction and that legal fiction is limited for the purpose of Section 9. It was further urged that a legal fiction cannot be extended beyond the purpose for which it was created. Counsel for the assessee urged that the fiction incorporated in Section 9 (4) (a) can be taken into consideration only for the purpose of Section 9 and not for the purpose of Section 16 (3). This contention appears to us to be fallacious. 8. Section 6 of the Act sets out the various heads of income, profits and gains chargeable to income-tax. They are (i) salaries, (ii) interest on securities; (iii) Income from property, (iv) Profits and Gains of business, profession or vocation; (v) Income from other sources and (vi) Capital gains. Section 3 read with S. 4 brings to tax the total income, profits and gains of an assessee from whatever source it might have been received or accrued. The total income is defined in Section 2 (xv) as meaning total amount of income, profits and gains referred to in sub-section (1) of Section 4 computed in the manner laid down in the Act. 9. Section 9 deals with only one head of income. Prior to the transfer by the assessee, he, in law would have been considered as the owner of those premises for purposes of ascertaining his income from house property and that income would have been taken into account in computing his total income. In other words, in ascertaining the total income of the assessee for the purpose of assessment that income also would have entered into the calculation. Hence when Section 9 (4) (a) speaks for the purpose of this section it really means for the purpose of determining the taxable income of the assessee. It must be remembered that an assessee is not separately taxed under each head of income. Hence when a source of income is transferred by the assessee to his wife, excepting for the two purposes mentioned in Section 16 (3) (a) (iii), income from that source has to be considered as the income of the assessee because an asset of the assessee stands transferred to his wife. Such a conclusion does not amount to extending the fiction created under Section 9 beyond the purpose for which it is created. It merely gives effect to that fiction. It is true that a legal fiction should not be extended beyond the purpose for which it is created but that does not mean that the Court should not give effect to that fiction. 10. Section 27 (ii) of the Income-tax Act, 1961 which has taken the place of Section 9 (4) of the Act does not begin by saying for the purpose of this section. On the other hand, it says that the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. It was contended on behalf of the assessee that this is a change in the law and on that basis we were asked to accept the assessees construction of Section 9 (4) (a). We are unable to accept this contention. We do not think that there is any change in the law. Section 27 (ii) of the Income-tax Act, 1961 makes explicit what was implicit in the provision as it originally stood. 11. In view of our conclusion that the income of the house property in question should be included in the total income of the assessee, it follows as a necessary corollary that the annual value of the assessees residential house to be computed at 10% of the total income to the assessee which income as already held includes the income from the house properties transferred to his wife as required by the 1st proviso to Section 9 (2). | 1[ds]7. There is no dispute that the transfer with which we are concerned is a direct transfer. Further it is admitted that the transfer in question was not effected for any consideration adequate or otherwise; nor was it effected in connection with an agreement to live apart8. Section 6 of the Act sets out the various heads of income, profits and gains chargeable to income-tax. They are (i) salaries, (ii) interest on securities; (iii) Income from property, (iv) Profits and Gains of business, profession or vocation; (v) Income from other sources and (vi) Capital gains. Section 3 read with S. 4 brings to tax the total income, profits and gains of an assessee from whatever source it might have been received or accrued. The total income is defined in Section 2 (xv) as meaning total amount of income, profits and gains referred to in sub-section (1) of Section 4 computed in the manner laid down in the Act9. Section 9 deals with only one head of income. Prior to the transfer by the assessee, he, in law would have been considered as the owner of those premises for purposes of ascertaining his income from house property and that income would have been taken into account in computing his total income. In other words, in ascertaining the total income of the assessee for the purpose of assessment that income also would have entered into the calculation. Hence when Section 9 (4) (a) speaks for the purpose of this section it really means for the purpose of determining the taxable income of the assessee. It must be remembered that an assessee is not separately taxed under each head of income. Hence when a source of income is transferred by the assessee to his wife, excepting for the two purposes mentioned in Section 16 (3) (a) (iii), income from that source has to be considered as the income of the assessee because an asset of the assessee stands transferred to his wife. Such a conclusion does not amount to extending the fiction created under Section 9 beyond the purpose for which it is created. It merely gives effect to that fiction. It is true that a legal fiction should not be extended beyond the purpose for which it is created but that does not mean that the Court should not give effect to that fiction10. Section 27 (ii) of the Income-tax Act, 1961 which has taken the place of Section 9 (4) of the Act does not begin by saying for the purpose of this section. On the other hand, it says that the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. It was contended on behalf of the assessee that this is a change in the law and on that basis we were asked to accept the assessees construction of Section 9 (4) (a). We are unable to accept this contention. We do not think that there is any change in the law. Section 27 (ii) of the Income-tax Act, 1961 makes explicit what was implicit in the provision as it originally stood11. In view of our conclusion that the income of the house property in question should be included in the total income of the assessee, it follows as a necessary corollary that the annual value of the assessees residential house to be computed at 10% of the total income to the assessee which income as already held includes the income from the house properties transferred to his wife as required by the 1st proviso to Section 9 (2). | 1 | 2,238 | 685 | ### Instruction:
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estate. After that decision was rendered Section 9 of the Act was amended by incorporating Section 9 (4) which reads: For the purpose of this section - (a) the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. (b) x x x x x. 6. Hence, it is clear that after Section 9 was amended, the income of house property owned by a holder of an impartible estate has to be considered as his individual income. From this it follows that had the assessee not transferred the premises in question in favour of his wife, the income from those premises would have been considered as his individual income under Section 9. Now we have to see whether because of the transfer of the premises in favour of his wife, the said income cannot be considered as the income of the assessee under Section 16 (3) (a) (iii). Section 16 (3) (a) (iii) reads: In computing the total income of any individual for the purpose of assessment, there shall be included - (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly - (i) x x x x x (ii) x x x x x (iii) from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart; or (iv) x x x x x (b) x x x x x 7. There is no dispute that the transfer with which we are concerned is a direct transfer. Further it is admitted that the transfer in question was not effected for any consideration adequate or otherwise; nor was it effected in connection with an agreement to live apart. But the assessees contention was, which contention was accepted by the High Court that S. 9 (4) (a) only deems the income of a house property included in an impartible estate as the individual income of the holder and that only for the purpose of Section 9 and not for any other purpose. In other words, it was urged that section raises a legal fiction and that legal fiction is limited for the purpose of Section 9. It was further urged that a legal fiction cannot be extended beyond the purpose for which it was created. Counsel for the assessee urged that the fiction incorporated in Section 9 (4) (a) can be taken into consideration only for the purpose of Section 9 and not for the purpose of Section 16 (3). This contention appears to us to be fallacious. 8. Section 6 of the Act sets out the various heads of income, profits and gains chargeable to income-tax. They are (i) salaries, (ii) interest on securities; (iii) Income from property, (iv) Profits and Gains of business, profession or vocation; (v) Income from other sources and (vi) Capital gains. Section 3 read with S. 4 brings to tax the total income, profits and gains of an assessee from whatever source it might have been received or accrued. The total income is defined in Section 2 (xv) as meaning total amount of income, profits and gains referred to in sub-section (1) of Section 4 computed in the manner laid down in the Act. 9. Section 9 deals with only one head of income. Prior to the transfer by the assessee, he, in law would have been considered as the owner of those premises for purposes of ascertaining his income from house property and that income would have been taken into account in computing his total income. In other words, in ascertaining the total income of the assessee for the purpose of assessment that income also would have entered into the calculation. Hence when Section 9 (4) (a) speaks for the purpose of this section it really means for the purpose of determining the taxable income of the assessee. It must be remembered that an assessee is not separately taxed under each head of income. Hence when a source of income is transferred by the assessee to his wife, excepting for the two purposes mentioned in Section 16 (3) (a) (iii), income from that source has to be considered as the income of the assessee because an asset of the assessee stands transferred to his wife. Such a conclusion does not amount to extending the fiction created under Section 9 beyond the purpose for which it is created. It merely gives effect to that fiction. It is true that a legal fiction should not be extended beyond the purpose for which it is created but that does not mean that the Court should not give effect to that fiction. 10. Section 27 (ii) of the Income-tax Act, 1961 which has taken the place of Section 9 (4) of the Act does not begin by saying for the purpose of this section. On the other hand, it says that the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. It was contended on behalf of the assessee that this is a change in the law and on that basis we were asked to accept the assessees construction of Section 9 (4) (a). We are unable to accept this contention. We do not think that there is any change in the law. Section 27 (ii) of the Income-tax Act, 1961 makes explicit what was implicit in the provision as it originally stood. 11. In view of our conclusion that the income of the house property in question should be included in the total income of the assessee, it follows as a necessary corollary that the annual value of the assessees residential house to be computed at 10% of the total income to the assessee which income as already held includes the income from the house properties transferred to his wife as required by the 1st proviso to Section 9 (2).
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7. There is no dispute that the transfer with which we are concerned is a direct transfer. Further it is admitted that the transfer in question was not effected for any consideration adequate or otherwise; nor was it effected in connection with an agreement to live apart8. Section 6 of the Act sets out the various heads of income, profits and gains chargeable to income-tax. They are (i) salaries, (ii) interest on securities; (iii) Income from property, (iv) Profits and Gains of business, profession or vocation; (v) Income from other sources and (vi) Capital gains. Section 3 read with S. 4 brings to tax the total income, profits and gains of an assessee from whatever source it might have been received or accrued. The total income is defined in Section 2 (xv) as meaning total amount of income, profits and gains referred to in sub-section (1) of Section 4 computed in the manner laid down in the Act9. Section 9 deals with only one head of income. Prior to the transfer by the assessee, he, in law would have been considered as the owner of those premises for purposes of ascertaining his income from house property and that income would have been taken into account in computing his total income. In other words, in ascertaining the total income of the assessee for the purpose of assessment that income also would have entered into the calculation. Hence when Section 9 (4) (a) speaks for the purpose of this section it really means for the purpose of determining the taxable income of the assessee. It must be remembered that an assessee is not separately taxed under each head of income. Hence when a source of income is transferred by the assessee to his wife, excepting for the two purposes mentioned in Section 16 (3) (a) (iii), income from that source has to be considered as the income of the assessee because an asset of the assessee stands transferred to his wife. Such a conclusion does not amount to extending the fiction created under Section 9 beyond the purpose for which it is created. It merely gives effect to that fiction. It is true that a legal fiction should not be extended beyond the purpose for which it is created but that does not mean that the Court should not give effect to that fiction10. Section 27 (ii) of the Income-tax Act, 1961 which has taken the place of Section 9 (4) of the Act does not begin by saying for the purpose of this section. On the other hand, it says that the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. It was contended on behalf of the assessee that this is a change in the law and on that basis we were asked to accept the assessees construction of Section 9 (4) (a). We are unable to accept this contention. We do not think that there is any change in the law. Section 27 (ii) of the Income-tax Act, 1961 makes explicit what was implicit in the provision as it originally stood11. In view of our conclusion that the income of the house property in question should be included in the total income of the assessee, it follows as a necessary corollary that the annual value of the assessees residential house to be computed at 10% of the total income to the assessee which income as already held includes the income from the house properties transferred to his wife as required by the 1st proviso to Section 9 (2).
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Pesumal Dhanmal Vs. New Asiatic Insurance- Company, Limited & Others | and if it cannot be permitted to do so in the case of the owner of the car, it cannot certainly be. asserted that it can be permitted to do so in the case of any other class of drivers in respect of whom the policy covers the risk, in both cases by reason of S. 96(3).11. The learned Judge says in his judgment: "If the defendant had been one of the persona insured by the Policy issued by the Petitioners............Sub-Section (3) of S.96 might have prevented them from having recourse to those conditions ,...." With respect, it may be that the Policy was issued to Aswani but as a driver of the vehicle, the defendant has been insured by the respondent. If the defendant had not got a car of his own end did not hold air indemnity in respect or such a car it could not have been said that the respondent had not insured the defendant. The Section itself distinguishes between the "person to whom policy is issued" and "persons insured" End the defendant falls in the latter class me learned Judge further en says mat Section 95 does not require that the policy must extend w other drivers.It must be noted that S.94 refers to the persons to be insured and S.95 refers to the liability required to be covered. Both "enable the insurer to extend the indemnity to other driver and if the indemnity is so extended the case falls within S.96(1) and the Company becomes liable and Section 95(1)(b) is not relevant except for determining whether the indemnity under the policy tails within the ambit of that Section.The contention that the defences available to the insurer control the terms of the policy is also unsound. It does not affect the question of liability. Under Section 96(3) requirements for its applicability are that (1) a certificate must have been issued to the person who has effected the insurance, and (2) restrictions of the insurance of the persons insured other than those in clause (b) of Sub-Section (2) of S.96. As we have pointed OUT, the defendant is one of the class of persons insured and avoidance cause being not one of the conditions in cl. 103 of S.96(2) Section 96(3) applies.12. It was strenuously urged by Mr. Advani on behalf of his client that the scheme of Ss. 94, 95 and 96 was rot to require the insurance of any particular class of persons in connection with the vehicle causing me accident but if there was an insurance which indemnified either the rarer or the driver against liability irrespective of the vehicle, then the conditions of trig Section were satisfied. To accept this argument would require our substituting for the word "the" appearing in the words "use of the vehicle in a public place" in clause (b) of Section 95(1) the word "A" or "any". We have not been pointed out either from the scheme of the Chapter or any part of the Motor vehicles Act anything which could persuade us to do such violence to the language of the statute. Reasonably and fairly read, Sections 94 and 95 mean that the owner and the person who drives the car have to be insured in respect of the vehicle by the use of which accident or death occurs. We cannot, therefore, be justified in reading the Section as contended for by Advani.13. Mr. Advani relied upon the view taken by the English Courts under Sections 35, 36 and 38 of the Road Traffic Act, 1930. The view is mat the extension in connection with a driver of a vehicle is qualified by a permissible provision requiring that the permitted Driver does not himself hold a personal insurance policy, it is sufficient in this connection to point out that though Ss. 33 and 36 of the English Act so far as relevant are almost in similar terms is Ss. 94 and 95 of our Motor vehicles Act, S.38 is materially different from S. 96(3) of our Act. S.38 of the English Act renders ineffective any condition in a policy providing for the avoiding of the liability in the event of specified thing being dons or omitted to be done after the happening of the event giving rise to a claim under the policy in connection with the claims as are mentioned in paragraph (b) of Sub-Section (1) of S.36, which is entirety different from saying that no condition which is not one of those in S.96(2)(b) shall be elective in displacing the liability under S.95(1). In our opinion, the view of the British courts as aforesaid can, therefore, be of no assistance in the interpretation of the relevant provisions of the Indian statute.14. Lastly it is argued, which is almost an argument of dispair, that the appeal by the defendant is incompetent It is contended that the notice was got issued by the plaintiff on the respondent company which was discharged by the order of the learned Judge, that the defendant could not in any way be said to be affected in ms rights by the discharge of that notice and that, therefore, he had no right to appeal. In this connection it is necessary to refer to the defendants affidavit in answer to the Chamber Summons taken out by the respondent, in answer to a contention on behalf of the respondent, in paragraph 7 he denied that the defendant was not entitled to an indemnity from the respondent or that he was not included within the class or persons insured by it. He claimed to reader both the respondent company as also his own Insurance Company liable for any Decree or judgment that might be passed against him. Since to discharge the notice as against the respondent Company would render his position very insecure in relation to the ultimate decree, it must be held that he is a Person who is aggrieved by the order made by the learned Judge and, therefore, entitled to appeal. | 0[ds]We may advisedly call this clause theclause it is clear from this clause that if under S. 96 of the Motor Vehicles Act the respondent company is liable to the plaintiffs then nothing contained in the policy will relieve it of its liability.In order to consider the liability of the insurance Companies, one has to consider the scheme of Chapter VIII of the Motor Vehicles Act and particularly that of Sections 94, 95 and 95. Heading of the Chapter is "insurance of Motor Vehicles". S. 94 makes it an offence for any person who uses a vehicle except as a passenger or who causes or allows any other person to use a motor vehicle in a public place unless there is in force in relation to the use of the vehicle by that person or That other person a policy of insurance which complies with the requirements of that Chapter. By the very language the Section requires that there must be an insurance policy in relation to the vehicle which is being used and not that a driver is insured against claims for damages in respect of anyused or unused. S. 95 which lays down the requirements of the policy, by clause (b) of(1), requires that the policy must insure the person or classes of persons against any liability which may be incurred by them in respect of death or bodily injury to any person caused by or arising out of the use of we vehicle in a public place.Again, the emphasis is on the use of the vehicle and not en the use of any vehicle.(2) provides the nature of the liability that is required to be covered by the Insurance Policy.(5) of S. 95 creates an absolute liability in the insurer to indemnify the persons insured in respect of the liability covered by the policy notwithstanding anything contained anywhere in any law. S. 96 makes the insurer liable on judgment as if he were aif recovered against the insured or against the class of persons insured by the policy in respect of liability covered by S. 95(1)(b) on certain conditions being satisfied.(2) of S. 96 lays flown the conditions for such liability and also enumerates the defences which are open to the insurer to take if it brings itself on record as a defendant in pursuance of a notice to be issued under the earlier part of(2).7. Reading the Sections together it is dear that the insurance is required by S. 95(1) to be in respect of the vehicle which is being used and while driving which the accident is committed. Mere insurance of the driver or a vehicle without reference to the use of any particular vehicle against claims made against him by reason of an accident that he may commit does not, in our opinion, make the insurer liable directly to the person who has suffered the injury. The liability of the insurer arises only it has insured the driver in respect of the vehicle by the use or which the accident is committed. That being so. inasmuch as the policy issued by the Indian. Trade and General Insurance Co. Ltd. by clause (4) insured the defendant not in respect of the vehicle which was involved in the accident but in respect of another vehicle it would not be covered by S. 95(1) and consequently by S. 96(1), and that company would not be affected by the notice issued under(2) of Section 96. The statutory liability under Section 96, in our opinion, attaches only to the respondent company.Thus, the respondent Company being liable under S. 96 theclause applies notwithstanding me avoidance clause contained in the proviso to clause 3 of the policy. It is possible that as between the respondent and the appellant deferent, the latter may be liable to repay any sum which the respondent Company may be required to pay to the pontiffs in these suits. That, however, is not a matter to be decided in the present proceeding and we do not express any opinion on thatis clear from the wording of this clause that any condition restricting or avoiding the statutory liability of the insurer as provided in clause (1) of(1) of Section 95 which is not one of the conditions specified in clause (b) of Section 95(2) must be regarded as interactive for the purposes of the Act, though it may be binding between the company and the persons insured. Now, the only conditions mentioned in clause (b) of(2) of S. 96 are three : (i) that which excludes the use of the vehicle for hire or reward if the policy does not cover the risk and use for organised racing or speed testing; in the case of public service a purpose not permitted by the permit; (ii) that which excludes driving by a names person or persons or by any person who is not duly licences or by a disqualified person during the period of disqualification; (iii) that which excludes liability for injury which is caused by or is contributed to by conditions of war, not or civil commotion. It cannot be gainsaid that the avoidance clause in the policy in the present case is not covered by any of these conditions and that is net even me contention of the respondent Company, since that clause seeks to avoid a liability covered by Section 95(1)(b). It is ineffective, so far as the plaintiffs areare afraid, wd cannot accept this condition for the obvious reason that thequestion provides a condition "other than those in cl. (b) of(2) of Sec. 96." in order to accept the argument we will have to substitute different words for the words actually used in the provision for which there is nomay, however, answer it by an analogy that no Insurance Company is bound to insure any owner of a motor vehicle. It an owner drives a motor vehicle which is not insured, he is liable to penalty but in the nature of things, no insurance company can be made liable. That, however, is not themust be noted that S.94 refers to the persons to be insured and S.95 refers to the liability required to be covered. Both "enable the insurer to extend the indemnity to other driver and if the indemnity is so extended the case falls within S.96(1) and the Company becomes liable and Section 95(1)(b) is not relevant except for determining whether the indemnity under the policy tails within the ambit of that Section.The contention that the defences available to the insurer control the terms of the policy is also unsound. It does not affect the question of liability. Under Section 96(3) requirements for its applicability are that (1) a certificate must have been issued to the person who has effected the insurance, and (2) restrictions of the insurance of the persons insured other than those in clause (b) of(2) of S.96. As we have pointed OUT, the defendant is one of the class of persons insured and avoidance cause being not one of the conditions in cl. 103 of S.96(2) Section 96(3)accept this argument would require our substituting for the word "the" appearing in the words "use of the vehicle in a public place" in clause (b) of Section 95(1) the word "A" or "any". We have not been pointed out either from the scheme of the Chapter or any part of the Motor vehicles Act anything which could persuade us to do such violence to the language of the statute. Reasonably and fairly read, Sections 94 and 95 mean that the owner and the person who drives the car have to be insured in respect of the vehicle by the use of which accident or death occurs. We cannot, therefore, be justified in reading the Section as contended for byview is mat the extension in connection with a driver of a vehicle is qualified by a permissible provision requiring that the permitted Driver does not himself hold a personal insurance policy, it is sufficient in this connection to point out that though Ss. 33 and 36 of the English Act so far as relevant are almost in similar terms is Ss. 94 and 95 of our Motor vehicles Act, S.38 is materially different from S. 96(3) of our Act. S.38 of the English Act renders ineffective any condition in a policy providing for the avoiding of the liability in the event of specified thing being dons or omitted to be done after the happening of the event giving rise to a claim under the policy in connection with the claims as are mentioned in paragraph (b) of(1) of S.36, which is entirety different from saying that no condition which is not one of those in S.96(2)(b) shall be elective in displacing the liability under S.95(1). In our opinion, the view of the British courts as aforesaid can, therefore, be of no assistance in the interpretation of the relevant provisions of the Indianthis connection it is necessary to refer to the defendants affidavit in answer to the Chamber Summons taken out by the respondent, in answer to a contention on behalf of the respondent, in paragraph 7 he denied that the defendant was not entitled to an indemnity from the respondent or that he was not included within the class or persons insured by it. He claimed to reader both the respondent company as also his own Insurance Company liable for any Decree or judgment that might be passed against him. Since to discharge the notice as against the respondent Company would render his position very insecure in relation to the ultimate decree, it must be held that he is a Person who is aggrieved by the order made by the learned Judge and, therefore, entitled to appeal. | 0 | 3,499 | 1,850 | ### Instruction:
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and if it cannot be permitted to do so in the case of the owner of the car, it cannot certainly be. asserted that it can be permitted to do so in the case of any other class of drivers in respect of whom the policy covers the risk, in both cases by reason of S. 96(3).11. The learned Judge says in his judgment: "If the defendant had been one of the persona insured by the Policy issued by the Petitioners............Sub-Section (3) of S.96 might have prevented them from having recourse to those conditions ,...." With respect, it may be that the Policy was issued to Aswani but as a driver of the vehicle, the defendant has been insured by the respondent. If the defendant had not got a car of his own end did not hold air indemnity in respect or such a car it could not have been said that the respondent had not insured the defendant. The Section itself distinguishes between the "person to whom policy is issued" and "persons insured" End the defendant falls in the latter class me learned Judge further en says mat Section 95 does not require that the policy must extend w other drivers.It must be noted that S.94 refers to the persons to be insured and S.95 refers to the liability required to be covered. Both "enable the insurer to extend the indemnity to other driver and if the indemnity is so extended the case falls within S.96(1) and the Company becomes liable and Section 95(1)(b) is not relevant except for determining whether the indemnity under the policy tails within the ambit of that Section.The contention that the defences available to the insurer control the terms of the policy is also unsound. It does not affect the question of liability. Under Section 96(3) requirements for its applicability are that (1) a certificate must have been issued to the person who has effected the insurance, and (2) restrictions of the insurance of the persons insured other than those in clause (b) of Sub-Section (2) of S.96. As we have pointed OUT, the defendant is one of the class of persons insured and avoidance cause being not one of the conditions in cl. 103 of S.96(2) Section 96(3) applies.12. It was strenuously urged by Mr. Advani on behalf of his client that the scheme of Ss. 94, 95 and 96 was rot to require the insurance of any particular class of persons in connection with the vehicle causing me accident but if there was an insurance which indemnified either the rarer or the driver against liability irrespective of the vehicle, then the conditions of trig Section were satisfied. To accept this argument would require our substituting for the word "the" appearing in the words "use of the vehicle in a public place" in clause (b) of Section 95(1) the word "A" or "any". We have not been pointed out either from the scheme of the Chapter or any part of the Motor vehicles Act anything which could persuade us to do such violence to the language of the statute. Reasonably and fairly read, Sections 94 and 95 mean that the owner and the person who drives the car have to be insured in respect of the vehicle by the use of which accident or death occurs. We cannot, therefore, be justified in reading the Section as contended for by Advani.13. Mr. Advani relied upon the view taken by the English Courts under Sections 35, 36 and 38 of the Road Traffic Act, 1930. The view is mat the extension in connection with a driver of a vehicle is qualified by a permissible provision requiring that the permitted Driver does not himself hold a personal insurance policy, it is sufficient in this connection to point out that though Ss. 33 and 36 of the English Act so far as relevant are almost in similar terms is Ss. 94 and 95 of our Motor vehicles Act, S.38 is materially different from S. 96(3) of our Act. S.38 of the English Act renders ineffective any condition in a policy providing for the avoiding of the liability in the event of specified thing being dons or omitted to be done after the happening of the event giving rise to a claim under the policy in connection with the claims as are mentioned in paragraph (b) of Sub-Section (1) of S.36, which is entirety different from saying that no condition which is not one of those in S.96(2)(b) shall be elective in displacing the liability under S.95(1). In our opinion, the view of the British courts as aforesaid can, therefore, be of no assistance in the interpretation of the relevant provisions of the Indian statute.14. Lastly it is argued, which is almost an argument of dispair, that the appeal by the defendant is incompetent It is contended that the notice was got issued by the plaintiff on the respondent company which was discharged by the order of the learned Judge, that the defendant could not in any way be said to be affected in ms rights by the discharge of that notice and that, therefore, he had no right to appeal. In this connection it is necessary to refer to the defendants affidavit in answer to the Chamber Summons taken out by the respondent, in answer to a contention on behalf of the respondent, in paragraph 7 he denied that the defendant was not entitled to an indemnity from the respondent or that he was not included within the class or persons insured by it. He claimed to reader both the respondent company as also his own Insurance Company liable for any Decree or judgment that might be passed against him. Since to discharge the notice as against the respondent Company would render his position very insecure in relation to the ultimate decree, it must be held that he is a Person who is aggrieved by the order made by the learned Judge and, therefore, entitled to appeal.
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the appellant deferent, the latter may be liable to repay any sum which the respondent Company may be required to pay to the pontiffs in these suits. That, however, is not a matter to be decided in the present proceeding and we do not express any opinion on thatis clear from the wording of this clause that any condition restricting or avoiding the statutory liability of the insurer as provided in clause (1) of(1) of Section 95 which is not one of the conditions specified in clause (b) of Section 95(2) must be regarded as interactive for the purposes of the Act, though it may be binding between the company and the persons insured. Now, the only conditions mentioned in clause (b) of(2) of S. 96 are three : (i) that which excludes the use of the vehicle for hire or reward if the policy does not cover the risk and use for organised racing or speed testing; in the case of public service a purpose not permitted by the permit; (ii) that which excludes driving by a names person or persons or by any person who is not duly licences or by a disqualified person during the period of disqualification; (iii) that which excludes liability for injury which is caused by or is contributed to by conditions of war, not or civil commotion. It cannot be gainsaid that the avoidance clause in the policy in the present case is not covered by any of these conditions and that is net even me contention of the respondent Company, since that clause seeks to avoid a liability covered by Section 95(1)(b). It is ineffective, so far as the plaintiffs areare afraid, wd cannot accept this condition for the obvious reason that thequestion provides a condition "other than those in cl. (b) of(2) of Sec. 96." in order to accept the argument we will have to substitute different words for the words actually used in the provision for which there is nomay, however, answer it by an analogy that no Insurance Company is bound to insure any owner of a motor vehicle. It an owner drives a motor vehicle which is not insured, he is liable to penalty but in the nature of things, no insurance company can be made liable. That, however, is not themust be noted that S.94 refers to the persons to be insured and S.95 refers to the liability required to be covered. Both "enable the insurer to extend the indemnity to other driver and if the indemnity is so extended the case falls within S.96(1) and the Company becomes liable and Section 95(1)(b) is not relevant except for determining whether the indemnity under the policy tails within the ambit of that Section.The contention that the defences available to the insurer control the terms of the policy is also unsound. It does not affect the question of liability. Under Section 96(3) requirements for its applicability are that (1) a certificate must have been issued to the person who has effected the insurance, and (2) restrictions of the insurance of the persons insured other than those in clause (b) of(2) of S.96. As we have pointed OUT, the defendant is one of the class of persons insured and avoidance cause being not one of the conditions in cl. 103 of S.96(2) Section 96(3)accept this argument would require our substituting for the word "the" appearing in the words "use of the vehicle in a public place" in clause (b) of Section 95(1) the word "A" or "any". We have not been pointed out either from the scheme of the Chapter or any part of the Motor vehicles Act anything which could persuade us to do such violence to the language of the statute. Reasonably and fairly read, Sections 94 and 95 mean that the owner and the person who drives the car have to be insured in respect of the vehicle by the use of which accident or death occurs. We cannot, therefore, be justified in reading the Section as contended for byview is mat the extension in connection with a driver of a vehicle is qualified by a permissible provision requiring that the permitted Driver does not himself hold a personal insurance policy, it is sufficient in this connection to point out that though Ss. 33 and 36 of the English Act so far as relevant are almost in similar terms is Ss. 94 and 95 of our Motor vehicles Act, S.38 is materially different from S. 96(3) of our Act. S.38 of the English Act renders ineffective any condition in a policy providing for the avoiding of the liability in the event of specified thing being dons or omitted to be done after the happening of the event giving rise to a claim under the policy in connection with the claims as are mentioned in paragraph (b) of(1) of S.36, which is entirety different from saying that no condition which is not one of those in S.96(2)(b) shall be elective in displacing the liability under S.95(1). In our opinion, the view of the British courts as aforesaid can, therefore, be of no assistance in the interpretation of the relevant provisions of the Indianthis connection it is necessary to refer to the defendants affidavit in answer to the Chamber Summons taken out by the respondent, in answer to a contention on behalf of the respondent, in paragraph 7 he denied that the defendant was not entitled to an indemnity from the respondent or that he was not included within the class or persons insured by it. He claimed to reader both the respondent company as also his own Insurance Company liable for any Decree or judgment that might be passed against him. Since to discharge the notice as against the respondent Company would render his position very insecure in relation to the ultimate decree, it must be held that he is a Person who is aggrieved by the order made by the learned Judge and, therefore, entitled to appeal.
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SEETHAKATHI TRUST MADRAS Vs. KRISHNAVENI | Court: 18. On the other hand learned senior counsel for the respondent claimed that the Respondent and her daughter are quite old and do not have the wherewithal to pursue litigation. The litigation has been pending since 1961. It was urged that the appellant had title only to 70 acres of land and has trespassed into 0.08 cents of the land, which blocked the entrance to respondents land. Thus, though the suit pertains only to a smaller extent of land it affected the enjoyment by the respondent of their possession over larger extent of the land. 19. Learned counsel urged that the trial court and the lower court had overlooked crucial and vital evidence and, thus, the High Court rightly exercised jurisdiction under Section 100 of the said Act. There was no question of impleading the appellant or the prior purchasers as parties as no issue had been framed in the suit in respect thereof. The presumption under Section 114(e) of the Evidence Act must arise and the appellant Trust was aware of the execution proceedings as some of the persons belonging to the appellant Trust are stated to have obstructed the Surveyors entry when he went to demarcate the land as well as by the interim and final reports of the surveyor. The Trust never questioned the same at the time and cannot question it now. Conclusion: 20. We have given our thought to the aforesaid aspect. 21. We find that there are more than one infirmities which make it impossible for us to uphold the view taken by the High Court upsetting the concurrent findings of the courts below. 22. The first aspect to be taken note of is that the question of law ought to have been framed under Section 100 of the said Code. Even if the question of law had not been framed at the stage of admission, at least before the deciding the case the said question of law ought to have been framed. We may refer usefully to the judicial view in this behalf in Surat Singh (Dead) v. Siri Bhagwan and Ors. (2018) 4 SCC 562, wherein this Court has held that: 29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5). 23. There is undoubtedly an element of dispute with respect to possession raised by the two parties qua their respective 50 acres. Insofar as 70 acres of land is concerned that undisputedly vests with the Appellant. The dispute sought to be raised by the Respondent does not pertain to 50 acres but only to 0.08 cents, a fraction of an acre (0.08 per cent of an acre). It may, however, be noticed that according to the Respondent the small area is important for the enjoyment purposes. 24. In our view, it is not necessary to go into the issue of adverse possession as both parties are claiming title. The crucial aspect is the decree obtained for specific performance by the Respondent and the manner of obtaining the decree. The Respondent was fully aware of the prior registered transaction in respect of the same property originally in favour of Niraja Devi. This is as per the deposition of her manager. In such a scenario it is not possible for us to accept that a decree could have been obtained behind the back of a bona fide purchaser, more so when the transaction had taken place prior to the institution of the suit for specific performance. Suffice to say that this view would find support from the judgments in Vidyadhar v. Manikrao (supra) and Man Kaur v. Hartar Singh Sangha (supra). 25. The second vital aspect insofar as the case of the Respondent is concerned is that the Respondent did not even step into the witness box to depose to the facts. It is the manager who stepped into the witness box that too without producing any proper authorisation. What he deposed in a way ran contrary to the interest of the Respondent as it was accepted that there was knowledge of the transaction with respect to the same land between third parties and yet the Respondent chose not to implead the purchasers as parties to the suit. Thus, the endeavour was to obtain a decree at the back of the real owners and that is the reason, at least, in the execution proceedings that the original vendor did not even come forward and the sale deed had to be executed through the process of the Court. The case of Niraja Devi and the subsequent purchasers including the Appellant would fall within the exception set out in Section 19(b) of the Specific Relief Act, being transferees who had paid money in good faith and without notice of the original contract. There are also some question marks over the manner in which the possession is alleged to have been transferred although we are not required to go into that aspect, as we are concerned with only 0.08 cents of land. 26. We are, thus, unequivocally of the view that for all the aforesaid reasons, the High Court ought not to have interfered with the concurrent findings of the trial court and the first appellate court. | 0[ds]21. We find that there are more than one infirmities which make it impossible for us to uphold the view taken by the High Court upsetting the concurrent findings of the courts below.22. The first aspect to be taken note of is that the question of law ought to have been framed under Section 100 of the said Code. Even if the question of law had not been framed at the stage of admission, at least before the deciding the case the said question of law ought to have been framed. We may refer usefully to the judicial view in this behalf in Surat Singh (Dead) v. Siri Bhagwan and Ors. (2018) 4 SCC 562, wherein this Court has held that:29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).23. There is undoubtedly an element of dispute with respect to possession raised by the two parties qua their respective 50 acres. Insofar as 70 acres of land is concerned that undisputedly vests with the Appellant. The dispute sought to be raised by the Respondent does not pertain to 50 acres but only to 0.08 cents, a fraction of an acre (0.08 per cent of an acre). It may, however, be noticed that according to the Respondent the small area is important for the enjoyment purposes.24. In our view, it is not necessary to go into the issue of adverse possession as both parties are claiming title. The crucial aspect is the decree obtained for specific performance by the Respondent and the manner of obtaining the decree. The Respondent was fully aware of the prior registered transaction in respect of the same property originally in favour of Niraja Devi. This is as per the deposition of her manager. In such a scenario it is not possible for us to accept that a decree could have been obtained behind the back of a bona fide purchaser, more so when the transaction had taken place prior to the institution of the suit for specific performance. Suffice to say that this view would find support from the judgments in Vidyadhar v. Manikrao (supra) and Man Kaur v. Hartar Singh Sangha (supra).25. The second vital aspect insofar as the case of the Respondent is concerned is that the Respondent did not even step into the witness box to depose to the facts. It is the manager who stepped into the witness box that too without producing any proper authorisation. What he deposed in a way ran contrary to the interest of the Respondent as it was accepted that there was knowledge of the transaction with respect to the same land between third parties and yet the Respondent chose not to implead the purchasers as parties to the suit. Thus, the endeavour was to obtain a decree at the back of the real owners and that is the reason, at least, in the execution proceedings that the original vendor did not even come forward and the sale deed had to be executed through the process of the Court. The case of Niraja Devi and the subsequent purchasers including the Appellant would fall within the exception set out in Section 19(b) of the Specific Relief Act, being transferees who had paid money in good faith and without notice of the original contract. There are also some question marks over the manner in which the possession is alleged to have been transferred although we are not required to go into that aspect, as we are concerned with only 0.08 cents of land.26. We are, thus, unequivocally of the view that for all the aforesaid reasons, the High Court ought not to have interfered with the concurrent findings of the trial court and the first appellate court. | 0 | 3,653 | 839 | ### 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:
Court: 18. On the other hand learned senior counsel for the respondent claimed that the Respondent and her daughter are quite old and do not have the wherewithal to pursue litigation. The litigation has been pending since 1961. It was urged that the appellant had title only to 70 acres of land and has trespassed into 0.08 cents of the land, which blocked the entrance to respondents land. Thus, though the suit pertains only to a smaller extent of land it affected the enjoyment by the respondent of their possession over larger extent of the land. 19. Learned counsel urged that the trial court and the lower court had overlooked crucial and vital evidence and, thus, the High Court rightly exercised jurisdiction under Section 100 of the said Act. There was no question of impleading the appellant or the prior purchasers as parties as no issue had been framed in the suit in respect thereof. The presumption under Section 114(e) of the Evidence Act must arise and the appellant Trust was aware of the execution proceedings as some of the persons belonging to the appellant Trust are stated to have obstructed the Surveyors entry when he went to demarcate the land as well as by the interim and final reports of the surveyor. The Trust never questioned the same at the time and cannot question it now. Conclusion: 20. We have given our thought to the aforesaid aspect. 21. We find that there are more than one infirmities which make it impossible for us to uphold the view taken by the High Court upsetting the concurrent findings of the courts below. 22. The first aspect to be taken note of is that the question of law ought to have been framed under Section 100 of the said Code. Even if the question of law had not been framed at the stage of admission, at least before the deciding the case the said question of law ought to have been framed. We may refer usefully to the judicial view in this behalf in Surat Singh (Dead) v. Siri Bhagwan and Ors. (2018) 4 SCC 562, wherein this Court has held that: 29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5). 23. There is undoubtedly an element of dispute with respect to possession raised by the two parties qua their respective 50 acres. Insofar as 70 acres of land is concerned that undisputedly vests with the Appellant. The dispute sought to be raised by the Respondent does not pertain to 50 acres but only to 0.08 cents, a fraction of an acre (0.08 per cent of an acre). It may, however, be noticed that according to the Respondent the small area is important for the enjoyment purposes. 24. In our view, it is not necessary to go into the issue of adverse possession as both parties are claiming title. The crucial aspect is the decree obtained for specific performance by the Respondent and the manner of obtaining the decree. The Respondent was fully aware of the prior registered transaction in respect of the same property originally in favour of Niraja Devi. This is as per the deposition of her manager. In such a scenario it is not possible for us to accept that a decree could have been obtained behind the back of a bona fide purchaser, more so when the transaction had taken place prior to the institution of the suit for specific performance. Suffice to say that this view would find support from the judgments in Vidyadhar v. Manikrao (supra) and Man Kaur v. Hartar Singh Sangha (supra). 25. The second vital aspect insofar as the case of the Respondent is concerned is that the Respondent did not even step into the witness box to depose to the facts. It is the manager who stepped into the witness box that too without producing any proper authorisation. What he deposed in a way ran contrary to the interest of the Respondent as it was accepted that there was knowledge of the transaction with respect to the same land between third parties and yet the Respondent chose not to implead the purchasers as parties to the suit. Thus, the endeavour was to obtain a decree at the back of the real owners and that is the reason, at least, in the execution proceedings that the original vendor did not even come forward and the sale deed had to be executed through the process of the Court. The case of Niraja Devi and the subsequent purchasers including the Appellant would fall within the exception set out in Section 19(b) of the Specific Relief Act, being transferees who had paid money in good faith and without notice of the original contract. There are also some question marks over the manner in which the possession is alleged to have been transferred although we are not required to go into that aspect, as we are concerned with only 0.08 cents of land. 26. We are, thus, unequivocally of the view that for all the aforesaid reasons, the High Court ought not to have interfered with the concurrent findings of the trial court and the first appellate court.
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### Explanation:
21. We find that there are more than one infirmities which make it impossible for us to uphold the view taken by the High Court upsetting the concurrent findings of the courts below.22. The first aspect to be taken note of is that the question of law ought to have been framed under Section 100 of the said Code. Even if the question of law had not been framed at the stage of admission, at least before the deciding the case the said question of law ought to have been framed. We may refer usefully to the judicial view in this behalf in Surat Singh (Dead) v. Siri Bhagwan and Ors. (2018) 4 SCC 562, wherein this Court has held that:29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).23. There is undoubtedly an element of dispute with respect to possession raised by the two parties qua their respective 50 acres. Insofar as 70 acres of land is concerned that undisputedly vests with the Appellant. The dispute sought to be raised by the Respondent does not pertain to 50 acres but only to 0.08 cents, a fraction of an acre (0.08 per cent of an acre). It may, however, be noticed that according to the Respondent the small area is important for the enjoyment purposes.24. In our view, it is not necessary to go into the issue of adverse possession as both parties are claiming title. The crucial aspect is the decree obtained for specific performance by the Respondent and the manner of obtaining the decree. The Respondent was fully aware of the prior registered transaction in respect of the same property originally in favour of Niraja Devi. This is as per the deposition of her manager. In such a scenario it is not possible for us to accept that a decree could have been obtained behind the back of a bona fide purchaser, more so when the transaction had taken place prior to the institution of the suit for specific performance. Suffice to say that this view would find support from the judgments in Vidyadhar v. Manikrao (supra) and Man Kaur v. Hartar Singh Sangha (supra).25. The second vital aspect insofar as the case of the Respondent is concerned is that the Respondent did not even step into the witness box to depose to the facts. It is the manager who stepped into the witness box that too without producing any proper authorisation. What he deposed in a way ran contrary to the interest of the Respondent as it was accepted that there was knowledge of the transaction with respect to the same land between third parties and yet the Respondent chose not to implead the purchasers as parties to the suit. Thus, the endeavour was to obtain a decree at the back of the real owners and that is the reason, at least, in the execution proceedings that the original vendor did not even come forward and the sale deed had to be executed through the process of the Court. The case of Niraja Devi and the subsequent purchasers including the Appellant would fall within the exception set out in Section 19(b) of the Specific Relief Act, being transferees who had paid money in good faith and without notice of the original contract. There are also some question marks over the manner in which the possession is alleged to have been transferred although we are not required to go into that aspect, as we are concerned with only 0.08 cents of land.26. We are, thus, unequivocally of the view that for all the aforesaid reasons, the High Court ought not to have interfered with the concurrent findings of the trial court and the first appellate court.
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Commissioner of Income Tax, Bombay North, Kutch & Saurashtra Vs. Patel & Co | In regard to the assessment year 1950-51, what was sought to be registered was the partnership firm of Patel and Co., which came into existence under the Deed of Partnership dated 12th July, 1949. This firm consisted of two Partners, Nanji Kalidas Mehta and Arjun Kunverjee Patel, the partners having 0-15-0 and 0-1-0 shares respectively in the profit and loss of the partnership. The Deed of Partnership was signed by both these partners and the application for registration made to the Income Tax Officer was also signed by them. This firm was also registered by the Income Tax Officer by his order dated the 6th June, 1951 on the very same grounds which were mentioned in regard to the firm which had been brought into existence by the Deed dated the 6th February, 1948.4. The Commissioner of Income Tax, Bombay North, Kutch and Saurashtra cancelled both these registrations holding that the Deeds of partnership were not signed by all the partners and the firms could not therefore be registered. The firm thereupon appealed to the Tribunal against the said order of the Commissioner and the Tribunal by its consolidated order dated the 18th April, 1953 affirmed the order of the Commissioner cancelling the registration in so far as assessment year 1949-50 was concerned and reversed the order of the Commissioner cancelling the registration for the assessment year 1950-51 and granted registration for the said assessment year commencing from 1-7-1949 and ending on 31-12-1949. As regards the period of 1st January, 1949 to 30th June, 1949 registration was thus refused.5. At the instance of the firm the Tribunal stated the case and raised and referred the following questions of law to the High Court under section 108 (1) of the Saurashtra Income Tax Ordinance, and under section 66 (1) of the Indian Income Tax Act for its decision namely :-"(1) Whether on the true interpretation of the Deed of Partnership dated 6-2-1948 the partners were :-(i) Smaller Patel and Co.(ii) Sheth and Co.(iii) Maharshi Dayanand Maha VidyalayaOR(i) Arjun Kunverjee Patel(ii) Jamnadas Bhanji Patel(iii) Nanji Kalidas Mehta.2. Whether the firm Patel and Co., was entitled in law to be registered for the year 1949-50 under the Saurashtra Income Tax Ordinance and the rules made thereunder.3. Whether the registration granted by the Appellate Tribunal for the year 1950-51 should be for the entire year of account, namely 1949 or for the period from 1-7-1949 to 31-12-1949.".6. The said reference was heard by the High Court and Judgment was delivered on the 18th October, 1955 whereby the High Court answered the first referred question by stating that Smaller Patel and Co., Shethe and Co., and Maharshi Dayanand Maha Vidyalaya were partners of the firm constituted by the Deed of Partnership dated the 6th February, 1948, answered the second referred question in the affirmative and answered the third referred question by stating that the registration for 1950-51 should be for the entire year of account namely, 1949. The Commissioner applied for a certificate for leave to appeal to this Court and the High Court of Saurashtra by its order dated the 5th July, 1956 gave the requisite certificate under section 66A (2) of the Indian Income tax Act. By the time this certificate came to be granted our decision in Dulichand Lakshminarayan v. Commr. of Income Tax, Nagpur, reported in 1956 SCR 154: ((S) AIR 1956 SC 354 ), had been pronounced and the High Court therefore realised that its decision against which the application for certificate for leave had been filed could no longer be regarded as good law and granted the said certificate.7. We are concerned in this with the registration of the firm for the assessment years 1949-50 and 1950-51. As regards the assessment year 1949-50 Shri Kolah had urged a preliminary objection in regard to the maintainability of the appeal.He has urged that there was no provision under the Saurashtra Income Tax Ordinance, 1949 under which any certificate for leave to appeal could be granted. It is true that the Judgment of the High Court under appeal was pronounced on the 18th October, 1955 that is long after the Constitution came into force. This, however, could not avail of the appellant because the questions of law which were referred for the decision of the High Court were in the exercise of its advisory or consultative jurisdiction and the provisions of the Constitution in regard to the certificate for leave to appeal to this Court could not therefore in terms apply.Shri Rajagopala Sastri realised the force of this contention and fairly enough conceded that the appeal for assessment year 1949-50 could not be maintained. The appeal in so far as it concerned the assessment year 1949-50 will therefore be dismissed.8. In regard to the assessment year 1950-51, the only grievance of the appellant was that the High Court had directed the registration of the firm for the entire year of account namely, 1949.It was urged on behalf of the appellant that this registration should have been confined only to the period between 1-7-49 and 31-12-49. Shri Kolah on behalf of the respondent stated before us that he was not pressing for maintenance of the order made by the High Court in this behalf and was willing that the registration should be confined only to the period between 1-7-49 and 31-12-49. We are of the opinion that this is a fair attitude to take up as the Deed of Partnership of the firm came into existence only on the 12th July, 1949 and under the terms thereof the Partnership commenced with effect from 1-7-49. That being the position the appeal so far as the assessment year 1950-51 is concerned will be allowed and the direction given by the High Court will be modified in that the registration of the firm will be operative for the period between 1-7-49 and 31-12-49. The appeal will, therefore, be allowed partially to the extent mentioned above and the order of the High Court will be varied accordingly. | 1[ds]We are of the opinion that this is a fair attitude to take up as the Deed of Partnership of the firm came into existence only on the 12th July, 1949 and under the terms thereof the Partnership commenced with effect fromThat being the position the appeal so far as the assessment yearis concerned will be allowed and the direction given by the High Court will be modified in that the registration of the firm will be operative for the period between9. The appeal will, therefore, be allowed partially to the extent mentioned above and the order of the High Court will be variedappeal in so far as it concerned the assessment yearwill therefore be dismissed. | 1 | 1,398 | 125 | ### 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:
In regard to the assessment year 1950-51, what was sought to be registered was the partnership firm of Patel and Co., which came into existence under the Deed of Partnership dated 12th July, 1949. This firm consisted of two Partners, Nanji Kalidas Mehta and Arjun Kunverjee Patel, the partners having 0-15-0 and 0-1-0 shares respectively in the profit and loss of the partnership. The Deed of Partnership was signed by both these partners and the application for registration made to the Income Tax Officer was also signed by them. This firm was also registered by the Income Tax Officer by his order dated the 6th June, 1951 on the very same grounds which were mentioned in regard to the firm which had been brought into existence by the Deed dated the 6th February, 1948.4. The Commissioner of Income Tax, Bombay North, Kutch and Saurashtra cancelled both these registrations holding that the Deeds of partnership were not signed by all the partners and the firms could not therefore be registered. The firm thereupon appealed to the Tribunal against the said order of the Commissioner and the Tribunal by its consolidated order dated the 18th April, 1953 affirmed the order of the Commissioner cancelling the registration in so far as assessment year 1949-50 was concerned and reversed the order of the Commissioner cancelling the registration for the assessment year 1950-51 and granted registration for the said assessment year commencing from 1-7-1949 and ending on 31-12-1949. As regards the period of 1st January, 1949 to 30th June, 1949 registration was thus refused.5. At the instance of the firm the Tribunal stated the case and raised and referred the following questions of law to the High Court under section 108 (1) of the Saurashtra Income Tax Ordinance, and under section 66 (1) of the Indian Income Tax Act for its decision namely :-"(1) Whether on the true interpretation of the Deed of Partnership dated 6-2-1948 the partners were :-(i) Smaller Patel and Co.(ii) Sheth and Co.(iii) Maharshi Dayanand Maha VidyalayaOR(i) Arjun Kunverjee Patel(ii) Jamnadas Bhanji Patel(iii) Nanji Kalidas Mehta.2. Whether the firm Patel and Co., was entitled in law to be registered for the year 1949-50 under the Saurashtra Income Tax Ordinance and the rules made thereunder.3. Whether the registration granted by the Appellate Tribunal for the year 1950-51 should be for the entire year of account, namely 1949 or for the period from 1-7-1949 to 31-12-1949.".6. The said reference was heard by the High Court and Judgment was delivered on the 18th October, 1955 whereby the High Court answered the first referred question by stating that Smaller Patel and Co., Shethe and Co., and Maharshi Dayanand Maha Vidyalaya were partners of the firm constituted by the Deed of Partnership dated the 6th February, 1948, answered the second referred question in the affirmative and answered the third referred question by stating that the registration for 1950-51 should be for the entire year of account namely, 1949. The Commissioner applied for a certificate for leave to appeal to this Court and the High Court of Saurashtra by its order dated the 5th July, 1956 gave the requisite certificate under section 66A (2) of the Indian Income tax Act. By the time this certificate came to be granted our decision in Dulichand Lakshminarayan v. Commr. of Income Tax, Nagpur, reported in 1956 SCR 154: ((S) AIR 1956 SC 354 ), had been pronounced and the High Court therefore realised that its decision against which the application for certificate for leave had been filed could no longer be regarded as good law and granted the said certificate.7. We are concerned in this with the registration of the firm for the assessment years 1949-50 and 1950-51. As regards the assessment year 1949-50 Shri Kolah had urged a preliminary objection in regard to the maintainability of the appeal.He has urged that there was no provision under the Saurashtra Income Tax Ordinance, 1949 under which any certificate for leave to appeal could be granted. It is true that the Judgment of the High Court under appeal was pronounced on the 18th October, 1955 that is long after the Constitution came into force. This, however, could not avail of the appellant because the questions of law which were referred for the decision of the High Court were in the exercise of its advisory or consultative jurisdiction and the provisions of the Constitution in regard to the certificate for leave to appeal to this Court could not therefore in terms apply.Shri Rajagopala Sastri realised the force of this contention and fairly enough conceded that the appeal for assessment year 1949-50 could not be maintained. The appeal in so far as it concerned the assessment year 1949-50 will therefore be dismissed.8. In regard to the assessment year 1950-51, the only grievance of the appellant was that the High Court had directed the registration of the firm for the entire year of account namely, 1949.It was urged on behalf of the appellant that this registration should have been confined only to the period between 1-7-49 and 31-12-49. Shri Kolah on behalf of the respondent stated before us that he was not pressing for maintenance of the order made by the High Court in this behalf and was willing that the registration should be confined only to the period between 1-7-49 and 31-12-49. We are of the opinion that this is a fair attitude to take up as the Deed of Partnership of the firm came into existence only on the 12th July, 1949 and under the terms thereof the Partnership commenced with effect from 1-7-49. That being the position the appeal so far as the assessment year 1950-51 is concerned will be allowed and the direction given by the High Court will be modified in that the registration of the firm will be operative for the period between 1-7-49 and 31-12-49. The appeal will, therefore, be allowed partially to the extent mentioned above and the order of the High Court will be varied accordingly.
### Response:
1
### Explanation:
We are of the opinion that this is a fair attitude to take up as the Deed of Partnership of the firm came into existence only on the 12th July, 1949 and under the terms thereof the Partnership commenced with effect fromThat being the position the appeal so far as the assessment yearis concerned will be allowed and the direction given by the High Court will be modified in that the registration of the firm will be operative for the period between9. The appeal will, therefore, be allowed partially to the extent mentioned above and the order of the High Court will be variedappeal in so far as it concerned the assessment yearwill therefore be dismissed.
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National Securities Depository Ltd Vs. Securities and Exchange Board of India | securities market.Explanation.--For the removal of doubts, it is hereby declared that the power to issue directions under this Section shall include and always be deemed to have been included the power to direct any person, who made profit or averted loss by indulging in any transaction or activity in contravention of the provisions of this Act or Regulations made thereunder, to disgorge an amount equivalent to the wrongful gain made or loss averted by such contravention.11D. Cease and desist proceedings. If the Board finds, after causing an inquiry to be made, that any person has violated, or is likely to violate, any provisions of this Act, or any Rules or Regulations made thereunder, it may pass an order requiring such person to cease and desist from committing or causing such violation: Provided that the Board shall not pass such order in respect of any listed public company or a public company (other than the intermediaries specified Under Section 12) which intends to get its securities listed on any recognised stock exchange unless the Board has reasonable grounds to believe that such company has indulged in insider trading or market manipulation.12. Registration of stock brokers, sub-brokers, share transfer agents, etc.(3) The Board may, by order, suspend or cancel a certificate of registration in such manner as may be determined by Regulations:Provided that no order under this Sub-section shall be made unless the person concerned has been given a reasonable opportunity of being heard.15-I. Power to adjudicate. (1) For the purpose of adjudging Under Sections 15A, 15B, 15C, 15D, 15E, 15F, 15G [15H, 15HA and 15HB, the Board shall appoint any officer not below the rank of a Division Chief to be an adjudicating officer for holding an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any penalty.(2) While holding an inquiry the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject-matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the Sections specified in Sub-section (1), he may impose such penalty as he thinks fit in accordance with the provisions of any of those sections.(3) The Board may call for and examine the record of any proceedings under this Section and if it considers that the order passed by the adjudicating officer is erroneous to the extent it is not in the interests of the securities market, it may, after making or causing to be made such inquiry as it deems necessary, pass an order enhancing the quantum of penalty, if the circumstances of the case so justify:Provided that no such order shall be passed unless the person concerned has been given an opportunity of being heard in the matter:Provided further that nothing contained in this Sub-section shall be applicable after an expiry of a period of three months from the date of the order passed by the adjudicating officer or disposal of the appeal Under Section 15T, whichever is earlier.22. Administrative functions of the Board are broadly referable to Section 11 (1) of the Act, which states as follows:11. Functions of Board. (1) Subject to the provisions of this Act, it shall be the duty of the Board to protect the interests of investors in securities and to promote the development of, and to regulate the securities market, by such measures as it thinks fit.23. Legislative functions, namely that of making of Regulations is referable to Section 30 of the Act which reads as follows:30. Power to make Regulations. (1) The Board may, by notification, make Regulations consistent with this Act and the Rules made thereunder to carry out the purposes of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such Regulations may provide for all or any of the following matters, namely:(a) the times and places of meetings of the Board and the procedure to be followed at such meetings under Sub-section (1) of Section 7 including quorum necessary for the transaction of business;(b) the terms and other conditions of service of officers and employees of the Board under Sub-section (2) of Section 9;(c) the matters relating to issue of capital, transfer of securities and other matters incidental thereto and the manner in which such matters shall be disclosed by the companies Under Section 11 A;(ca) the utilisation of the amount credited under Sub-section (5) of Section 11;(cb) the fulfilment of other conditions relating to collective investment scheme under Sub-section (2A) of Section 11AA;(d) the conditions subject to which certificate of registration is to be issued, the amount of fee to be paid for certificate of registration and the manner of suspension or cancellation of certificate of registration Under Section 12;(da) the terms determined by the Board for settlement of proceedings under Sub-section (2) and the procedure for conducting of settlement proceedings under Sub-section (3) of Section 15JB;(db) any other matter which is required to be, or may be, specified by Regulations or in respect of which provision is to be made by Regulations.24. It may be stated that both Rules made Under Section 29 as well as Regulations made Under Section 30 have to be placed before Parliament Under Section 31 of the Act. It is clear on a conspectus of the authorities that it is orders referable to Sections 11(4), 11(b), 11(d), 12(3) and 15-I of the Act, being quasi-judicial orders, and quasi judicial orders made under the Rules and Regulations that are the subject matter of appeal Under Section 15T. Administrative orders such as circulars issued under the present case referable to Section 11(1) of the Act are obviously outside the appellate jurisdiction of the Tribunal for the reasons given by us above. | 1[ds]This Section appears in Chapter VIB inserted by an amendment Act of 1995. It is interesting to note that Under Section 15M, a person shall not be qualified for appointment as the Presiding Officer of the three member Appellate Tribunal unless he is a sitting or retired Judge of the Supreme Court, or a sitting or retired Chief Justice of a High Court, or is a sitting or retired Judge of a High Court who has completed not less than 7 years of service as a Judge in a High Court. This is one indicia of the fact that the Appellate Tribunal, being manned by a member of the higher judiciary, is intended to hear appeals only against quasi-judicial orders14. Similarly, in Indian National Congress (I) v. Institute of Social Welfare and Ors. [(2002) 5 SCC 685] , this Court held that the exercise of powers Under Section 29A of the Representation of the People Act, 1951 by the Election Commission is a quasi-judicial power. After referring to R. v. Electricity Commissioner (supra) and Province of Bombay v. Kushaldas S. Advani (supra), this Court laid down:The legal principles laying down when an act of a statutory authority would be a quasi-judicial act, which emerge from the aforestated decisions are these:Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicialApplying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi-judicial authority if it is required to act judicially. [paras 24 and 25]It can be seen from the aforesaid decision that in addition to the tests already laid down, the absence of a lis between the parties would not necessarily lead to the conclusion that the power conferred on an administrative body would not be quasi-judicial-so long as the aforesaid three tests are followed, the power is quasi-judicial17. We now come to two judgments of this Court under Acts which deal with expert bodies like SEBI. In PTC India Ltd. v. Central Electricity Regulatory Commission [(2010) 4 SCC 603] , this Court had to construe various Sections of the Electricity Act, 2003, and ultimately came to the conclusion that the Appellate Tribunal for Electricity has no jurisdiction to decide the validity of Regulations framed under the Central Electricity Regulatory Commission Under Section 178 of the Electricity Act, 2003. The validity of the Regulations may, however, be challenged by seeking judicial review Under Article 226 of the Constitution of India18. In so stating, a summary of findings is given in paragraph 92 of the said judgment. Sub-paras (iii), (iv), and (v) are important from our point of view, and it is stated as follows:(iii) A Regulation Under Section 178 is made under the authority of delegated legislation and consequently its validity can be tested only in judicial review proceedings before the courts and not by way of appeal before the Appellate Tribunal for Electricity Under Section 111 of the said Act(iv) Section 121 of the 2003 Act does not confer power of judicial review on the Appellate Tribunal. The words "orders", "instructions" or "directions" in Section 121 do not confer power of judicial review in the Appellate Tribunal for Electricity. In this judgment, we do not wish to analyse the English authorities as we find from those authorities that in certain cases in England the power of judicial review is expressly conferred on the tribunals constituted under the Act. In the present 2003 Act, the power of judicial review of the validity of the Regulations made Under Section 178 is not conferred on the Appellate Tribunal for Electricity(v) If a dispute arises in adjudication on interpretation of a Regulation made Under Section 178, an appeal would certainly lie before the Appellate Tribunal Under Section 111, however, no appeal to the Appellate Tribunal shall lie on the validity of a Regulation made Under Section 178." [para 92]19. This judgment was followed in Bharat Sanchar Nigam Ltd. v. Telecom Regulatory Authority of India and Ors. [(2014) 3 SCC 222] . The Telecom Authority of India Act, 1997 had been amended in the year 2000 to take away from the expert body under the Act, viz. TRAI, all quasi-judicial functions. Post amendment, the question posed before this Court was whether TDSAT, viz. the Appellate Tribunal had in exercise of powers Under Section 14(b) of the TRAI Act, the jurisdiction to entertain a challenge to Regulations framed by TRAI Under Section 36 of the TRAI Act. This Court referred in detail to the PTC India judgment (supra) and ultimately held that TDSAT does not have such jurisdiction, Regulations being framed by TRAI Under Section 36 of the TRAI Act being legislative in nature20. A judgment of this Court dealing with the very Act we are dealing with is reported as Clariant International Ltd. and Anr. v. Securities & Exchange Board of India [(2004) 8 SCC 524] . In our view certain observations made in this judgment almost conclude the matters raised in this appeal. While discussing the effect of the Board being an expert body, this Court in paragraph 71 stated -The Board is indisputably an expert body. But when it exercises its quasi-judicial functions, its decisions are subject to appeal. The Appellate Tribunal is also an expert TribunalIn paragraph 77 this Court further went on to state -The Board exercises its legislative power by making Regulations, executive power by administering the Regulations framed by it and taking action against any entity violating these Regulations and judicial power by adjudicating disputes in the implementation thereof. The only check upon exercise of such wide-ranging powers is that it must comply with the Constitution and the Act. In that view of the matter, where an expert Tribunal has been constituted, the scrutiny at its end must be held to be of wide import. The Tribunal, another expert body, must, thus, be allowed to exercise its own jurisdiction conferred on it by the statute without any limitation24. It may be stated that both Rules made Under Section 29 as well as Regulations made Under Section 30 have to be placed before Parliament Under Section 31 of the Act. It is clear on a conspectus of the authorities that it is orders referable to Sections 11(4), 11(b), 11(d), 12(3) and 15-I of the Act, being quasi-judicial orders, and quasi judicial orders made under the Rules and Regulations that are the subject matter of appeal Under Section 15T. Administrative orders such as circulars issued under the present case referable to Section 11(1) of the Act are obviously outside the appellate jurisdiction of the Tribunal for the reasons given by us above. | 1 | 5,891 | 1,366 | ### Instruction:
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securities market.Explanation.--For the removal of doubts, it is hereby declared that the power to issue directions under this Section shall include and always be deemed to have been included the power to direct any person, who made profit or averted loss by indulging in any transaction or activity in contravention of the provisions of this Act or Regulations made thereunder, to disgorge an amount equivalent to the wrongful gain made or loss averted by such contravention.11D. Cease and desist proceedings. If the Board finds, after causing an inquiry to be made, that any person has violated, or is likely to violate, any provisions of this Act, or any Rules or Regulations made thereunder, it may pass an order requiring such person to cease and desist from committing or causing such violation: Provided that the Board shall not pass such order in respect of any listed public company or a public company (other than the intermediaries specified Under Section 12) which intends to get its securities listed on any recognised stock exchange unless the Board has reasonable grounds to believe that such company has indulged in insider trading or market manipulation.12. Registration of stock brokers, sub-brokers, share transfer agents, etc.(3) The Board may, by order, suspend or cancel a certificate of registration in such manner as may be determined by Regulations:Provided that no order under this Sub-section shall be made unless the person concerned has been given a reasonable opportunity of being heard.15-I. Power to adjudicate. (1) For the purpose of adjudging Under Sections 15A, 15B, 15C, 15D, 15E, 15F, 15G [15H, 15HA and 15HB, the Board shall appoint any officer not below the rank of a Division Chief to be an adjudicating officer for holding an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any penalty.(2) While holding an inquiry the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject-matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the Sections specified in Sub-section (1), he may impose such penalty as he thinks fit in accordance with the provisions of any of those sections.(3) The Board may call for and examine the record of any proceedings under this Section and if it considers that the order passed by the adjudicating officer is erroneous to the extent it is not in the interests of the securities market, it may, after making or causing to be made such inquiry as it deems necessary, pass an order enhancing the quantum of penalty, if the circumstances of the case so justify:Provided that no such order shall be passed unless the person concerned has been given an opportunity of being heard in the matter:Provided further that nothing contained in this Sub-section shall be applicable after an expiry of a period of three months from the date of the order passed by the adjudicating officer or disposal of the appeal Under Section 15T, whichever is earlier.22. Administrative functions of the Board are broadly referable to Section 11 (1) of the Act, which states as follows:11. Functions of Board. (1) Subject to the provisions of this Act, it shall be the duty of the Board to protect the interests of investors in securities and to promote the development of, and to regulate the securities market, by such measures as it thinks fit.23. Legislative functions, namely that of making of Regulations is referable to Section 30 of the Act which reads as follows:30. Power to make Regulations. (1) The Board may, by notification, make Regulations consistent with this Act and the Rules made thereunder to carry out the purposes of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such Regulations may provide for all or any of the following matters, namely:(a) the times and places of meetings of the Board and the procedure to be followed at such meetings under Sub-section (1) of Section 7 including quorum necessary for the transaction of business;(b) the terms and other conditions of service of officers and employees of the Board under Sub-section (2) of Section 9;(c) the matters relating to issue of capital, transfer of securities and other matters incidental thereto and the manner in which such matters shall be disclosed by the companies Under Section 11 A;(ca) the utilisation of the amount credited under Sub-section (5) of Section 11;(cb) the fulfilment of other conditions relating to collective investment scheme under Sub-section (2A) of Section 11AA;(d) the conditions subject to which certificate of registration is to be issued, the amount of fee to be paid for certificate of registration and the manner of suspension or cancellation of certificate of registration Under Section 12;(da) the terms determined by the Board for settlement of proceedings under Sub-section (2) and the procedure for conducting of settlement proceedings under Sub-section (3) of Section 15JB;(db) any other matter which is required to be, or may be, specified by Regulations or in respect of which provision is to be made by Regulations.24. It may be stated that both Rules made Under Section 29 as well as Regulations made Under Section 30 have to be placed before Parliament Under Section 31 of the Act. It is clear on a conspectus of the authorities that it is orders referable to Sections 11(4), 11(b), 11(d), 12(3) and 15-I of the Act, being quasi-judicial orders, and quasi judicial orders made under the Rules and Regulations that are the subject matter of appeal Under Section 15T. Administrative orders such as circulars issued under the present case referable to Section 11(1) of the Act are obviously outside the appellate jurisdiction of the Tribunal for the reasons given by us above.
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authority would be a quasi-judicial act, which emerge from the aforestated decisions are these:Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicialApplying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi-judicial authority if it is required to act judicially. [paras 24 and 25]It can be seen from the aforesaid decision that in addition to the tests already laid down, the absence of a lis between the parties would not necessarily lead to the conclusion that the power conferred on an administrative body would not be quasi-judicial-so long as the aforesaid three tests are followed, the power is quasi-judicial17. We now come to two judgments of this Court under Acts which deal with expert bodies like SEBI. In PTC India Ltd. v. Central Electricity Regulatory Commission [(2010) 4 SCC 603] , this Court had to construe various Sections of the Electricity Act, 2003, and ultimately came to the conclusion that the Appellate Tribunal for Electricity has no jurisdiction to decide the validity of Regulations framed under the Central Electricity Regulatory Commission Under Section 178 of the Electricity Act, 2003. The validity of the Regulations may, however, be challenged by seeking judicial review Under Article 226 of the Constitution of India18. In so stating, a summary of findings is given in paragraph 92 of the said judgment. Sub-paras (iii), (iv), and (v) are important from our point of view, and it is stated as follows:(iii) A Regulation Under Section 178 is made under the authority of delegated legislation and consequently its validity can be tested only in judicial review proceedings before the courts and not by way of appeal before the Appellate Tribunal for Electricity Under Section 111 of the said Act(iv) Section 121 of the 2003 Act does not confer power of judicial review on the Appellate Tribunal. The words "orders", "instructions" or "directions" in Section 121 do not confer power of judicial review in the Appellate Tribunal for Electricity. In this judgment, we do not wish to analyse the English authorities as we find from those authorities that in certain cases in England the power of judicial review is expressly conferred on the tribunals constituted under the Act. In the present 2003 Act, the power of judicial review of the validity of the Regulations made Under Section 178 is not conferred on the Appellate Tribunal for Electricity(v) If a dispute arises in adjudication on interpretation of a Regulation made Under Section 178, an appeal would certainly lie before the Appellate Tribunal Under Section 111, however, no appeal to the Appellate Tribunal shall lie on the validity of a Regulation made Under Section 178." [para 92]19. This judgment was followed in Bharat Sanchar Nigam Ltd. v. Telecom Regulatory Authority of India and Ors. [(2014) 3 SCC 222] . The Telecom Authority of India Act, 1997 had been amended in the year 2000 to take away from the expert body under the Act, viz. TRAI, all quasi-judicial functions. Post amendment, the question posed before this Court was whether TDSAT, viz. the Appellate Tribunal had in exercise of powers Under Section 14(b) of the TRAI Act, the jurisdiction to entertain a challenge to Regulations framed by TRAI Under Section 36 of the TRAI Act. This Court referred in detail to the PTC India judgment (supra) and ultimately held that TDSAT does not have such jurisdiction, Regulations being framed by TRAI Under Section 36 of the TRAI Act being legislative in nature20. A judgment of this Court dealing with the very Act we are dealing with is reported as Clariant International Ltd. and Anr. v. Securities & Exchange Board of India [(2004) 8 SCC 524] . In our view certain observations made in this judgment almost conclude the matters raised in this appeal. While discussing the effect of the Board being an expert body, this Court in paragraph 71 stated -The Board is indisputably an expert body. But when it exercises its quasi-judicial functions, its decisions are subject to appeal. The Appellate Tribunal is also an expert TribunalIn paragraph 77 this Court further went on to state -The Board exercises its legislative power by making Regulations, executive power by administering the Regulations framed by it and taking action against any entity violating these Regulations and judicial power by adjudicating disputes in the implementation thereof. The only check upon exercise of such wide-ranging powers is that it must comply with the Constitution and the Act. In that view of the matter, where an expert Tribunal has been constituted, the scrutiny at its end must be held to be of wide import. The Tribunal, another expert body, must, thus, be allowed to exercise its own jurisdiction conferred on it by the statute without any limitation24. It may be stated that both Rules made Under Section 29 as well as Regulations made Under Section 30 have to be placed before Parliament Under Section 31 of the Act. It is clear on a conspectus of the authorities that it is orders referable to Sections 11(4), 11(b), 11(d), 12(3) and 15-I of the Act, being quasi-judicial orders, and quasi judicial orders made under the Rules and Regulations that are the subject matter of appeal Under Section 15T. Administrative orders such as circulars issued under the present case referable to Section 11(1) of the Act are obviously outside the appellate jurisdiction of the Tribunal for the reasons given by us above.
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Madhubhai Amathalal Gandhi Vs. The Union Of India | years and irregularly conducted business on the floor of the Stock Exchange during the crucial year while including a member who might have been a newcomer or who might have been earlier a nominal member but began to do business regularly only during the said year.Emphasis was also laid upon the alleged elastic and indefinite content of the word "regular" and it was suggested that the said word could not possibly afford a precise standard. These are all weighty considerations and we must confess that there is force in them. But there is the other side of the picture. It is well settled that a classification must have reasonable relation to the object sought to be achieved. The standard of reasonableness is inextricably conditioned by the extent and nature of the evil and the urgency for eradicating the same. The object of the notification is two-fold. The main object is to carry out the purpose of the Act, namely, to prevent undesirable transactions in securities by regulating the business in them. The subsidiary object is to assuage to hardship that recognition of only one stock exchange would cause to the members of the other association. To achieve this twin object the classification is made between active members and inactive members. While on the one hand the Government found it necessary to exclude the nominal members who would add their deadweight to the recognised association and bring down its efficiency and affect its disciplined conduct of business, on the other hand it gave opportunity to persons who were actively interested in the business to become regular members of the Stock Exchange, Bombay. There is every justification for excluding members who had not been taking active interest in the business, for as we have already pointed out the efficient carrying out of the business of the Stock Exchange depends upon the moral stature, high calibre, and genuine and active interest evinced by the members. The active members justified themselves to the preferential treatment by their sustained interest in the business whereas the members who were not active showed their continued indifference to that line of business. But the crux of the question is, what is the justification for fixing twelve months immediately preceding August 6, 1957, as the standard for active membership? The Under-Secretary to the Government of India, Ministry of Finance, filed an affidavit describing the circumstances whereunder this classification was made. It discloses that the notification was issued after taking into consideration the representations made on behalf of both the Stock Exchanges and also the facts pertaining to the course of business conducted by the Indian Stock. Ex-change Limited. It also gives the vicissitudes through which the said Stock Exchange passes from the date of its formation and the circumstances under which the membership of that exchange was divided into full members and associate members. It points out that the Indian Stock Exchange Limited became moribund in a few years and to revive its activities it allowed the members of the East India Chamber of Commerce, by relaxing its entrance fee and security deposit requirements in 1950-51 and created a new class of Associate Members, which facilitated the enrolment of hundreds of Associated Members on payment of a nominal entrance fee of Rs. 100.The Government on a consideration of the necessary data and presumably having regard to the record of the activities of the various members fixed the activities in the crucial years 1956-57 as the standard of activity for membership.16. There is a presumption in favour of the State that there is a reasonable basis for the classification. Except the mere allegations in the affidavit which are not admitted, the petitioner has not placed before us any materials to ascertain that any other members, who were regularly doing business on the floor of the Indian Stock Exchange Limited before August 6, 1956, temporarily suspended their business for one reason or other over which they had no control. No statement from the accounts has been produced to enable us to evaluate the activities of the members before the crucial date so as to enable us to form a view that really active members were excluded by the fixing of this period. Nor are we in a position to verify whether any of the members excluded were regularly doing business during a part of the year in continuation of their business in earlier period. We cannot also say that the words "carrying on business regularly" are so vague that the parties did not understand their connotation, for it is admitted that some of the regular members applied for membership of the Stock Exchange, Bombay and most of them were admitted. There is also the fact that though three years have elapsed since the date of the notification no other member of the Indian Stock Exchange Limited thought fit to question the notification on the ground that the period fixed was unreasonable and that really active members were excluded from membership of the Stock Exchange, Bombay. So far as the petitioner is concerned, he was admittedly not an active member, though he now pretends that he was doing business through other members. There is also no material placed before us to support the said assertion. If the classification, between active members and others who were not, is justifiable - we hold it is - the Government has to draw a line somewhere and to fix a period of activity reasonable in its opinion as a standard to satisfy the test of "active member". The burden which lies upon the petitioner who impeaches the validity of the classification to show that it violates the guarantee of equal protection has not been discharged. On the material placed before us we cannot say that the period fixed by the Government as the standard for ascertaining the active membership is arbitrary or unreasonable. We must make it clear that this finding must be confined only to the validity of the impugned notification dated August 31, 1956. | 0[ds]There is a fallacy underlying this contention. Under Art. 13(2) of the Constitution, the State shall not make any law which takes away or abridges the rights conferred by Part III thereof; and "law" is defined under Art. 13(3)(a) to include a notification. Therefore, the validity of a notification issued by the State, it being law, is as much vulnerable to attack as that of the Act itself on the ground that it infringes any of the fundamental rights. If an Act is a self-contained on and the notification issued thereunder only restates the provisions of the Act, the validity of the notification cannot obviously be questioned as the validity of its contents were accepted. But if the Act confers a power on the State in general terms and the notification issued thereunder infringes one or other of the fundamental rights, the validity of the Act cannot equally obviously prevent an attack on the notification. In the former case the notification only reflects the provisions of a valid Act and in the latter it is the notification and not the Act that infringes the fundamental rights. Take an example of an Act imposing restrictions on the freedom of speech. The Act authorizes the State to impose conditions on the said freedom in the interests of security of State. The Act is constitutionally valid. But, if a notification issued under that Act imposes unreasonable restrictions infringing the said rights, it is liable to be challenged on the ground of unconstitutionality. So too, in the instant case S. 4 of the Act empowers the Central Government to issue a notification recognising a stock exchange subject to certain conditions expressed in general terms. The general terms can comprehend both reasonable and unreasonable restrictions. If the notification impose unreasonable restrictions - if the contention of the learned counsel for the petitioner be accepted, the restriction imposed would certainly be unreasonable - it is liable to be set aside. We cannot, therefore, accept this19(1)(g) of the Constitution states that every citizen shall have the right to carry on any business; but the State is empowered under cl. (6) of the said Article to make any law, imposing in the interest of the general public reasonable restrictions on the exercise of the said right. Briefly stated, the argument is that the combined effect of the two notifications is that the petitioner is driven out of his business of stock exchange inasmuch as, it is said, they confer a monopoly on the Stock Exchange. Bombay, and the rules of the said Stock Exchange exclude any outsider from becoming its member without obtaining a nomination and that too only in the place of an existing members. To put it differently, the argument proceeds that under the rules of the Stock Exchange, Bombay, membership is not thrown open to the public. This leads us to the consideration of the relevant provisions of the Stock Exchange Rules, Bye-laws and Regulations, 1957. Under R. 3 the membership of the Exchange shall consist of such number of members as the Exchange in general meeting may from time to time determine. It is common case that the membership of the Exchange is not limited. Under the heading "Election of New Members", the Rules prescribe the conditions of eligibility for election as a member of the Exchange. These Rules adopt the provisions of R. 8 of the Securities Contracts (Regulation) Rules, 1957. The Rules do not contain any limitation on the eligibility of a person to be elected as a member such as that the person should be nominated in the manner provided by the Rules or that he should come only in the vacancy caused by another member ceasing to be one in one of the ways mentioned thereunder. The words "no person" in R. 17 are comprehensive enough to take in any outsider seeking for election as a member. Rule 22 provides for an application for admission in the form prescribed in Appendix A to the Rules. This rule also does not impose any such limitation. The admission application form in Appendix A is also general in terms and enables any person of India to apply for membership provided he agrees to abide by the conditions imposed therein. In the form also there is no such limitation.A careful scrutiny of the Rules does not bear out the contention; nor do they enable us to cut down the wide amplitude of Rr. 17 toThis argument appears to be plausible and even incontrovertible, if Rr. 20 and 21 are taken out of their setting and construed independently of other rules.But in the setting in which they appear they can bear only one meaning, namely, that R. 20 provides for nomination only in the case of a candidate for admission who requires a nomination in the manner provided by the rule and R. 21 provides, for all the candidates for admission, that they should be recommended by two members who have personal knowledge of the candidates. To put it in other words, under the Rules candidates for admission fall under three groups, viz., (1) candidates falling under R. 11, (a) and (b); (2) candidates applying for membership vesting in the Exchange; and (3) other candidates. All the three categories of candidates must be recommended by two members. But the candidates belonging to the first category shall in addition be nominated in the manner provided by the Rules. We, therefore, hold that the Stock Exchange Rules do not operate as a bar against the petitioner becoming a member of the Stock Exchange subject to the rules governing such application. The petitioner has the right to do business in share : in spite of the notifications he can still do business in spot delivery contracts. He can apply to become a member of the Stock Exchange subject to the conditions laid down by the Rules. The Act, the validity of which he has not chosen to question, enables the State to give or refuse recognition to any Stock Exchange and it has chosen to give recognition to the Stock Exchange, Bombay subject to the conditions prescribed. The restrictions, in our view, are not unreasonable, having regard to the importance of the business of a stock exchange in the countrys national economy and having regard to the magnitude of the mischief sought to be remedied in the interest of the general public. At another place we have already dealt with the necessity for stringenet rules governing this type of business. For the reasons mentioned we reject the firstsecond contention also has no merits. The criticism is that condition 2(1)(a) annexed to the notification cannot be supported on the basis of any of the provisions of S. 4 of the Act.e argument proceeds that condition 2(i)(a) enables only the active members of the Indian Stock Exchange Limited to apply for membership of the Stock Exchange, Bombay and that such a condition can be imposed only if it amounts to a qualification of membership within the meaning of sub-s. (2) of S. 4, as the other conditions in that sub-section are obviously inapplicable. It is further pointed out that sub-s. (2) refers back to sub-s. (1)(a) and under that clause the condition imposed must only be that prescribed by the Rules made under the Act and that the condition imposed by the notification is not a condition so prescribed.Then is force in this argument; but the acceptance of this contention does not advance the case of the petitioner, for if the condition is not covered by Cl. (a) of S. 4(1), it falls under Cl. (b) thereof. Under that clause the Central Government may grant recognition to a stock exchange if the said stock exchange is willing to comply with "any other conditions". It is said that the other conditions in S. 4(1) (b) must only be conditions relating to the area served by the stock exchange, its standing and the nature of the securities dealt with by it. This is not what Cl. (b) of S. 4(1) says. The conditions under Cl. (b) of S. 4(1) no doubt shall be such as may be imposed by the Government, having regard to the aforesaid three considerations, but they need not necessarily be confined only to the said considerations. The Government may impose any conditions, no doubt germane to the recognition of a stock exchange, after consultation with its governing board, and having regard to the said considerations. It cannot be said that condition 2(i)(a) imposed on the Stock Exchange is not a condition germane to its recognition. The record discloses that the Central Government in recognising the Stock Exchange sought to avoid the consequential hardship on the members of the rival stock exchange and therefore imposed the said condition on the Stock Exchange, Bombay, as a condition for its recognition. The condition is, germane to the recognition of Stock Exchange and is, therefore, a condition within the meaning of "any other conditions" in Cl. (b) of sub-s. (1) of S. 4 of theare all weighty considerations and we must confess that there is force in them. But there is the other side of the picture. It is well settled that a classification must have reasonable relation to the object sought to be achieved. The standard of reasonableness is inextricably conditioned by the extent and nature of the evil and the urgency for eradicating the same. The object of the notification is two-fold. The main object is to carry out the purpose of the Act, namely, to prevent undesirable transactions in securities by regulating the business in them. The subsidiary object is to assuage to hardship that recognition of only one stock exchange would cause to the members of the other association. To achieve this twin object the classification is made between active members and inactive members. While on the one hand the Government found it necessary to exclude the nominal members who would add their deadweight to the recognised association and bring down its efficiency and affect its disciplined conduct of business, on the other hand it gave opportunity to persons who were actively interested in the business to become regular members of the Stock Exchange, Bombay. There is every justification for excluding members who had not been taking active interest in the business, for as we have already pointed out the efficient carrying out of the business of the Stock Exchange depends upon the moral stature, high calibre, and genuine and active interest evinced by the members. The active members justified themselves to the preferential treatment by their sustained interest in the business whereas the members who were not active showed their continued indifference to that line ofUnder-Secretary to the Government of India, Ministry of Finance, filed an affidavit describing the circumstances whereunder this classification was made. It discloses that the notification was issued after taking into consideration the representations made on behalf of both the Stock Exchanges and also the facts pertaining to the course of business conducted by the Indian Stock. Ex-change Limited. It also gives the vicissitudes through which the said Stock Exchange passes from the date of its formation and the circumstances under which the membership of that exchange was divided into full members and associate members. It points out that the Indian Stock Exchange Limited became moribund in a few years and to revive its activities it allowed the members of the East India Chamber of Commerce, by relaxing its entrance fee and security deposit requirements in 1950-51 and created a new class of Associate Members, which facilitated the enrolment of hundreds of Associated Members on payment of a nominal entrance fee of Rs. 100.The Government on a consideration of the necessary data and presumably having regard to the record of the activities of the various members fixed the activities in the crucial years 1956-57 as the standard of activity for membership.16. There is a presumption in favour of the State that there is a reasonable basis for the classification. Except the mere allegations in the affidavit which are not admitted, the petitioner has not placed before us any materials to ascertain that any other members, who were regularly doing business on the floor of the Indian Stock Exchange Limited before August 6, 1956, temporarily suspended their business for one reason or other over which they had no control. No statement from the accounts has been produced to enable us to evaluate the activities of the members before the crucial date so as to enable us to form a view that really active members were excluded by the fixing of this period. Nor are we in a position to verify whether any of the members excluded were regularly doing business during a part of the year in continuation of their business in earlier period. We cannot also say that the words "carrying on business regularly" are so vague that the parties did not understand their connotation, for it is admitted that some of the regular members applied for membership of the Stock Exchange, Bombay and most of them were admitted. There is also the fact that though three years have elapsed since the date of the notification no other member of the Indian Stock Exchange Limited thought fit to question the notification on the ground that the period fixed was unreasonable and that really active members were excluded from membership of the Stock Exchange, Bombay. So far as the petitioner is concerned, he was admittedly not an active member, though he now pretends that he was doing business through other members. There is also no material placed before us to support the said assertion. If the classification, between active members and others who were not, is justifiable - we hold it is - the Government has to draw a line somewhere and to fix a period of activity reasonable in its opinion as a standard to satisfy the test of "active member". The burden which lies upon the petitioner who impeaches the validity of the classification to show that it violates the guarantee of equal protection has not been discharged. On the material placed before us we cannot say that the period fixed by the Government as the standard for ascertaining the active membership is arbitrary or unreasonable. We must make it clear that this finding must be confined only to the validity of the impugned notification dated August 31, 1956. | 0 | 6,751 | 2,674 | ### 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:
years and irregularly conducted business on the floor of the Stock Exchange during the crucial year while including a member who might have been a newcomer or who might have been earlier a nominal member but began to do business regularly only during the said year.Emphasis was also laid upon the alleged elastic and indefinite content of the word "regular" and it was suggested that the said word could not possibly afford a precise standard. These are all weighty considerations and we must confess that there is force in them. But there is the other side of the picture. It is well settled that a classification must have reasonable relation to the object sought to be achieved. The standard of reasonableness is inextricably conditioned by the extent and nature of the evil and the urgency for eradicating the same. The object of the notification is two-fold. The main object is to carry out the purpose of the Act, namely, to prevent undesirable transactions in securities by regulating the business in them. The subsidiary object is to assuage to hardship that recognition of only one stock exchange would cause to the members of the other association. To achieve this twin object the classification is made between active members and inactive members. While on the one hand the Government found it necessary to exclude the nominal members who would add their deadweight to the recognised association and bring down its efficiency and affect its disciplined conduct of business, on the other hand it gave opportunity to persons who were actively interested in the business to become regular members of the Stock Exchange, Bombay. There is every justification for excluding members who had not been taking active interest in the business, for as we have already pointed out the efficient carrying out of the business of the Stock Exchange depends upon the moral stature, high calibre, and genuine and active interest evinced by the members. The active members justified themselves to the preferential treatment by their sustained interest in the business whereas the members who were not active showed their continued indifference to that line of business. But the crux of the question is, what is the justification for fixing twelve months immediately preceding August 6, 1957, as the standard for active membership? The Under-Secretary to the Government of India, Ministry of Finance, filed an affidavit describing the circumstances whereunder this classification was made. It discloses that the notification was issued after taking into consideration the representations made on behalf of both the Stock Exchanges and also the facts pertaining to the course of business conducted by the Indian Stock. Ex-change Limited. It also gives the vicissitudes through which the said Stock Exchange passes from the date of its formation and the circumstances under which the membership of that exchange was divided into full members and associate members. It points out that the Indian Stock Exchange Limited became moribund in a few years and to revive its activities it allowed the members of the East India Chamber of Commerce, by relaxing its entrance fee and security deposit requirements in 1950-51 and created a new class of Associate Members, which facilitated the enrolment of hundreds of Associated Members on payment of a nominal entrance fee of Rs. 100.The Government on a consideration of the necessary data and presumably having regard to the record of the activities of the various members fixed the activities in the crucial years 1956-57 as the standard of activity for membership.16. There is a presumption in favour of the State that there is a reasonable basis for the classification. Except the mere allegations in the affidavit which are not admitted, the petitioner has not placed before us any materials to ascertain that any other members, who were regularly doing business on the floor of the Indian Stock Exchange Limited before August 6, 1956, temporarily suspended their business for one reason or other over which they had no control. No statement from the accounts has been produced to enable us to evaluate the activities of the members before the crucial date so as to enable us to form a view that really active members were excluded by the fixing of this period. Nor are we in a position to verify whether any of the members excluded were regularly doing business during a part of the year in continuation of their business in earlier period. We cannot also say that the words "carrying on business regularly" are so vague that the parties did not understand their connotation, for it is admitted that some of the regular members applied for membership of the Stock Exchange, Bombay and most of them were admitted. There is also the fact that though three years have elapsed since the date of the notification no other member of the Indian Stock Exchange Limited thought fit to question the notification on the ground that the period fixed was unreasonable and that really active members were excluded from membership of the Stock Exchange, Bombay. So far as the petitioner is concerned, he was admittedly not an active member, though he now pretends that he was doing business through other members. There is also no material placed before us to support the said assertion. If the classification, between active members and others who were not, is justifiable - we hold it is - the Government has to draw a line somewhere and to fix a period of activity reasonable in its opinion as a standard to satisfy the test of "active member". The burden which lies upon the petitioner who impeaches the validity of the classification to show that it violates the guarantee of equal protection has not been discharged. On the material placed before us we cannot say that the period fixed by the Government as the standard for ascertaining the active membership is arbitrary or unreasonable. We must make it clear that this finding must be confined only to the validity of the impugned notification dated August 31, 1956.
### Response:
0
### Explanation:
its governing board, and having regard to the said considerations. It cannot be said that condition 2(i)(a) imposed on the Stock Exchange is not a condition germane to its recognition. The record discloses that the Central Government in recognising the Stock Exchange sought to avoid the consequential hardship on the members of the rival stock exchange and therefore imposed the said condition on the Stock Exchange, Bombay, as a condition for its recognition. The condition is, germane to the recognition of Stock Exchange and is, therefore, a condition within the meaning of "any other conditions" in Cl. (b) of sub-s. (1) of S. 4 of theare all weighty considerations and we must confess that there is force in them. But there is the other side of the picture. It is well settled that a classification must have reasonable relation to the object sought to be achieved. The standard of reasonableness is inextricably conditioned by the extent and nature of the evil and the urgency for eradicating the same. The object of the notification is two-fold. The main object is to carry out the purpose of the Act, namely, to prevent undesirable transactions in securities by regulating the business in them. The subsidiary object is to assuage to hardship that recognition of only one stock exchange would cause to the members of the other association. To achieve this twin object the classification is made between active members and inactive members. While on the one hand the Government found it necessary to exclude the nominal members who would add their deadweight to the recognised association and bring down its efficiency and affect its disciplined conduct of business, on the other hand it gave opportunity to persons who were actively interested in the business to become regular members of the Stock Exchange, Bombay. There is every justification for excluding members who had not been taking active interest in the business, for as we have already pointed out the efficient carrying out of the business of the Stock Exchange depends upon the moral stature, high calibre, and genuine and active interest evinced by the members. The active members justified themselves to the preferential treatment by their sustained interest in the business whereas the members who were not active showed their continued indifference to that line ofUnder-Secretary to the Government of India, Ministry of Finance, filed an affidavit describing the circumstances whereunder this classification was made. It discloses that the notification was issued after taking into consideration the representations made on behalf of both the Stock Exchanges and also the facts pertaining to the course of business conducted by the Indian Stock. Ex-change Limited. It also gives the vicissitudes through which the said Stock Exchange passes from the date of its formation and the circumstances under which the membership of that exchange was divided into full members and associate members. It points out that the Indian Stock Exchange Limited became moribund in a few years and to revive its activities it allowed the members of the East India Chamber of Commerce, by relaxing its entrance fee and security deposit requirements in 1950-51 and created a new class of Associate Members, which facilitated the enrolment of hundreds of Associated Members on payment of a nominal entrance fee of Rs. 100.The Government on a consideration of the necessary data and presumably having regard to the record of the activities of the various members fixed the activities in the crucial years 1956-57 as the standard of activity for membership.16. There is a presumption in favour of the State that there is a reasonable basis for the classification. Except the mere allegations in the affidavit which are not admitted, the petitioner has not placed before us any materials to ascertain that any other members, who were regularly doing business on the floor of the Indian Stock Exchange Limited before August 6, 1956, temporarily suspended their business for one reason or other over which they had no control. No statement from the accounts has been produced to enable us to evaluate the activities of the members before the crucial date so as to enable us to form a view that really active members were excluded by the fixing of this period. Nor are we in a position to verify whether any of the members excluded were regularly doing business during a part of the year in continuation of their business in earlier period. We cannot also say that the words "carrying on business regularly" are so vague that the parties did not understand their connotation, for it is admitted that some of the regular members applied for membership of the Stock Exchange, Bombay and most of them were admitted. There is also the fact that though three years have elapsed since the date of the notification no other member of the Indian Stock Exchange Limited thought fit to question the notification on the ground that the period fixed was unreasonable and that really active members were excluded from membership of the Stock Exchange, Bombay. So far as the petitioner is concerned, he was admittedly not an active member, though he now pretends that he was doing business through other members. There is also no material placed before us to support the said assertion. If the classification, between active members and others who were not, is justifiable - we hold it is - the Government has to draw a line somewhere and to fix a period of activity reasonable in its opinion as a standard to satisfy the test of "active member". The burden which lies upon the petitioner who impeaches the validity of the classification to show that it violates the guarantee of equal protection has not been discharged. On the material placed before us we cannot say that the period fixed by the Government as the standard for ascertaining the active membership is arbitrary or unreasonable. We must make it clear that this finding must be confined only to the validity of the impugned notification dated August 31, 1956.
|
Sterling General Insurance Co. Ltd Vs. Planters Airways Pvt. Ltd | the delay is the owners fault."14. Therefore, we will have to take a liberal view of the meaning of the words "undue hardship". "Undue" must mean something which is not merited by the conduct of the claimant, or is very much disproportionate to it.15. Keeping in view these principles, it has to be seen whether in the facts and circumstances of this case, there was reasonable and sufficient ground for not preferring the claim to arbitration within the time specified in clause 12 of the policy and whether there would be "undue hardship" to the respondent if time is not extended.16. It may be recalled that it was on July 1, 1971 and September 21, 1971 that the respondent lodged its claim with the appellant to recover the loss Buffered. Thereafter, various letters passed between the parties. Ultimately, on February 16, 1973, the appellant wrote the letter to the respondent stating that the claim papers submitted in connection with the claim had been scrutinized by the appellant but that it was unable to accept liability for the loss. The respondent then wrote a letter to the appellant on 30-3-1973 complaining about the uncertain language used in the letter dated February 16. 1973 and calling upon the respondent to point out specifically under which clause of exclusion of liability in the policy did the appellant disclaim the liability. The appellant kept quiet for 2 months and then on May. 30, 1973, sent a letter stating that it had nothing further to add to what had been stated in its letter dates February 16, 1973.17. The respondent was having dealings with the appellant in the business of insurance from 1958 onwards and in no instance was the claim made by the respondent rejected by the appellant. The conduct of the respondent in enquiring of the appellant the grounds on which the claim was rejected was quite reasonable. It was only after the grounds of rejection were known that the respondent could have decided whether to resort to arbitration or not. If the grounds of rejection would come within the clause of exclusion of liability under the policy. it would serve no purpose to incur the expense and hardship involved in resorting to arbitration The appellant did not give the reason for disclaiming liability even in its letter dated 30-5-1973. We do not think that there was any lack of promptness on the part of the respondent in waiting for the reply to its letter dated 30-3-1973. And, in the first week of June 1973, the respondent made over the papers to the solicitors viz. M/s. Banerji and Co. for the purpose of taking necessary steps for referring the dispute to arbitration in terms of the arbitration clause in the policy. On or about June 15 1973, the respondent received the written opinion from the Solicitors wherein they stated that since the letter of the appellant disclaiming liability was vague and since the appellant gave no reason for rejection of the claim even in their letter dated 30-5-1973, the appellant might rely upon Clause 12 of the policy of insurance and contend that the reference to arbitration would be beyond time.The solicitors, however, advised that in view of the delay on the part of the appellant and its failure to specify any reason for the disclaimer, the respondent might take steps for nominating an arbitrator and proceed with the reference. When the written opinion was received from the solicitors, the respondent had some doubt, because the solicitors did not give a definite opinion. So, it instructed the solicitors to take the opinion of counsel. After preparing the necessary case for the opinion, the solicitors briefed counsel for opinion on June 28.1973. The opinion of counsel was to the effect that the respondent should apply for extension of time under Section 37 (4) of the Arbitration Act and that was received by the solicitors on 16-7-1973. The respondent was informed of the opinion of counsel end it received a copy thereof on 18-7-1973. After gathering the facts from the records mentioned in the opinion of the counsel the respondent instructed the solicitors to take steps for filing a petition for extension of time. It, however, took some time to gather the facts indicated in the opinion of counsel. On 25-7-1973 the respondents solicitors sent the brief to counsel to draft the petition and the petition was received by them on 30-7-1973. Thereafter it took sometime to prepare a statement from available records.18. In the facts and circumstances of this case, we think the High Court exercised its discretion properly in extending the time. The conduct of the respondent was reasonable. It took all steps it could when it knew about the alleged robbery to inform the police and the appellant. The fact that the Barasat police reported that the case was false does not necessarily mean that the respondent tried to practice any fraud upon the appellant. The respondent had filed a suit against the owner of the truck in question in July, 1972, for recovery of the amount of loss. The respondent also paid the claims arising out of the loss of goods which were transported through the truck. All these go to show the bona fides end reasonableness of the conduct of the respondent. Both the amount at stake and the reasons for delay are material in considering the question of undue hardship. We do not think that any material prejudice would be caused to the appellant by extending the time. There would be undue hardship if time is not extended. as the consequences of non-extension would in any event be excessive and out of proportion to the fault of the respondent, if any, in not being prompt. We do not say that the mere fact that a claim would be barred would be undue hardship. But considering the amount involved and the reasons for the delay, we think it would be undue hardship to the respondent if time is not extended. | 0[ds]6. Clause 1 of the policy states that notice of any accident, loss or damage affecting the insurance shall be given to the Company at the earliest possible date and not later than 30 days from the date of the accident, loss or damage. Clause 2 of the policy provides that in the event of any loss or damage covered by the insurance the insured shall produce and give to the Company all evidence as may be reasonably required by the Company. Clause 9 provides that if the insured shall make any claim knowing the same to be false or fraudulent as regards the amount or otherwise, the insurance shall become void and all claims thereunder shal1 be forfeited. Clause 11 states that all differences arising out of the contract shall be referred to the decision of an arbitrator to be appointed in writing by the parties or if they cannot agree upon a single arbitrator, to the decision of two arbitrators, one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to do by either of the parties. It further provides that the making of an award by the arbitrator or arbitrators shall be a condition precedent to any right of action against theThere are no decisions of this Court or of the High Courts concerning the relevant considerations to be taken into account in exercising the jurisdiction for extending time under Section 37 (4) of the Act.Section 16 (6) of the English Arbitration Act, 1934 which is practically the same as Section 27 of the English Arbitration Act of l950 is in pari materia with Section 37 (4) of the Act. Therefore, the interpretation placed by English Courts upon Section 16 (6) and Section 27 of the respective Acts has great persuasive value.Keeping in view these principles, it has to be seen whether in the facts and circumstances of this case, there was reasonable and sufficient ground for not preferring the claim to arbitration within the time specified in clause 12 of the policy and whether there would be "undue hardship" to the respondent if time is not extended.16. It may be recalled that it was on July 1, 1971 and September 21, 1971 that the respondent lodged its claim with the appellant to recover the loss Buffered. Thereafter, various letters passed between the parties. Ultimately, on February 16, 1973, the appellant wrote the letter to the respondent stating that the claim papers submitted in connection with the claim had been scrutinized by the appellant but that it was unable to accept liability for the loss. The respondent then wrote a letter to the appellant on 30-3-1973 complaining about the uncertain language used in the letter dated February 16. 1973 and calling upon the respondent to point out specifically under which clause of exclusion of liability in the policy did the appellant disclaim the liability. The appellant kept quiet for 2 months and then on May. 30, 1973, sent a letter stating that it had nothing further to add to what had been stated in its letter dates February 16, 1973.17. The respondent was having dealings with the appellant in the business of insurance from 1958 onwards and in no instance was the claim made by the respondent rejected by the appellant. The conduct of the respondent in enquiring of the appellant the grounds on which the claim was rejected was quite reasonable. It was only after the grounds of rejection were known that the respondent could have decided whether to resort to arbitration or not. If the grounds of rejection would come within the clause of exclusion of liability under the policy. it would serve no purpose to incur the expense and hardship involved in resorting to arbitration The appellant did not give the reason for disclaiming liability even in its letter dated 30-5-1973. We do not think that there was any lack of promptness on the part of the respondent in waiting for the reply to its letter dated 30-3-1973. And, in the first week of June 1973, the respondent made over the papers to the solicitors viz. M/s. Banerji and Co. for the purpose of taking necessary steps for referring the dispute to arbitration in terms of the arbitration clause in the policy. On or about June 15 1973, the respondent received the written opinion from the Solicitors wherein they stated that since the letter of the appellant disclaiming liability was vague and since the appellant gave no reason for rejection of the claim even in their letter dated 30-5-1973, the appellant might rely upon Clause 12 of the policy of insurance and contend that the reference to arbitration would be beyond time.The solicitors, however, advised that in view of the delay on the part of the appellant and its failure to specify any reason for the disclaimer, the respondent might take steps for nominating an arbitrator and proceed with the reference. When the written opinion was received from the solicitors, the respondent had some doubt, because the solicitors did not give a definite opinion. So, it instructed the solicitors to take the opinion of counsel. After preparing the necessary case for the opinion, the solicitors briefed counsel for opinion on June 28.1973. The opinion of counsel was to the effect that the respondent should apply for extension of time under Section 37 (4) of the Arbitration Act and that was received by the solicitors on 16-7-1973. The respondent was informed of the opinion of counsel end it received a copy thereof on 18-7-1973. After gathering the facts from the records mentioned in the opinion of the counsel the respondent instructed the solicitors to take steps for filing a petition for extension of time. It, however, took some time to gather the facts indicated in the opinion of counsel. On 25-7-1973 the respondents solicitors sent the brief to counsel to draft the petition and the petition was received by them on 30-7-1973. Thereafter it took sometime to prepare a statement from available records.18. In the facts and circumstances of this case, we think the High Court exercised its discretion properly in extending the time. The conduct of the respondent was reasonable. It took all steps it could when it knew about the alleged robbery to inform the police and the appellant. The fact that the Barasat police reported that the case was false does not necessarily mean that the respondent tried to practice any fraud upon the appellant. The respondent had filed a suit against the owner of the truck in question in July, 1972, for recovery of the amount of loss. The respondent also paid the claims arising out of the loss of goods which were transported through the truck. All these go to show the bona fides end reasonableness of the conduct of the respondent. Both the amount at stake and the reasons for delay are material in considering the question of undue hardship. We do not think that any material prejudice would be caused to the appellant by extending the time. There would be undue hardship if time is not extended. as the consequences of non-extension would in any event be excessive and out of proportion to the fault of the respondent, if any, in not being prompt. We do not say that the mere fact that a claim would be barred would be undue hardship. But considering the amount involved and the reasons for the delay, we think it would be undue hardship to the respondent if time is not extended. | 0 | 4,476 | 1,362 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the delay is the owners fault."14. Therefore, we will have to take a liberal view of the meaning of the words "undue hardship". "Undue" must mean something which is not merited by the conduct of the claimant, or is very much disproportionate to it.15. Keeping in view these principles, it has to be seen whether in the facts and circumstances of this case, there was reasonable and sufficient ground for not preferring the claim to arbitration within the time specified in clause 12 of the policy and whether there would be "undue hardship" to the respondent if time is not extended.16. It may be recalled that it was on July 1, 1971 and September 21, 1971 that the respondent lodged its claim with the appellant to recover the loss Buffered. Thereafter, various letters passed between the parties. Ultimately, on February 16, 1973, the appellant wrote the letter to the respondent stating that the claim papers submitted in connection with the claim had been scrutinized by the appellant but that it was unable to accept liability for the loss. The respondent then wrote a letter to the appellant on 30-3-1973 complaining about the uncertain language used in the letter dated February 16. 1973 and calling upon the respondent to point out specifically under which clause of exclusion of liability in the policy did the appellant disclaim the liability. The appellant kept quiet for 2 months and then on May. 30, 1973, sent a letter stating that it had nothing further to add to what had been stated in its letter dates February 16, 1973.17. The respondent was having dealings with the appellant in the business of insurance from 1958 onwards and in no instance was the claim made by the respondent rejected by the appellant. The conduct of the respondent in enquiring of the appellant the grounds on which the claim was rejected was quite reasonable. It was only after the grounds of rejection were known that the respondent could have decided whether to resort to arbitration or not. If the grounds of rejection would come within the clause of exclusion of liability under the policy. it would serve no purpose to incur the expense and hardship involved in resorting to arbitration The appellant did not give the reason for disclaiming liability even in its letter dated 30-5-1973. We do not think that there was any lack of promptness on the part of the respondent in waiting for the reply to its letter dated 30-3-1973. And, in the first week of June 1973, the respondent made over the papers to the solicitors viz. M/s. Banerji and Co. for the purpose of taking necessary steps for referring the dispute to arbitration in terms of the arbitration clause in the policy. On or about June 15 1973, the respondent received the written opinion from the Solicitors wherein they stated that since the letter of the appellant disclaiming liability was vague and since the appellant gave no reason for rejection of the claim even in their letter dated 30-5-1973, the appellant might rely upon Clause 12 of the policy of insurance and contend that the reference to arbitration would be beyond time.The solicitors, however, advised that in view of the delay on the part of the appellant and its failure to specify any reason for the disclaimer, the respondent might take steps for nominating an arbitrator and proceed with the reference. When the written opinion was received from the solicitors, the respondent had some doubt, because the solicitors did not give a definite opinion. So, it instructed the solicitors to take the opinion of counsel. After preparing the necessary case for the opinion, the solicitors briefed counsel for opinion on June 28.1973. The opinion of counsel was to the effect that the respondent should apply for extension of time under Section 37 (4) of the Arbitration Act and that was received by the solicitors on 16-7-1973. The respondent was informed of the opinion of counsel end it received a copy thereof on 18-7-1973. After gathering the facts from the records mentioned in the opinion of the counsel the respondent instructed the solicitors to take steps for filing a petition for extension of time. It, however, took some time to gather the facts indicated in the opinion of counsel. On 25-7-1973 the respondents solicitors sent the brief to counsel to draft the petition and the petition was received by them on 30-7-1973. Thereafter it took sometime to prepare a statement from available records.18. In the facts and circumstances of this case, we think the High Court exercised its discretion properly in extending the time. The conduct of the respondent was reasonable. It took all steps it could when it knew about the alleged robbery to inform the police and the appellant. The fact that the Barasat police reported that the case was false does not necessarily mean that the respondent tried to practice any fraud upon the appellant. The respondent had filed a suit against the owner of the truck in question in July, 1972, for recovery of the amount of loss. The respondent also paid the claims arising out of the loss of goods which were transported through the truck. All these go to show the bona fides end reasonableness of the conduct of the respondent. Both the amount at stake and the reasons for delay are material in considering the question of undue hardship. We do not think that any material prejudice would be caused to the appellant by extending the time. There would be undue hardship if time is not extended. as the consequences of non-extension would in any event be excessive and out of proportion to the fault of the respondent, if any, in not being prompt. We do not say that the mere fact that a claim would be barred would be undue hardship. But considering the amount involved and the reasons for the delay, we think it would be undue hardship to the respondent if time is not extended.
### Response:
0
### Explanation:
the same as Section 27 of the English Arbitration Act of l950 is in pari materia with Section 37 (4) of the Act. Therefore, the interpretation placed by English Courts upon Section 16 (6) and Section 27 of the respective Acts has great persuasive value.Keeping in view these principles, it has to be seen whether in the facts and circumstances of this case, there was reasonable and sufficient ground for not preferring the claim to arbitration within the time specified in clause 12 of the policy and whether there would be "undue hardship" to the respondent if time is not extended.16. It may be recalled that it was on July 1, 1971 and September 21, 1971 that the respondent lodged its claim with the appellant to recover the loss Buffered. Thereafter, various letters passed between the parties. Ultimately, on February 16, 1973, the appellant wrote the letter to the respondent stating that the claim papers submitted in connection with the claim had been scrutinized by the appellant but that it was unable to accept liability for the loss. The respondent then wrote a letter to the appellant on 30-3-1973 complaining about the uncertain language used in the letter dated February 16. 1973 and calling upon the respondent to point out specifically under which clause of exclusion of liability in the policy did the appellant disclaim the liability. The appellant kept quiet for 2 months and then on May. 30, 1973, sent a letter stating that it had nothing further to add to what had been stated in its letter dates February 16, 1973.17. The respondent was having dealings with the appellant in the business of insurance from 1958 onwards and in no instance was the claim made by the respondent rejected by the appellant. The conduct of the respondent in enquiring of the appellant the grounds on which the claim was rejected was quite reasonable. It was only after the grounds of rejection were known that the respondent could have decided whether to resort to arbitration or not. If the grounds of rejection would come within the clause of exclusion of liability under the policy. it would serve no purpose to incur the expense and hardship involved in resorting to arbitration The appellant did not give the reason for disclaiming liability even in its letter dated 30-5-1973. We do not think that there was any lack of promptness on the part of the respondent in waiting for the reply to its letter dated 30-3-1973. And, in the first week of June 1973, the respondent made over the papers to the solicitors viz. M/s. Banerji and Co. for the purpose of taking necessary steps for referring the dispute to arbitration in terms of the arbitration clause in the policy. On or about June 15 1973, the respondent received the written opinion from the Solicitors wherein they stated that since the letter of the appellant disclaiming liability was vague and since the appellant gave no reason for rejection of the claim even in their letter dated 30-5-1973, the appellant might rely upon Clause 12 of the policy of insurance and contend that the reference to arbitration would be beyond time.The solicitors, however, advised that in view of the delay on the part of the appellant and its failure to specify any reason for the disclaimer, the respondent might take steps for nominating an arbitrator and proceed with the reference. When the written opinion was received from the solicitors, the respondent had some doubt, because the solicitors did not give a definite opinion. So, it instructed the solicitors to take the opinion of counsel. After preparing the necessary case for the opinion, the solicitors briefed counsel for opinion on June 28.1973. The opinion of counsel was to the effect that the respondent should apply for extension of time under Section 37 (4) of the Arbitration Act and that was received by the solicitors on 16-7-1973. The respondent was informed of the opinion of counsel end it received a copy thereof on 18-7-1973. After gathering the facts from the records mentioned in the opinion of the counsel the respondent instructed the solicitors to take steps for filing a petition for extension of time. It, however, took some time to gather the facts indicated in the opinion of counsel. On 25-7-1973 the respondents solicitors sent the brief to counsel to draft the petition and the petition was received by them on 30-7-1973. Thereafter it took sometime to prepare a statement from available records.18. In the facts and circumstances of this case, we think the High Court exercised its discretion properly in extending the time. The conduct of the respondent was reasonable. It took all steps it could when it knew about the alleged robbery to inform the police and the appellant. The fact that the Barasat police reported that the case was false does not necessarily mean that the respondent tried to practice any fraud upon the appellant. The respondent had filed a suit against the owner of the truck in question in July, 1972, for recovery of the amount of loss. The respondent also paid the claims arising out of the loss of goods which were transported through the truck. All these go to show the bona fides end reasonableness of the conduct of the respondent. Both the amount at stake and the reasons for delay are material in considering the question of undue hardship. We do not think that any material prejudice would be caused to the appellant by extending the time. There would be undue hardship if time is not extended. as the consequences of non-extension would in any event be excessive and out of proportion to the fault of the respondent, if any, in not being prompt. We do not say that the mere fact that a claim would be barred would be undue hardship. But considering the amount involved and the reasons for the delay, we think it would be undue hardship to the respondent if time is not extended.
|
Canara Bank Vs. National Thermal Power Corpn. | facts of the present case. 9. In ONGCs case the Cabinet Secretary was shown to have taken appropriate initiative as per direction of the Court dated 11.9.1991 and reported to the Court that the dispute between the Government Department and the public sector undertaking of the Union of India had been settled. In that view of the matter no further action was taken on the petition. The Cabinet Secretary in his Report had stated : "I would also like to state that the Government respects the views expressed this Honourable Court and has accepted them that public undertakings of Central Government and the Union of India should not fight their litigation in Court by spending money on fees on counsel, Court fees, procedural expenses and wasting public time. It is in this context that the Cabinet Secretary has issued instructions from time to time to all Departments of the Government of India as well as to public undertakings of the Central Government to the effect that all disputes, regardless of the type, should be resolved amicably by mutual consultation or through the goods offices of empowered agencies of the Government or through arbitration and recourse to litigation should be eliminated." 10. In the light of the Report of the Cabinet Secretary this Court directed as under : "We direct that the Government of India shall set up a Committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior Officers only should be nominated so that the Committee would function with status, control and discipline. It shall be the obligation of every Court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with. The Committee shall function under the ultimate control of the Cabinet Secretary but his delegate may look after the matters. This Court would expect a quarterly report about the functioning of this system to be furnished to the Registry beginning from 1.1.1992." 11. What the Court has directed in ONGCs case is that frivolous litigation between Government Departments and Public Sector Undertakings of the Union of India should not be dragged in the Courts and be amicably resolved by the Committee. The judgment is intended to prevent avoidable litigation between the Government Departments and the Undertakings of the Union of India. In the present litigation there does not appear to be a genuine dispute between the Government of India undertakings. In this case one of the public sector undertaking is shown to be acting not as an undertaking but as Trustee of a Trust. The Board was, therefore, justified in holding "that the real litigation in this case, therefore, is between Mutual Fund and NTPC" and not between the two undertakings. The meaning of word "dispute" is, `a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. In the instant case the claim preferred on behalf of the CBMF was not denied by the Corporation but in turn a counter claim with respect to the liability of a subsidiary of the Bank was raised. The dispute raised is without laying any basis or placing on record any evidence in support thereof. Imaginative disputes raised only to defeat the undisputed claim of the Trustee could not be made basis to deprive the Trustees and ultimately the public at large, of the value of the bonds which had, admittedly, been received by the Corporation with unambiguous undertaking to repay back the same. 12. A perusal of the bonds, purchased by the appellants, would indicate that such bonds were termed and styled as "Instrument of Bond in the nature of promissory bond". The Corporation had agreed "to pay on demand to the above named bond-holder or order the sum of ......". In other words the bonds were transferable and respondents undertaking, under a contractual and statutory obligation, to pay the value thereof to the transferee. Such a transferee could not be denied the payment of the value of the bonds on the ground of the liability of the transferor or any of its subsidiary. The perusal of the bond incorporating the condition of payment unambiguously shows that no dispute can be raised by the Corporation for payment of the amount on demand to its holder or order. The claim of the Corporation, if any, can be enforced separately against the subsidiary of the Canara Bank but cannot be made a ground to resist the claim of the appellants. We are of the opinion that the High Court was not right in referring the alleged disputes to the High Powered Committee with the aid of judgment in ONGCs case. It was under an obligation to give a finding with regard to the directions give by the Board to pay the redemption amount to the appellants. The Trustees of the Trust constituted by the Canara Bank as Settlor for the benefit of numerous units holders cannot be termed and styled as Government Company or Public Sector Undertaking. The dispute raised by the respondents with the appellant was imaginary and even prima facie not real. We are further of the opinion that the Board in its order had dealt with all aspects of the matter and rightly concluded that ONGCs judgment was not applicable in the facts and circumstances of the present case. | 1[ds]11. What the Court has directed in ONGCs case is that frivolous litigation between Government Departments and Public Sector Undertakings of the Union of India should not be dragged in the Courts and be amicably resolved by the Committee. The judgment is intended to prevent avoidable litigation between the Government Departments and the Undertakings of the Union of India. In the present litigation there does not appear to be a genuine dispute between the Government of India undertakings. In this case one of the public sector undertaking is shown to be acting not as an undertaking but as Trustee of a Trust. The Board was, therefore, justified in holding "that the real litigation in this case, therefore, is between Mutual Fund and NTPC" and not between the two undertakings. The meaning of word "dispute" is, `a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. In the instant case the claim preferred on behalf of the CBMF was not denied by the Corporation but in turn a counter claim with respect to the liability of a subsidiary of the Bank was raised. The dispute raised is without laying any basis or placing on record any evidence in support thereof. Imaginative disputes raised only to defeat the undisputed claim of the Trustee could not be made basis to deprive the Trustees and ultimately the public at large, of the value of the bonds which had, admittedly, been received by the Corporation with unambiguous undertaking to repay back the same12. A perusal of the bonds, purchased by the appellants, would indicate that such bonds were termed and styled as "Instrument of Bond in the nature of promissory bond". The Corporation had agreed "to pay on demand to the above namedr or order the sum of ......". In other words the bonds were transferable and respondents undertaking, under a contractual and statutory obligation, to pay the value thereof to the transferee. Such a transferee could not be denied the payment of the value of the bonds on the ground of the liability of the transferor or any of its subsidiary. The perusal of the bond incorporating the condition of payment unambiguously shows that no dispute can be raised by the Corporation for payment of the amount on demand to its holder or order. The claim of the Corporation, if any, can be enforced separately against the subsidiary of the Canara Bank but cannot be made a ground to resist the claim of the appellants. We are of the opinion that the High Court was not right in referring the alleged disputes to the High Powered Committee with the aid of judgment in ONGCs case. It was under an obligation to give a finding with regard to the directions give by the Board to pay the redemption amount to the appellants. The Trustees of the Trust constituted by the Canara Bank as Settlor for the benefit of numerous units holders cannot be termed and styled as Government Company or Public Sector Undertaking. The dispute raised by the respondents with the appellant was imaginary and even prima facie not real. We are further of the opinion that the Board in its order had dealt with all aspects of the matter and rightly concluded that ONGCs judgment was not applicable in the facts and circumstances of the present case. | 1 | 2,999 | 618 | ### 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:
facts of the present case. 9. In ONGCs case the Cabinet Secretary was shown to have taken appropriate initiative as per direction of the Court dated 11.9.1991 and reported to the Court that the dispute between the Government Department and the public sector undertaking of the Union of India had been settled. In that view of the matter no further action was taken on the petition. The Cabinet Secretary in his Report had stated : "I would also like to state that the Government respects the views expressed this Honourable Court and has accepted them that public undertakings of Central Government and the Union of India should not fight their litigation in Court by spending money on fees on counsel, Court fees, procedural expenses and wasting public time. It is in this context that the Cabinet Secretary has issued instructions from time to time to all Departments of the Government of India as well as to public undertakings of the Central Government to the effect that all disputes, regardless of the type, should be resolved amicably by mutual consultation or through the goods offices of empowered agencies of the Government or through arbitration and recourse to litigation should be eliminated." 10. In the light of the Report of the Cabinet Secretary this Court directed as under : "We direct that the Government of India shall set up a Committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior Officers only should be nominated so that the Committee would function with status, control and discipline. It shall be the obligation of every Court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with. The Committee shall function under the ultimate control of the Cabinet Secretary but his delegate may look after the matters. This Court would expect a quarterly report about the functioning of this system to be furnished to the Registry beginning from 1.1.1992." 11. What the Court has directed in ONGCs case is that frivolous litigation between Government Departments and Public Sector Undertakings of the Union of India should not be dragged in the Courts and be amicably resolved by the Committee. The judgment is intended to prevent avoidable litigation between the Government Departments and the Undertakings of the Union of India. In the present litigation there does not appear to be a genuine dispute between the Government of India undertakings. In this case one of the public sector undertaking is shown to be acting not as an undertaking but as Trustee of a Trust. The Board was, therefore, justified in holding "that the real litigation in this case, therefore, is between Mutual Fund and NTPC" and not between the two undertakings. The meaning of word "dispute" is, `a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. In the instant case the claim preferred on behalf of the CBMF was not denied by the Corporation but in turn a counter claim with respect to the liability of a subsidiary of the Bank was raised. The dispute raised is without laying any basis or placing on record any evidence in support thereof. Imaginative disputes raised only to defeat the undisputed claim of the Trustee could not be made basis to deprive the Trustees and ultimately the public at large, of the value of the bonds which had, admittedly, been received by the Corporation with unambiguous undertaking to repay back the same. 12. A perusal of the bonds, purchased by the appellants, would indicate that such bonds were termed and styled as "Instrument of Bond in the nature of promissory bond". The Corporation had agreed "to pay on demand to the above named bond-holder or order the sum of ......". In other words the bonds were transferable and respondents undertaking, under a contractual and statutory obligation, to pay the value thereof to the transferee. Such a transferee could not be denied the payment of the value of the bonds on the ground of the liability of the transferor or any of its subsidiary. The perusal of the bond incorporating the condition of payment unambiguously shows that no dispute can be raised by the Corporation for payment of the amount on demand to its holder or order. The claim of the Corporation, if any, can be enforced separately against the subsidiary of the Canara Bank but cannot be made a ground to resist the claim of the appellants. We are of the opinion that the High Court was not right in referring the alleged disputes to the High Powered Committee with the aid of judgment in ONGCs case. It was under an obligation to give a finding with regard to the directions give by the Board to pay the redemption amount to the appellants. The Trustees of the Trust constituted by the Canara Bank as Settlor for the benefit of numerous units holders cannot be termed and styled as Government Company or Public Sector Undertaking. The dispute raised by the respondents with the appellant was imaginary and even prima facie not real. We are further of the opinion that the Board in its order had dealt with all aspects of the matter and rightly concluded that ONGCs judgment was not applicable in the facts and circumstances of the present case.
### Response:
1
### Explanation:
11. What the Court has directed in ONGCs case is that frivolous litigation between Government Departments and Public Sector Undertakings of the Union of India should not be dragged in the Courts and be amicably resolved by the Committee. The judgment is intended to prevent avoidable litigation between the Government Departments and the Undertakings of the Union of India. In the present litigation there does not appear to be a genuine dispute between the Government of India undertakings. In this case one of the public sector undertaking is shown to be acting not as an undertaking but as Trustee of a Trust. The Board was, therefore, justified in holding "that the real litigation in this case, therefore, is between Mutual Fund and NTPC" and not between the two undertakings. The meaning of word "dispute" is, `a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. In the instant case the claim preferred on behalf of the CBMF was not denied by the Corporation but in turn a counter claim with respect to the liability of a subsidiary of the Bank was raised. The dispute raised is without laying any basis or placing on record any evidence in support thereof. Imaginative disputes raised only to defeat the undisputed claim of the Trustee could not be made basis to deprive the Trustees and ultimately the public at large, of the value of the bonds which had, admittedly, been received by the Corporation with unambiguous undertaking to repay back the same12. A perusal of the bonds, purchased by the appellants, would indicate that such bonds were termed and styled as "Instrument of Bond in the nature of promissory bond". The Corporation had agreed "to pay on demand to the above namedr or order the sum of ......". In other words the bonds were transferable and respondents undertaking, under a contractual and statutory obligation, to pay the value thereof to the transferee. Such a transferee could not be denied the payment of the value of the bonds on the ground of the liability of the transferor or any of its subsidiary. The perusal of the bond incorporating the condition of payment unambiguously shows that no dispute can be raised by the Corporation for payment of the amount on demand to its holder or order. The claim of the Corporation, if any, can be enforced separately against the subsidiary of the Canara Bank but cannot be made a ground to resist the claim of the appellants. We are of the opinion that the High Court was not right in referring the alleged disputes to the High Powered Committee with the aid of judgment in ONGCs case. It was under an obligation to give a finding with regard to the directions give by the Board to pay the redemption amount to the appellants. The Trustees of the Trust constituted by the Canara Bank as Settlor for the benefit of numerous units holders cannot be termed and styled as Government Company or Public Sector Undertaking. The dispute raised by the respondents with the appellant was imaginary and even prima facie not real. We are further of the opinion that the Board in its order had dealt with all aspects of the matter and rightly concluded that ONGCs judgment was not applicable in the facts and circumstances of the present case.
|
Thakur Dongar Singh Vs. Dr. Ladli Prasad Bhargava | 2. It was to discharge those mortgage deeds that Guman Singhs widow executed the sale deed in favour of the respondent on 1-8-1951. The very recitals in Ex. P. 2 on which the claim of the appellant depends are tell-tale and seem to have been prepared with an eye on litigation. It is not necessary to set out the contents of the document at length. But it is obvious that it is intended, as the learned Judges of the High Court have rightly held, more for supplying evidence about the preferential claim of Onkar Singh as against Guman Singhs widow Jassabai rather than for making provision for securing the amount due to a creditor. It contains a testamentary disposition by Guman Singh in favour of Onkar Singh of all his properties and makes no provision whatsoever for his wife. It may also be mentioned that Guman Singh had executed a registered will on 8-6-1945 in favour of his wife Jassabia giving absolute powers of disposition in respect of all his properties and its truth and validity cannot be doubted. Admittedly the appellants knowledge of court proceedings was of nearly 50 years; yet this document, which creates a mortgage, was not even on a stamped paper, nor was it registered. It was signed not only by Onkar Singh and Guman Singh but also by one Mangilal, who is described as Mukhtyar Aam of Guman Singh Curiously enough it was to this very Mangilal that the disputes between the parties are said to have been referred for arbitration. The arbitration agreement was executed on 29-2-1952 and the award is said to have been given on 4-3-1952. The suit was filed on 5-3-1952 as one for enforcement of the award and on the same day Onkar Singh appeared and consented to a decree being passed in terms of the award. The indecent haste with which all these proceedings have been gone through shows the collusion between Onkar Singh on the one had and the appellant on the other. That Ex. P. 2 has been executed so as to bear a date before the will in favour of Jassabai and after the 3 mortgages in favour of Razabali by Guman Singh also shows the purpose for which it was executed. Curiously, Mangilal who has signed Ex. P. 2 as the Mukhtyar Aam of Guman Singh and is, therefore, a party to the document, and was also the arbitrator was not examined in Court. It is true that Onkar Singh son as well as his nephew gave evidence on behalf of the appellant but this is one of those cases where the circumstances speak more eloquently than the witnesses.4. There are some other circumstances which makes it clear beyond doubt that this document is a fraudulent one. From 1940 the appellants estate was under the Court of Wards. The appellant gave evidence that he was keeping his accounts in a regular fashion, that they were given to the Court of Wards but have been lost by them. When a persons estate is taken over for management by the Court of Wards all that he receives is an allowance for his maintenance and all his assets and liabilities are taken over and managed by the Court of Wards. So if the transaction between the appellant on the one hand and Guman Singh on the other was entered in the account books of the appellant the Court of Wards would have taken steps to realise those amounts. The appellant gave evidence that on the date of execution of the agreement he paid Rs. 20,000/- from his home though earlier he had stated that Rs. 20,000/- had been paid on various dates before the date of Ex. P.2. In the circumstances neither is possible or probable. He has not even taken any receipts for any of the amounts he claims to have paid. One finds it difficult to believe that sums up to Rs. 32,500/- would have been advanced even without a receipt. One does not understand why he should agree to wait till 1951 for collecting this amount. Though under Ex. P. 2 the interest payable was at 6% per annum the award is for Rs. 41,000 towards principal alone. That means that between 1945 and 1951 the appellant must have advanced a further sum amounting to Rs. 8,500. The interest on Rs. 32,500 alone would by that time have exceeded Rs. 12,000 but the award mentions it as Rs. 5,000 which was to be given up. One fails to understand why the matter should have been left to the arbitrator at all. The whole proceedings are a mere make-believe. We find, therefore, ourselves in agreement with the High Court that the appellant could not have lent money to Guman Singh and the whole proceedings right down from the agreement Ex. P. 2 up to the decree in the suit on the basis of the award are fictitions proceedings.5. We also agree with the High Court that the evidence as to Guman Singh and Onkar Singh being joint is equally worthless and the fact that a number of witness have spoken about their being joint does not establish that they were so joint. After all they were not brothers but only cousins. They were living in two different villages and looking after the lands in those villages separately. Except the mere oral evidence of a few witnesses there is nothing to show that they were in fact joint. And the whole of the proceedings connected with Ex. P. 2 establish beyond doubt that they were brought into existence merely to enable Onkar Singh to claim to property of Guman Singh in collusion with the appellant who was also to be benefit incidentally.6 .This is a case where the circumstances speak more eloquently than the witnesses and the tell-tale recitals in Ex. P. 2 are enough to stamp it as a fraudulent document. In the circumstances, we do not consider it necessary to discuss any points of law. | 0[ds]The dispute between them was referred to arbitration and on the basis of the award given by the arbitrator a decree was obtained and in execution of the decree the disputed house was attached by him and the respondent had no title to it. The Trial Court held that Guman Singh and Onkar Singh were members of a joint Hindu family of which Guman Singh was the karta and that the decree in favour of the appellant was one validly obtained. The High Court on appeal by the respondent took the view that Ext. P. 2 was a collusive document, that the evidence as to Guman Singh and Onkar Singh being joint is equally worthless and highly interested and allowed the appeal, and set aside the judgment of the Trial Court. The plaintiff has, therefore, filed this appeal. We find ourselves in agreement with the learned Judges of the High Court.There are some other circumstances which makes it clear beyond doubt that this document is a fraudulent one. From 1940 the appellants estate was under the Court of Wards. The appellant gave evidence that he was keeping his accounts in a regular fashion, that they were given to the Court of Wards but have been lost by them. When a persons estate is taken over for management by the Court of Wards all that he receives is an allowance for his maintenance and all his assets and liabilities are taken over and managed by the Court of Wards. So if the transaction between the appellant on the one hand and Guman Singh on the other was entered in the account books of the appellant the Court of Wards would have taken steps to realise thosefails to understand why the matter should have been left to the arbitrator at all. The whole proceedings are a mereWe find, therefore, ourselves in agreement with the High Court that the appellant could not have lent money to Guman Singh and the whole proceedings right down from the agreement Ex. P. 2 up to the decree in the suit on the basis of the award are fictitions proceedings.5. We also agree with the High Court that the evidence as to Guman Singh and Onkar Singh being joint is equally worthless and the fact that a number of witness have spoken about their being joint does not establish that they were so joint. After all they were not brothers but only cousins. They were living in two different villages and looking after the lands in those villages separately. Except the mere oral evidence of a few witnesses there is nothing to show that they were in fact joint. And the whole of the proceedings connected with Ex. P. 2 establish beyond doubt that they were brought into existence merely to enable Onkar Singh to claim to property of Guman Singh in collusion with the appellant who was also to be benefit incidentally.6 .This is a case where the circumstances speak more eloquently than the witnesses and therecitals in Ex. P. 2 are enough to stamp it as a fraudulent document. In the circumstances, we do not consider it necessary to discuss any points of law. | 0 | 1,424 | 561 | ### 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:
2. It was to discharge those mortgage deeds that Guman Singhs widow executed the sale deed in favour of the respondent on 1-8-1951. The very recitals in Ex. P. 2 on which the claim of the appellant depends are tell-tale and seem to have been prepared with an eye on litigation. It is not necessary to set out the contents of the document at length. But it is obvious that it is intended, as the learned Judges of the High Court have rightly held, more for supplying evidence about the preferential claim of Onkar Singh as against Guman Singhs widow Jassabai rather than for making provision for securing the amount due to a creditor. It contains a testamentary disposition by Guman Singh in favour of Onkar Singh of all his properties and makes no provision whatsoever for his wife. It may also be mentioned that Guman Singh had executed a registered will on 8-6-1945 in favour of his wife Jassabia giving absolute powers of disposition in respect of all his properties and its truth and validity cannot be doubted. Admittedly the appellants knowledge of court proceedings was of nearly 50 years; yet this document, which creates a mortgage, was not even on a stamped paper, nor was it registered. It was signed not only by Onkar Singh and Guman Singh but also by one Mangilal, who is described as Mukhtyar Aam of Guman Singh Curiously enough it was to this very Mangilal that the disputes between the parties are said to have been referred for arbitration. The arbitration agreement was executed on 29-2-1952 and the award is said to have been given on 4-3-1952. The suit was filed on 5-3-1952 as one for enforcement of the award and on the same day Onkar Singh appeared and consented to a decree being passed in terms of the award. The indecent haste with which all these proceedings have been gone through shows the collusion between Onkar Singh on the one had and the appellant on the other. That Ex. P. 2 has been executed so as to bear a date before the will in favour of Jassabai and after the 3 mortgages in favour of Razabali by Guman Singh also shows the purpose for which it was executed. Curiously, Mangilal who has signed Ex. P. 2 as the Mukhtyar Aam of Guman Singh and is, therefore, a party to the document, and was also the arbitrator was not examined in Court. It is true that Onkar Singh son as well as his nephew gave evidence on behalf of the appellant but this is one of those cases where the circumstances speak more eloquently than the witnesses.4. There are some other circumstances which makes it clear beyond doubt that this document is a fraudulent one. From 1940 the appellants estate was under the Court of Wards. The appellant gave evidence that he was keeping his accounts in a regular fashion, that they were given to the Court of Wards but have been lost by them. When a persons estate is taken over for management by the Court of Wards all that he receives is an allowance for his maintenance and all his assets and liabilities are taken over and managed by the Court of Wards. So if the transaction between the appellant on the one hand and Guman Singh on the other was entered in the account books of the appellant the Court of Wards would have taken steps to realise those amounts. The appellant gave evidence that on the date of execution of the agreement he paid Rs. 20,000/- from his home though earlier he had stated that Rs. 20,000/- had been paid on various dates before the date of Ex. P.2. In the circumstances neither is possible or probable. He has not even taken any receipts for any of the amounts he claims to have paid. One finds it difficult to believe that sums up to Rs. 32,500/- would have been advanced even without a receipt. One does not understand why he should agree to wait till 1951 for collecting this amount. Though under Ex. P. 2 the interest payable was at 6% per annum the award is for Rs. 41,000 towards principal alone. That means that between 1945 and 1951 the appellant must have advanced a further sum amounting to Rs. 8,500. The interest on Rs. 32,500 alone would by that time have exceeded Rs. 12,000 but the award mentions it as Rs. 5,000 which was to be given up. One fails to understand why the matter should have been left to the arbitrator at all. The whole proceedings are a mere make-believe. We find, therefore, ourselves in agreement with the High Court that the appellant could not have lent money to Guman Singh and the whole proceedings right down from the agreement Ex. P. 2 up to the decree in the suit on the basis of the award are fictitions proceedings.5. We also agree with the High Court that the evidence as to Guman Singh and Onkar Singh being joint is equally worthless and the fact that a number of witness have spoken about their being joint does not establish that they were so joint. After all they were not brothers but only cousins. They were living in two different villages and looking after the lands in those villages separately. Except the mere oral evidence of a few witnesses there is nothing to show that they were in fact joint. And the whole of the proceedings connected with Ex. P. 2 establish beyond doubt that they were brought into existence merely to enable Onkar Singh to claim to property of Guman Singh in collusion with the appellant who was also to be benefit incidentally.6 .This is a case where the circumstances speak more eloquently than the witnesses and the tell-tale recitals in Ex. P. 2 are enough to stamp it as a fraudulent document. In the circumstances, we do not consider it necessary to discuss any points of law.
### Response:
0
### Explanation:
The dispute between them was referred to arbitration and on the basis of the award given by the arbitrator a decree was obtained and in execution of the decree the disputed house was attached by him and the respondent had no title to it. The Trial Court held that Guman Singh and Onkar Singh were members of a joint Hindu family of which Guman Singh was the karta and that the decree in favour of the appellant was one validly obtained. The High Court on appeal by the respondent took the view that Ext. P. 2 was a collusive document, that the evidence as to Guman Singh and Onkar Singh being joint is equally worthless and highly interested and allowed the appeal, and set aside the judgment of the Trial Court. The plaintiff has, therefore, filed this appeal. We find ourselves in agreement with the learned Judges of the High Court.There are some other circumstances which makes it clear beyond doubt that this document is a fraudulent one. From 1940 the appellants estate was under the Court of Wards. The appellant gave evidence that he was keeping his accounts in a regular fashion, that they were given to the Court of Wards but have been lost by them. When a persons estate is taken over for management by the Court of Wards all that he receives is an allowance for his maintenance and all his assets and liabilities are taken over and managed by the Court of Wards. So if the transaction between the appellant on the one hand and Guman Singh on the other was entered in the account books of the appellant the Court of Wards would have taken steps to realise thosefails to understand why the matter should have been left to the arbitrator at all. The whole proceedings are a mereWe find, therefore, ourselves in agreement with the High Court that the appellant could not have lent money to Guman Singh and the whole proceedings right down from the agreement Ex. P. 2 up to the decree in the suit on the basis of the award are fictitions proceedings.5. We also agree with the High Court that the evidence as to Guman Singh and Onkar Singh being joint is equally worthless and the fact that a number of witness have spoken about their being joint does not establish that they were so joint. After all they were not brothers but only cousins. They were living in two different villages and looking after the lands in those villages separately. Except the mere oral evidence of a few witnesses there is nothing to show that they were in fact joint. And the whole of the proceedings connected with Ex. P. 2 establish beyond doubt that they were brought into existence merely to enable Onkar Singh to claim to property of Guman Singh in collusion with the appellant who was also to be benefit incidentally.6 .This is a case where the circumstances speak more eloquently than the witnesses and therecitals in Ex. P. 2 are enough to stamp it as a fraudulent document. In the circumstances, we do not consider it necessary to discuss any points of law.
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Habib Ibrahim Vs. State of Rajasthan | class or description of foreigner, for prohibiting regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.(2) In particular and without prejudice to the generality of the foregoing power, orders made under this Section may provide that the foreigner-(a) shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;(b) shall not depart from India or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;(c) shall not remain in India or in any prescribed area therein;(cc) shall, if he has been required by order under this Section not remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal.(d) shall remove himself to, and remain in, such area in India as may be prescribed;(e) shall comply with such conditions as may be prescribed or specified-i. requiring him to reside in a particular place;ii. imposing any restrictions on his movements;iii. requiring him to furnish such proof of his identify and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;iv. requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;v. requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;vi. prohibiting him from association with persons of a prescribed or specified description;vii. prohibiting him from engaging in activities of a prescribed or specified description;viii. prohibiting him from using or possessing prescribed or specified articles;ix. otherwise regulating his conduct in any such particular as may be prescribed or specified;(f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;(g) shall be arrested and detained or confined;and may make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect of this Act.3. Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) [for class (f) of sub section (2)].Section 13. Attempts etc., to contravene the provisions of this Act, etc. - (1) Any person who attempts to contravene or abets or attempts to abet or does any act preparatory to a contravention of the provisions of this Act or of any order made or direction given thereunder, or fails to comply with any direction given in pursuance of any such order, shall be deemed to have contravened the provisions of this Act.(2) Any person who, knowing or having reasonable cause to believe that any other person has contravened the provisions of that Act or of any order made or direction given thereunder, gives that other person any assistance with intent thereby to prevent, hinder or otherwise interfere with his arrest, trial or punishment for the said contravention shall be deemed to have abetted that contravention.(3) The master of any vessel or the pilot of any aircraft, as the case may be, by means of which any foreigner enters or leaves India in contravention of any order made under or direction given in pursuance of, Section 3 shall, unless he proves that he exercised all due diligence to prevent the said contravention, be deemed to have contravened this Act.14. Penalties - If any persons contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person has entered into a bond in pursuance of clause (f) of sub-section (2) of Section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting court why such penalty should not be paid." 7. Prosecution evidence clearly establishes that the appellant did not have passport to stay in India. This fact is not disputed by the appellant. The only plea to justify his presence was that he had come to visit his wife and children. As rightly noted by the courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. The only plea to justify his presence was that he had come to visit his wife and children. That does not give any right to him to stay illegally in India. As rightly noted by the courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. Therefore Section 3 read with Section 14 of the Act have been rightly applied. The conviction therefore cannot be faulted. So far as the sentence is concerned, considering the large number of infiltrators come to India without valid document, there is need for imposing stricter sentence. The reasons given by the appellant to justify his presence in India have hardly any substance. Appellants feeble plea that he did not know that he is required to be in possession of valid document is without substance. Otherwise, he would not have obtained any transit visa for Nepal. | 0[ds]7. Prosecution evidence clearly establishes that the appellant did not have passport to stay in India. This fact is not disputed by the appellant. The only plea to justify his presence was that he had come to visit his wife and children. As rightly noted by the courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. The only plea to justify his presence was that he had come to visit his wife and children. That does not give any right to him to stay illegally in India. As rightly noted by the courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. Therefore Section 3 read with Section 14 of the Act have been rightly applied. The conviction therefore cannot be faulted. So far as the sentence is concerned, considering the large number of infiltrators come to India without valid document, there is need for imposing stricter sentence. The reasons given by the appellant to justify his presence in India have hardly any substance. Appellants feeble plea that he did not know that he is required to be in possession of valid document is without substance. Otherwise, he would not have obtained any transit visa for Nepal. | 0 | 1,857 | 272 | ### 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:
class or description of foreigner, for prohibiting regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.(2) In particular and without prejudice to the generality of the foregoing power, orders made under this Section may provide that the foreigner-(a) shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;(b) shall not depart from India or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;(c) shall not remain in India or in any prescribed area therein;(cc) shall, if he has been required by order under this Section not remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal.(d) shall remove himself to, and remain in, such area in India as may be prescribed;(e) shall comply with such conditions as may be prescribed or specified-i. requiring him to reside in a particular place;ii. imposing any restrictions on his movements;iii. requiring him to furnish such proof of his identify and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;iv. requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;v. requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;vi. prohibiting him from association with persons of a prescribed or specified description;vii. prohibiting him from engaging in activities of a prescribed or specified description;viii. prohibiting him from using or possessing prescribed or specified articles;ix. otherwise regulating his conduct in any such particular as may be prescribed or specified;(f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;(g) shall be arrested and detained or confined;and may make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect of this Act.3. Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) [for class (f) of sub section (2)].Section 13. Attempts etc., to contravene the provisions of this Act, etc. - (1) Any person who attempts to contravene or abets or attempts to abet or does any act preparatory to a contravention of the provisions of this Act or of any order made or direction given thereunder, or fails to comply with any direction given in pursuance of any such order, shall be deemed to have contravened the provisions of this Act.(2) Any person who, knowing or having reasonable cause to believe that any other person has contravened the provisions of that Act or of any order made or direction given thereunder, gives that other person any assistance with intent thereby to prevent, hinder or otherwise interfere with his arrest, trial or punishment for the said contravention shall be deemed to have abetted that contravention.(3) The master of any vessel or the pilot of any aircraft, as the case may be, by means of which any foreigner enters or leaves India in contravention of any order made under or direction given in pursuance of, Section 3 shall, unless he proves that he exercised all due diligence to prevent the said contravention, be deemed to have contravened this Act.14. Penalties - If any persons contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person has entered into a bond in pursuance of clause (f) of sub-section (2) of Section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting court why such penalty should not be paid." 7. Prosecution evidence clearly establishes that the appellant did not have passport to stay in India. This fact is not disputed by the appellant. The only plea to justify his presence was that he had come to visit his wife and children. As rightly noted by the courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. The only plea to justify his presence was that he had come to visit his wife and children. That does not give any right to him to stay illegally in India. As rightly noted by the courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. Therefore Section 3 read with Section 14 of the Act have been rightly applied. The conviction therefore cannot be faulted. So far as the sentence is concerned, considering the large number of infiltrators come to India without valid document, there is need for imposing stricter sentence. The reasons given by the appellant to justify his presence in India have hardly any substance. Appellants feeble plea that he did not know that he is required to be in possession of valid document is without substance. Otherwise, he would not have obtained any transit visa for Nepal.
### Response:
0
### Explanation:
7. Prosecution evidence clearly establishes that the appellant did not have passport to stay in India. This fact is not disputed by the appellant. The only plea to justify his presence was that he had come to visit his wife and children. As rightly noted by the courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. The only plea to justify his presence was that he had come to visit his wife and children. That does not give any right to him to stay illegally in India. As rightly noted by the courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. Therefore Section 3 read with Section 14 of the Act have been rightly applied. The conviction therefore cannot be faulted. So far as the sentence is concerned, considering the large number of infiltrators come to India without valid document, there is need for imposing stricter sentence. The reasons given by the appellant to justify his presence in India have hardly any substance. Appellants feeble plea that he did not know that he is required to be in possession of valid document is without substance. Otherwise, he would not have obtained any transit visa for Nepal.
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Garikapati Veerayya Vs. Nannapaneni Subbayya Chowdhary & Others | Court that since respondent No. 1 had made a clear, categorical and specific case in that behalf, it was not open to him to give up that case and to contend in the alternative that even if he had not the cash ready with him, he could have easily raised the said amount. Umamaheswaram, J.,. thought that if such a new plea was allowed to be raised in the appeal for the first time, it would be unfair to the appellant, whereas Subba Rao, C.J., took the view that the approach adopted by the trial Court was wrong and that, in law it was open to respondent No. 1 to prove that he could have raised the said amount at the relevant time. In our opinion, the view taken by Umamaheswaram, J., is right. Subba Rao, C.J., appears to have ignored the specific plea made by the respondents in their plaint. He has not noticed the fact that the plaint did not make any averment as it should have about the respondents readiness and willingness to perform their part of the contract, and the only allegation made in that behalf was that respondent No. 1 had the necessary cash at all material times. That being so, it would not be right, we think, with respect, to hold that the trial Court was bound to enquire whether respondent No. 1 could have raised the said amount. It was open to respondent No. 1 to make that plea and then the trial Court could certainly have considered it. But if the first respondent made out a much higher claim and suggested that he would prove that he had the necessary amount in his possession it would not be right to find fault with the trial Court if it considered that plea in the light of the evidence adduced by the respondent in its support and on the merits, rejected it. The finding of the trial Judge on the merits is unexceptionable and has not been dissented from in the High Court. The only question which calls for our decision, therefore, is whether the Appeal Court should have allowed the respondents to make out a new plea of fact for the first time in appeal. In dealing with tins question, we must have regard to the pleadings made by the parties on the point. and as we have already indicated, the pleas made by the respondents and the evidence led on their behalf unmistakably indicate that their case was that cash was ready in the hands of respondent No. 1 and respondent No. 1 was willing to pay it to the appellant at all material times.17. Besides, there are some general considerations which are inconsistent with the view taken by the majority of the Judges in the High Court. If respondent No. 1 had the necessary amount ready in his possession, it is very unlikely that the would keep it with himself and not pay it to the appellant, because a fairly large amount lying idle with him carried no interest, whereas non-payment of the said amount to the appellant involved the liability of respondent No. 1 to pay interest. That is one consideration which is inconsistent with the case of the respondents.18. The other consideration which has not been duly taken into account by the High Court is the conduct of respondent No. 1 in depositing the amount on 24th November, 1948, with his lawyer. This deposit was made after respondent No 1 received Rs. 6,900 from respondent No. 2 on 22nd November, 1948. It is not without significance that respondent No. 1 who claims to have had the balance ready with him during the whole of the period, has had to agree to sell the property to respondent No. 2 even before a conveyance was executed in his favour and as the trial Court has observed, and rightly, there is every reason to believe that it is out of the amount of Rs. 6,900 paid by respondent No. 2 to respondent No 1 that the deposit came to be made on 24th November, 1948.19. In this connection, the demand made by respondent No. 1 on the appellant to produce evidence about the discharge of the prior mortgage also throws some light The respondents solemnly impleaded defendant No. 2 in the present suit on the plea that defendant No. 2 was setting up a claim in respect of the property in question and when defendant No. 2 denied that he made any conflicting statements they told the trial Court that they did not press that part of their case. It is unnecessary to consider the evidence led by the parties on this part of the case, but we cannot help observing that the trial Court appears, on the whole to be right in coming to the conclusion that respondent No. 1 invented this requisition in order to gain time; otherwise it is not easy to understand how without satisfying himself that the prior mortgage had been discharged, he agreed to convey a good title to respondent No. 2 and how at the trial, both the respondents agreed to take a document from the appellant without adjudication about the said alleged claims of the prior mortgagee. Those general considerations in our opinion, lend strong support to the view taken by the trial Court that respondent No. 1 did not passes the necessary cash, and so, could not succeed in the present suit for specific performance. If respondent No. 2 had pleaded at the trial that he would have been able to raise the necessary amount, the appellant would have had an opportunity to meet that case; but since no such Plea was made at the trial, it was not open to him to raise this point for the first time in appeal. Therefore, we are satisfied that the High Court erred in entertaining this plea and allowing the respondents claim for specific performance on the ground that the said plea had been established. | 1[ds]Since we have come to the conclusion that the trial Court was right in holding that respondent No 1 has not shown that he was ready and willing to perform his part of the contract we do not think it necessary to consider the other issue as to the validity of the rescussion of the contract. There is no doubt that in a suit for specific performance the plaintiff must show that he was ready and willing to perform his part of theIt is true that the issue which was framed in this behalf was a general issue about the readiness and willingness of the first respondent to perform his part of the contract, but the allegation made in the plaint was more precise, concrete and narrow; it was that the first respondent had kept ready with him the whole of the balance due to be paid to the appellant. It is significant that when respondent No. 1 gave evidence he sought to support this narrow, specific and clear case. He stated on oath that he hadand he had told the appellant that the money was ready with him and that he would pay it to him immediately if only the appellant was willing to execute the document. According to his evidence, by the first week of March, he had kept the balance ready with him. It is thus clear that the parties went to trial on this issue by reference to the narrow case made by respondent No. 1 that he had the balance ready with him from March, 1948. The trial Court examined the whole of the evidence, oral and documentary, led by respondent No. 1 in support of his plea and came to the conclusion that he did not have the necessary money till 23rd November, 1948 to perform his part of the contract, and so, in order to cover up his inability to produce that amount, he made unreasonable demands on the appellant by calling upon him to produce satisfactory evidence about the discharge of the prior mortgage. It may be stated at this stage that though the respondents impleaded defendant No. 2 on a specific plea that defendant No. 2 was making contrary claims on the strength of the prior mortgage, at the trial they gave up that plea and offered to have thewithout any proof about the satisfaction of the said earlier mortgage.16. When the appeal was argued before the High Court, it does not appear to have been urged by the respondents that the finding of the trial Court on the narrow point raised before it was wrong. In fact, though there was a difference of opinion between Subba Rao, C.J. and Umamaheswaram, J., on other points raised in the appeal, all the three learned Judges who heard the appeal in the High Court have not differed from the finding of the trial Court that respondent No. 1 had failed to prove his plea that he had the balance ready with him since March, 1948. The difference arose on the question as to whether it was essential that respondent No. 1 must prove that he had the cash with him, or whether it would be enough if he showed that he could have raised the necessary amount at all material times. On this point, Umamaheswaram, J., held agreeing with the trial Court that since respondent No. 1 had made a clear, categorical and specific case in that behalf, it was not open to him to give up that case and to contend in the alternative that even if he had not the cash ready with him, he could have easily raised the said amount. Umamaheswaram, J.,. thought that if such a new plea was allowed to be raised in the appeal for the first time, it would be unfair to the appellant, whereas Subba Rao, C.J., took the view that the approach adopted by the trial Court was wrong and that, in law it was open to respondent No. 1 to prove that he could have raised the said amount at the relevant time. In our opinion, the view taken by Umamaheswaram, J., is right. Subba Rao, C.J., appears to have ignored the specific plea made by the respondents in their plaint. He has not noticed the fact that the plaint did not make any averment as it should have about the respondents readiness and willingness to perform their part of the contract, and the only allegation made in that behalf was that respondent No. 1 had the necessary cash at all material times. That being so, it would not be right, we think, with respect, to hold that the trial Court was bound to enquire whether respondent No. 1 could have raised the said amount. It was open to respondent No. 1 to make that plea and then the trial Court could certainly have considered it. But if the first respondent made out a much higher claim and suggested that he would prove that he had the necessary amount in his possession it would not be right to find fault with the trial Court if it considered that plea in the light of the evidence adduced by the respondent in its support and on the merits, rejected it. The finding of the trial Judge on the merits is unexceptionable and has not been dissented from in the Highdealing with tins question, we must have regard to the pleadings made by the parties on the point. and as we have already indicated, the pleas made by the respondents and the evidence led on their behalf unmistakably indicate that their case was that cash was ready in the hands of respondent No. 1 and respondent No. 1 was willing to pay it to the appellant at all material times.17. Besides, there are some general considerations which are inconsistent with the view taken by the majority of the Judges in the High Court. If respondent No. 1 had the necessary amount ready in his possession, it is very unlikely that the would keep it with himself and not pay it to the appellant, because a fairly large amount lying idle with him carried no interest, whereasof the said amount to the appellant involved the liability of respondent No. 1 to pay interest. That is one consideration which is inconsistent with the case of the respondents.18. The other consideration which has not been duly taken into account by the High Court is the conduct of respondent No. 1 in depositing the amount on 24th November, 1948, with his lawyer. This deposit was made after respondent No 1 received Rs. 6,900 from respondent No. 2 on 22nd November, 1948. It is not without significance that respondent No. 1 who claims to have had the balance ready with him during the whole of the period, has had to agree to sell the property to respondent No. 2 even before a conveyance was executed in his favour and as the trial Court has observed, and rightly, there is every reason to believe that it is out of the amount of Rs. 6,900 paid by respondent No. 2 to respondent No 1 that the deposit came to be made on 24th November, 1948.19. In this connection, the demand made by respondent No. 1 on the appellant to produce evidence about the discharge of the prior mortgage also throws some light The respondents solemnly impleaded defendant No. 2 in the present suit on the plea that defendant No. 2 was setting up a claim in respect of the property in question and when defendant No. 2 denied that he made any conflicting statements they told the trial Court that they did not press that part of their case. It is unnecessary to consider the evidence led by the parties on this part of the case, but we cannot help observing that the trial Court appears, on the whole to be right in coming to the conclusion that respondent No. 1 invented this requisition in order to gain time; otherwise it is not easy to understand how without satisfying himself that the prior mortgage had been discharged, he agreed to convey a good title to respondent No. 2 and how at the trial, both the respondents agreed to take a document from the appellant without adjudication about the said alleged claims of the prior mortgagee. Those general considerations in our opinion, lend strong support to the view taken by the trial Court that respondent No. 1 did not passes the necessary cash, and so, could not succeed in the present suit for specific performance. If respondent No. 2 had pleaded at the trial that he would have been able to raise the necessary amount, the appellant would have had an opportunity to meet that case; but since no such Plea was made at the trial, it was not open to him to raise this point for the first time in appeal. Therefore, we are satisfied that the High Court erred in entertaining this plea and allowing the respondents claim for specific performance on the ground that the said plea had been established. | 1 | 4,012 | 1,662 | ### 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:
Court that since respondent No. 1 had made a clear, categorical and specific case in that behalf, it was not open to him to give up that case and to contend in the alternative that even if he had not the cash ready with him, he could have easily raised the said amount. Umamaheswaram, J.,. thought that if such a new plea was allowed to be raised in the appeal for the first time, it would be unfair to the appellant, whereas Subba Rao, C.J., took the view that the approach adopted by the trial Court was wrong and that, in law it was open to respondent No. 1 to prove that he could have raised the said amount at the relevant time. In our opinion, the view taken by Umamaheswaram, J., is right. Subba Rao, C.J., appears to have ignored the specific plea made by the respondents in their plaint. He has not noticed the fact that the plaint did not make any averment as it should have about the respondents readiness and willingness to perform their part of the contract, and the only allegation made in that behalf was that respondent No. 1 had the necessary cash at all material times. That being so, it would not be right, we think, with respect, to hold that the trial Court was bound to enquire whether respondent No. 1 could have raised the said amount. It was open to respondent No. 1 to make that plea and then the trial Court could certainly have considered it. But if the first respondent made out a much higher claim and suggested that he would prove that he had the necessary amount in his possession it would not be right to find fault with the trial Court if it considered that plea in the light of the evidence adduced by the respondent in its support and on the merits, rejected it. The finding of the trial Judge on the merits is unexceptionable and has not been dissented from in the High Court. The only question which calls for our decision, therefore, is whether the Appeal Court should have allowed the respondents to make out a new plea of fact for the first time in appeal. In dealing with tins question, we must have regard to the pleadings made by the parties on the point. and as we have already indicated, the pleas made by the respondents and the evidence led on their behalf unmistakably indicate that their case was that cash was ready in the hands of respondent No. 1 and respondent No. 1 was willing to pay it to the appellant at all material times.17. Besides, there are some general considerations which are inconsistent with the view taken by the majority of the Judges in the High Court. If respondent No. 1 had the necessary amount ready in his possession, it is very unlikely that the would keep it with himself and not pay it to the appellant, because a fairly large amount lying idle with him carried no interest, whereas non-payment of the said amount to the appellant involved the liability of respondent No. 1 to pay interest. That is one consideration which is inconsistent with the case of the respondents.18. The other consideration which has not been duly taken into account by the High Court is the conduct of respondent No. 1 in depositing the amount on 24th November, 1948, with his lawyer. This deposit was made after respondent No 1 received Rs. 6,900 from respondent No. 2 on 22nd November, 1948. It is not without significance that respondent No. 1 who claims to have had the balance ready with him during the whole of the period, has had to agree to sell the property to respondent No. 2 even before a conveyance was executed in his favour and as the trial Court has observed, and rightly, there is every reason to believe that it is out of the amount of Rs. 6,900 paid by respondent No. 2 to respondent No 1 that the deposit came to be made on 24th November, 1948.19. In this connection, the demand made by respondent No. 1 on the appellant to produce evidence about the discharge of the prior mortgage also throws some light The respondents solemnly impleaded defendant No. 2 in the present suit on the plea that defendant No. 2 was setting up a claim in respect of the property in question and when defendant No. 2 denied that he made any conflicting statements they told the trial Court that they did not press that part of their case. It is unnecessary to consider the evidence led by the parties on this part of the case, but we cannot help observing that the trial Court appears, on the whole to be right in coming to the conclusion that respondent No. 1 invented this requisition in order to gain time; otherwise it is not easy to understand how without satisfying himself that the prior mortgage had been discharged, he agreed to convey a good title to respondent No. 2 and how at the trial, both the respondents agreed to take a document from the appellant without adjudication about the said alleged claims of the prior mortgagee. Those general considerations in our opinion, lend strong support to the view taken by the trial Court that respondent No. 1 did not passes the necessary cash, and so, could not succeed in the present suit for specific performance. If respondent No. 2 had pleaded at the trial that he would have been able to raise the necessary amount, the appellant would have had an opportunity to meet that case; but since no such Plea was made at the trial, it was not open to him to raise this point for the first time in appeal. Therefore, we are satisfied that the High Court erred in entertaining this plea and allowing the respondents claim for specific performance on the ground that the said plea had been established.
### Response:
1
### Explanation:
that he had the cash with him, or whether it would be enough if he showed that he could have raised the necessary amount at all material times. On this point, Umamaheswaram, J., held agreeing with the trial Court that since respondent No. 1 had made a clear, categorical and specific case in that behalf, it was not open to him to give up that case and to contend in the alternative that even if he had not the cash ready with him, he could have easily raised the said amount. Umamaheswaram, J.,. thought that if such a new plea was allowed to be raised in the appeal for the first time, it would be unfair to the appellant, whereas Subba Rao, C.J., took the view that the approach adopted by the trial Court was wrong and that, in law it was open to respondent No. 1 to prove that he could have raised the said amount at the relevant time. In our opinion, the view taken by Umamaheswaram, J., is right. Subba Rao, C.J., appears to have ignored the specific plea made by the respondents in their plaint. He has not noticed the fact that the plaint did not make any averment as it should have about the respondents readiness and willingness to perform their part of the contract, and the only allegation made in that behalf was that respondent No. 1 had the necessary cash at all material times. That being so, it would not be right, we think, with respect, to hold that the trial Court was bound to enquire whether respondent No. 1 could have raised the said amount. It was open to respondent No. 1 to make that plea and then the trial Court could certainly have considered it. But if the first respondent made out a much higher claim and suggested that he would prove that he had the necessary amount in his possession it would not be right to find fault with the trial Court if it considered that plea in the light of the evidence adduced by the respondent in its support and on the merits, rejected it. The finding of the trial Judge on the merits is unexceptionable and has not been dissented from in the Highdealing with tins question, we must have regard to the pleadings made by the parties on the point. and as we have already indicated, the pleas made by the respondents and the evidence led on their behalf unmistakably indicate that their case was that cash was ready in the hands of respondent No. 1 and respondent No. 1 was willing to pay it to the appellant at all material times.17. Besides, there are some general considerations which are inconsistent with the view taken by the majority of the Judges in the High Court. If respondent No. 1 had the necessary amount ready in his possession, it is very unlikely that the would keep it with himself and not pay it to the appellant, because a fairly large amount lying idle with him carried no interest, whereasof the said amount to the appellant involved the liability of respondent No. 1 to pay interest. That is one consideration which is inconsistent with the case of the respondents.18. The other consideration which has not been duly taken into account by the High Court is the conduct of respondent No. 1 in depositing the amount on 24th November, 1948, with his lawyer. This deposit was made after respondent No 1 received Rs. 6,900 from respondent No. 2 on 22nd November, 1948. It is not without significance that respondent No. 1 who claims to have had the balance ready with him during the whole of the period, has had to agree to sell the property to respondent No. 2 even before a conveyance was executed in his favour and as the trial Court has observed, and rightly, there is every reason to believe that it is out of the amount of Rs. 6,900 paid by respondent No. 2 to respondent No 1 that the deposit came to be made on 24th November, 1948.19. In this connection, the demand made by respondent No. 1 on the appellant to produce evidence about the discharge of the prior mortgage also throws some light The respondents solemnly impleaded defendant No. 2 in the present suit on the plea that defendant No. 2 was setting up a claim in respect of the property in question and when defendant No. 2 denied that he made any conflicting statements they told the trial Court that they did not press that part of their case. It is unnecessary to consider the evidence led by the parties on this part of the case, but we cannot help observing that the trial Court appears, on the whole to be right in coming to the conclusion that respondent No. 1 invented this requisition in order to gain time; otherwise it is not easy to understand how without satisfying himself that the prior mortgage had been discharged, he agreed to convey a good title to respondent No. 2 and how at the trial, both the respondents agreed to take a document from the appellant without adjudication about the said alleged claims of the prior mortgagee. Those general considerations in our opinion, lend strong support to the view taken by the trial Court that respondent No. 1 did not passes the necessary cash, and so, could not succeed in the present suit for specific performance. If respondent No. 2 had pleaded at the trial that he would have been able to raise the necessary amount, the appellant would have had an opportunity to meet that case; but since no such Plea was made at the trial, it was not open to him to raise this point for the first time in appeal. Therefore, we are satisfied that the High Court erred in entertaining this plea and allowing the respondents claim for specific performance on the ground that the said plea had been established.
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ISHA DISTRIBUTION HOUSE PVT LTD Vs. ADITYA BIRLA NUVO LTD AND ANR | application and sought leave to file the civil suit as required under Clause 12 of the Letters Patent Act, 1865. The Single Judge by order dated 18.03.2016 granted leave to the appellant as prayed for.. 8. The respondents, on entering their appearance in the suit, filed an application and prayed therein for revocation of the leave granted to the appellant (plaintiff) for filing a civil suit by order dated 18.03.2016. 9. The respondents¬defendants, in substance, sought revocation of leave on the ground that since no part of cause of action arose within the territorial jurisdiction of the Calcutta High Court but it arose at Bangalore and hence the civil suit could not have been filed in Calcutta High Court for want of territorial jurisdiction. It was, therefore, prayed that the leave granted to the appellant to file and prosecute the civil suit in the Calcutta High Court(original side) is liable to be revoked. 10. The appellant (plaintiff) also filed their reply and contested the said application. By order dated 28.07.2016, the Single Judge allowed the application of the respondents(defendants) and revoked the leave. The appellant felt aggrieved and filed an appeal before the Division Bench of the High Court. By impugned order, the Division Bench dismissed the appeal and affirmed the order of the Single Judge, which has given rise to filing of this appeal by way of special leave by the appellant(plaintiff) in this Court. 11. So, the short question, which arises for consideration in this appeal, is whether the High Court (Single Judge and Division Bench) was justified in allowing the respondents? (defendants?) application and thereby was justified in revoking the leave granted to the appellant (plaintiff) by order dated 18.03.2016. 12. Heard Mr. K.V. Vishwanathan, learned senior counsel for the appellant and Mr. Dhruv Mehta, learned senior counsel and Mr. Rajesh Singh Chauhan, learned counsel for the respondents. 13. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the parties, we are inclined to allow these appeals and while setting aside the impugned order and the order of the Single Judge dated 28.07.2016, remand the case to the Single Judge for deciding the issue in question afresh in accordance with law as directed hereinbelow. 14. The question arose as far back as in the year 1932 before the Calcutta High Court in the case of Secretary of State vs. Golabrai Paliram (AIR 1932 Calcutta 146) as to how the Court should approach the application for revocation of leave when it filed in a civil suit. 15. Justice Rankin, learned the then Chief Justice, laid down the following principle of law in the case while answering this question in the following words at page 147:?I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under clause 12 of the Letters Patent and to take the plaint off the file. Normally it is well settled that the proper way to plead to the jurisdiction of the court is to take the plea in the written statement and as a substantive part of the defence. Except in the clearest cases that should be the course.?16. This question came up for consideration before this Court in Indian Mineral & Chemicals Co. & Ors. vs. Deutsche Bank [(2004) 12 SCC 376] . The learned Judge Ruma Paul J. speaking for the Bench in Para 15 approved the law laid down in Secretary of State (supra) as laying down the correct principle of law and observed as under:"15. The observations of Rankin, C.J. in Secy. of State v. Golabrai Paliram correctly represents the law as to how the Court should approach an application for revocation of leave: (AIR p. 147)?I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under clause 12 of the Letters Patent and to take the plaint off the file. Normally it is well settled that the proper way to plead to the jurisdiction of the court is to take the plea in the written statement and as a substantive part of the defence. Except in the clearest cases that should be the course.?17. In other words, the law laid down in Secretary of State (supra) by the Calcutta High Court is now the law laid down by this Court in view of its affirmation by this Court in Indian Mineral & Chemicals Co. (supra). 18. Coming now to the facts of this case, since in this case the respondents did not file any written statement and instead raised the plea of territorial jurisdiction by filing the application for revocation of leave, in our view, the High Court should not have entertained the said application and instead should have granted liberty to the respondents(defendants) to file the written statement in the suit and to raise therein a plea of territorial jurisdiction of the Court. 19. An issue of such nature, in our view, cannot be tried by filing an application for revocation of leave. Indeed, this is what Rankin, the then CJ., held for the Bench in Secretary of State (supra) and which received approval of this Court in Indian Mineral & Chemicals Co.(supra). 20. In our opinion, a plea of territorial jurisdiction is essentially a mixed question of law and fact. It is for this reason, the respondents(defendants) should be allowed to raise such plea in the written statement to enable the Court to try it on its merits in accordance with law in the light of the requirements of Order 14 of the Code of Civil Procedure, 1908 and other relevant provisions governing the issue on merits. 21. Learned counsel for the respondents cited several decisions in support of his submissions. Having gone through them, we are of the opinion that these decisions are distinguishable in the light of the law laid down by this Court in Indian Mineral & Chemicals Co. (supra). | 1[ds]13. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the parties, we are inclined to allow these appeals and while setting aside the impugned order and the order of the Single Judge dated 28.07.2016, remand the case to the Single Judge for deciding the issue in question afresh in accordance with law as directed hereinbelow.In other words, the law laid down in Secretary of State (supra) by the Calcutta High Court is now the law laid down by this Court in view of its affirmation by this Court in Indian Mineral & Chemicals Co. (supra).Coming now to the facts of this case, since in this case the respondents did not file any written statement and instead raised the plea of territorial jurisdiction by filing the application for revocation of leave, in our view, the High Court should not have entertained the said application and instead should have granted liberty to the respondents(defendants) to file the written statement in the suit and to raise therein a plea of territorial jurisdiction of the Court.An issue of such nature, in our view, cannot be tried by filing an application for revocation of leave. Indeed, this is what Rankin, the then CJ., held for the Bench in Secretary of State (supra) and which received approval of this Court in Indian Mineral & Chemicals Co.(supra).In our opinion, a plea of territorial jurisdiction is essentially a mixed question of law and fact. It is for this reason, the respondents(defendants) should be allowed to raise such plea in the written statement to enable the Court to try it on its merits in accordance with law in the light of the requirements of Order 14 of the Code of Civil Procedure, 1908 and other relevant provisions governing the issue on merits.Learned counsel for the respondents cited several decisions in support of his submissions. Having gone through them, we are of the opinion that these decisions are distinguishable in the light of the law laid down by this Court in Indian Mineral & Chemicals Co. (supra). | 1 | 1,350 | 396 | ### Instruction:
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application and sought leave to file the civil suit as required under Clause 12 of the Letters Patent Act, 1865. The Single Judge by order dated 18.03.2016 granted leave to the appellant as prayed for.. 8. The respondents, on entering their appearance in the suit, filed an application and prayed therein for revocation of the leave granted to the appellant (plaintiff) for filing a civil suit by order dated 18.03.2016. 9. The respondents¬defendants, in substance, sought revocation of leave on the ground that since no part of cause of action arose within the territorial jurisdiction of the Calcutta High Court but it arose at Bangalore and hence the civil suit could not have been filed in Calcutta High Court for want of territorial jurisdiction. It was, therefore, prayed that the leave granted to the appellant to file and prosecute the civil suit in the Calcutta High Court(original side) is liable to be revoked. 10. The appellant (plaintiff) also filed their reply and contested the said application. By order dated 28.07.2016, the Single Judge allowed the application of the respondents(defendants) and revoked the leave. The appellant felt aggrieved and filed an appeal before the Division Bench of the High Court. By impugned order, the Division Bench dismissed the appeal and affirmed the order of the Single Judge, which has given rise to filing of this appeal by way of special leave by the appellant(plaintiff) in this Court. 11. So, the short question, which arises for consideration in this appeal, is whether the High Court (Single Judge and Division Bench) was justified in allowing the respondents? (defendants?) application and thereby was justified in revoking the leave granted to the appellant (plaintiff) by order dated 18.03.2016. 12. Heard Mr. K.V. Vishwanathan, learned senior counsel for the appellant and Mr. Dhruv Mehta, learned senior counsel and Mr. Rajesh Singh Chauhan, learned counsel for the respondents. 13. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the parties, we are inclined to allow these appeals and while setting aside the impugned order and the order of the Single Judge dated 28.07.2016, remand the case to the Single Judge for deciding the issue in question afresh in accordance with law as directed hereinbelow. 14. The question arose as far back as in the year 1932 before the Calcutta High Court in the case of Secretary of State vs. Golabrai Paliram (AIR 1932 Calcutta 146) as to how the Court should approach the application for revocation of leave when it filed in a civil suit. 15. Justice Rankin, learned the then Chief Justice, laid down the following principle of law in the case while answering this question in the following words at page 147:?I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under clause 12 of the Letters Patent and to take the plaint off the file. Normally it is well settled that the proper way to plead to the jurisdiction of the court is to take the plea in the written statement and as a substantive part of the defence. Except in the clearest cases that should be the course.?16. This question came up for consideration before this Court in Indian Mineral & Chemicals Co. & Ors. vs. Deutsche Bank [(2004) 12 SCC 376] . The learned Judge Ruma Paul J. speaking for the Bench in Para 15 approved the law laid down in Secretary of State (supra) as laying down the correct principle of law and observed as under:"15. The observations of Rankin, C.J. in Secy. of State v. Golabrai Paliram correctly represents the law as to how the Court should approach an application for revocation of leave: (AIR p. 147)?I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under clause 12 of the Letters Patent and to take the plaint off the file. Normally it is well settled that the proper way to plead to the jurisdiction of the court is to take the plea in the written statement and as a substantive part of the defence. Except in the clearest cases that should be the course.?17. In other words, the law laid down in Secretary of State (supra) by the Calcutta High Court is now the law laid down by this Court in view of its affirmation by this Court in Indian Mineral & Chemicals Co. (supra). 18. Coming now to the facts of this case, since in this case the respondents did not file any written statement and instead raised the plea of territorial jurisdiction by filing the application for revocation of leave, in our view, the High Court should not have entertained the said application and instead should have granted liberty to the respondents(defendants) to file the written statement in the suit and to raise therein a plea of territorial jurisdiction of the Court. 19. An issue of such nature, in our view, cannot be tried by filing an application for revocation of leave. Indeed, this is what Rankin, the then CJ., held for the Bench in Secretary of State (supra) and which received approval of this Court in Indian Mineral & Chemicals Co.(supra). 20. In our opinion, a plea of territorial jurisdiction is essentially a mixed question of law and fact. It is for this reason, the respondents(defendants) should be allowed to raise such plea in the written statement to enable the Court to try it on its merits in accordance with law in the light of the requirements of Order 14 of the Code of Civil Procedure, 1908 and other relevant provisions governing the issue on merits. 21. Learned counsel for the respondents cited several decisions in support of his submissions. Having gone through them, we are of the opinion that these decisions are distinguishable in the light of the law laid down by this Court in Indian Mineral & Chemicals Co. (supra).
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13. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the parties, we are inclined to allow these appeals and while setting aside the impugned order and the order of the Single Judge dated 28.07.2016, remand the case to the Single Judge for deciding the issue in question afresh in accordance with law as directed hereinbelow.In other words, the law laid down in Secretary of State (supra) by the Calcutta High Court is now the law laid down by this Court in view of its affirmation by this Court in Indian Mineral & Chemicals Co. (supra).Coming now to the facts of this case, since in this case the respondents did not file any written statement and instead raised the plea of territorial jurisdiction by filing the application for revocation of leave, in our view, the High Court should not have entertained the said application and instead should have granted liberty to the respondents(defendants) to file the written statement in the suit and to raise therein a plea of territorial jurisdiction of the Court.An issue of such nature, in our view, cannot be tried by filing an application for revocation of leave. Indeed, this is what Rankin, the then CJ., held for the Bench in Secretary of State (supra) and which received approval of this Court in Indian Mineral & Chemicals Co.(supra).In our opinion, a plea of territorial jurisdiction is essentially a mixed question of law and fact. It is for this reason, the respondents(defendants) should be allowed to raise such plea in the written statement to enable the Court to try it on its merits in accordance with law in the light of the requirements of Order 14 of the Code of Civil Procedure, 1908 and other relevant provisions governing the issue on merits.Learned counsel for the respondents cited several decisions in support of his submissions. Having gone through them, we are of the opinion that these decisions are distinguishable in the light of the law laid down by this Court in Indian Mineral & Chemicals Co. (supra).
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MADHAVI Vs. CHAGAN & ORS | with the requirement of the senior-most teacher being a trained teacher. It could not have been the intention of the legislature while framing Rule 3(1)(a)(ii) to deliberately omit the word trained. The omission of the word trained is an obvious drafting error and if the said word is not supplemented, the rule cannot be harmonized in tune with the scheme of the Act and the other Rules which are referred to hereinabove. 19. In view thereof, we find that the judgment of this Court in Viman Vaman Awale dealt with only seniority of teachers in a primary school. The said judgment does not make any reference to seniority of teachers in a secondary school. On the contrary, the judgment of this Court in Bhawna is a judgment pertaining to seniority of teachers in a secondary school. This Court held as under: 9. Undisputably, the fifth respondent was holding the qualification of BA, BEd at the time of his initial appointment dated 13-8-1997 and became a member of Category C. At the same time, the appellant though appointed on 27-6-1994 as an untrained teacher, having acquired the training qualification i.e. BEd on 19-9-1997 and became a member of Category C after entry of the fifth respondent into service as a trained teacher, could not have claimed seniority in Category C over the fifth respondent prior to acquiring professional qualification (BEd) as envisaged under the scheme of the 1981 Rules as trained teacher and this what was considered by the authority who examined the inter se seniority of the appellant vis-a-vis fifth respondent under the 1981 Rules and confirmed by the High Court on dismissal of the writ petition preferred by the appellant. 20. The judgment in Bhawna is directly applicable to the present case inasmuch as Madhavi was holding the qualifications of B.A., B.Ed, at the time of her initial appointment on 16.7.1985, though she was appointed against a regular vacancy on 24.11.1988. However, Chagan was not qualified for appointment as Assistant Teacher as he graduated in Science only in the year 1997 and passed B.Ed, in 1999. He was upgraded to Category C only upon acquiring these qualifications. Accordingly, the seniority list circulated on 1.1.2014 mentioned Chagans name at Serial No. 10 while Madhavi was placed at Serial No. 2, though first in Category C 21. Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule B of the Rules. Such teacher is assigned Category E as per Schedule F. Clause 11(1) of Schedule B, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category D and later on after acquiring B.Ed, degree, he entered Category C, whereas Madhavi and other private respondents were already in Category C since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed. 22. Clause 1 of Schedule F deals with seniority of teachers in the primary school. The fact that the School in question is not a primary school could not be controverted by learned counsel for Chagan. Therefore, it is Clause 2 of Schedule F which would be referred to in order to determine the seniority of teachers in the secondary school. 23. The Scheme of the Act and the Rules makes it clear that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly, Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule B prescribes qualifications for the appointment of teachers in Primary School, whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule B. Similarly, Schedule F deals with rule of seniority having different categories. Category E is the lower-most level of the ladder which can be upgraded with improvements in the qualifications of the teachers. 24. We find that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule F of the Rules. Clause 1 was the subject matter of interpretation by this Court in Viman Vaman Awale and Clause 2 was the subject matter of interpretation in Bhawna. Vaijanath also dealt with promotion to the post of Head Master of a School falling in Clause 1 of Schedule F. Since the School in question is a secondary school, therefore, Clause 2 of Schedule F will determine the seniority. Chagan was not a trained teacher to be part of Category C at the time of his appointment on 1.8.1985 and he was rightly placed in Category E on account of his qualification but he upgraded his qualifications, and hence was placed in Category D and C on acquiring graduation and B.Ed, degrees respectively. 25. Keeping in view the principle laid down in Vaijanath, Madhavi was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed, degree. Her appointment was thus in accordance with Section 5(5) of the Act, so was the appointment of the other private respondents. However, Chagan could not be treated to be part of Category C from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment. | 0[ds]15. We find that the order of the High Court cannot be sustained in law. This Court in Viman Vaman Awale has proceeded as if the Court is dealing with seniority of teachers in a primary school. This Court also referred to Full Bench judgment of Bombay High Court reported as Vaijanath s/o Tatyarao Shinde vs. Secretary, Marathwada Shikshan Prasarak Mandal, Devgiri College Campus, Aurangabad & Ors., 2006 (6) Mh.L.J. 682 which again decided the question of promotion to the post of Head Master of a primary school. This Court in Viman Vaman Awale held as under:15. The appellant herein entered the service in Respondent 3 School as Assistant Teacher of a primary school with Diploma in Education i.e. D. Ed qualification. She, thus, fulfilled the qualification for that post. B. Ed degree is not the essential qualification prescribed for this post. This is a relevant factor which is to be kept in mind for resolving the controversy in issue.18. In the present case, as already mentioned above, the appellant was having the requisite minimum qualification for appointment to the post of Assistant Teacher in the primary school and it was not a case of appointment of an unqualified teacher when the appellant was appointed to the said post on 24-8-1979. This makes all the difference and renders the judgment in Vaijanath [Vaijanath vs. Marathwada Shikshan Prasarak Mandal, 2006 SCC OnLine Bom 1131: (2006) 6 Mah LJ 682] as inapplicable to the facts of the present case. The High Court has failed to notice this relevant distinction and mechanically applied the ratio of the judgment in Vaijanath [Vaijanath vs. Marathwada Shikshan Prasarak Mandal, 2006 SCC OnLine Bom 1131: (2006) 6 Mah LJ 682].17. At this stage, it would be appropriate to refer to Full Bench judgment of Bombay High Court in Vaijanath which dealt with the promotion to the post of Head Master of a primary school. The question examined was whether seniority of the teacher is to be determined from the date of initial appointment or from the date of acquisition of educational and training qualifications. The High Court held that only a trained teacher is eligible and qualified to be appointed as a primary school teacher. Therefore, it was not possible to concede that the services rendered by a teacher in a primary school who does not have the requisite qualification as laid down in Schedule B could be considered for the purpose of ascertaining seniority. The Court held as under:14. ... Reading of Rule 6 and Schedule B, in the light of section 5, which speaks of appointment of duly qualified teachers, the conclusion is inescapable that only a trained teacher is eligible and qualified for being appointed as a primary school teacher and if this be so, it is not possible to conceive that service rendered by a teacher in a primary school who does not have the requisite qualification as laid down in Schedule B can be counted for the purpose of seniority. No doubt, the criteria is seniority based on the date of joining service and continuous officiation but it cannot be lost sight of the fact that Schedule F, so also, Rule 12 pre-supposes appointment of a trained primary school teacher in conformity with the eligibility and qualification prescribed in Schedule B. Rule 12 and Schedule F cannot be read in isolation without considering the mandatory provision contained in section 5 of the M.E.P.S. Act, so also, Rule 6 and Scheduled B of the M.E.P.S. Rules.18. ... All the provisions, if read in harmony, the clear position which emerges is that no person can be appointed as primary school teacher who is not having qualification as prescribed under Schedule B, meaning thereby, possessing minimum educational and training qualification.20. In this view of the matter, we hold that for a valid appointment of a primary school teacher, a person must possess educational so also the training/teaching qualification. No person can be legally appointed who does not hold training qualification. Hence, service rendered as an untrained teacher will not qualify for being counted to determine seniority.19. In view thereof, we find that the judgment of this Court in Viman Vaman Awale dealt with only seniority of teachers in a primary school. The said judgment does not make any reference to seniority of teachers in a secondary school. On the contrary, the judgment of this Court in Bhawna is a judgment pertaining to seniority of teachers in a secondary school. This Court held as under:9. Undisputably, the fifth respondent was holding the qualification of BA, BEd at the time of his initial appointment dated 13-8-1997 and became a member of Category C. At the same time, the appellant though appointed on 27-6-1994 as an untrained teacher, having acquired the training qualification i.e. BEd on 19-9-1997 and became a member of Category C after entry of the fifth respondent into service as a trained teacher, could not have claimed seniority in Category C over the fifth respondent prior to acquiring professional qualification (BEd) as envisaged under the scheme of the 1981 Rules as trained teacher and this what was considered by the authority who examined the inter se seniority of the appellant vis-a-vis fifth respondent under the 1981 Rules and confirmed by the High Court on dismissal of the writ petition preferred by the appellant.20. The judgment in Bhawna is directly applicable to the present case inasmuch as Madhavi was holding the qualifications of B.A., B.Ed, at the time of her initial appointment on 16.7.1985, though she was appointed against a regular vacancy on 24.11.1988. However, Chagan was not qualified for appointment as Assistant Teacher as he graduated in Science only in the year 1997 and passed B.Ed, in 1999. He was upgraded to Category C only upon acquiring these qualifications. Accordingly, the seniority list circulated on 1.1.2014 mentioned Chagans name at Serial No. 10 while Madhavi was placed at Serial No. 2, though first in Category C21. Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule B of the Rules. Such teacher is assigned Category E as per Schedule F. Clause 11(1) of Schedule B, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category D and later on after acquiring B.Ed, degree, he entered Category C, whereas Madhavi and other private respondents were already in Category C since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed.22. Clause 1 of Schedule F deals with seniority of teachers in the primary school. The fact that the School in question is not a primary school could not be controverted by learned counsel for Chagan. Therefore, it is Clause 2 of Schedule F which would be referred to in order to determine the seniority of teachers in the secondary school.23. The Scheme of the Act and the Rules makes it clear that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly, Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule B prescribes qualifications for the appointment of teachers in Primary School, whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule B. Similarly, Schedule F deals with rule of seniority having different categories. Category E is the lower-most level of the ladder which can be upgraded with improvements in the qualifications of the teachers.24. We find that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule F of the Rules. Clause 1 was the subject matter of interpretation by this Court in Viman Vaman Awale and Clause 2 was the subject matter of interpretation in Bhawna. Vaijanath also dealt with promotion to the post of Head Master of a School falling in Clause 1 of Schedule F. Since the School in question is a secondary school, therefore, Clause 2 of Schedule F will determine the seniority. Chagan was not a trained teacher to be part of Category C at the time of his appointment on 1.8.1985 and he was rightly placed in Category E on account of his qualification but he upgraded his qualifications, and hence was placed in Category D and C on acquiring graduation and B.Ed, degrees respectively.25. Keeping in view the principle laid down in Vaijanath, Madhavi was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed, degree. Her appointment was thus in accordance with Section 5(5) of the Act, so was the appointment of the other private respondents. However, Chagan could not be treated to be part of Category C from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment. | 0 | 6,651 | 1,770 | ### 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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with the requirement of the senior-most teacher being a trained teacher. It could not have been the intention of the legislature while framing Rule 3(1)(a)(ii) to deliberately omit the word trained. The omission of the word trained is an obvious drafting error and if the said word is not supplemented, the rule cannot be harmonized in tune with the scheme of the Act and the other Rules which are referred to hereinabove. 19. In view thereof, we find that the judgment of this Court in Viman Vaman Awale dealt with only seniority of teachers in a primary school. The said judgment does not make any reference to seniority of teachers in a secondary school. On the contrary, the judgment of this Court in Bhawna is a judgment pertaining to seniority of teachers in a secondary school. This Court held as under: 9. Undisputably, the fifth respondent was holding the qualification of BA, BEd at the time of his initial appointment dated 13-8-1997 and became a member of Category C. At the same time, the appellant though appointed on 27-6-1994 as an untrained teacher, having acquired the training qualification i.e. BEd on 19-9-1997 and became a member of Category C after entry of the fifth respondent into service as a trained teacher, could not have claimed seniority in Category C over the fifth respondent prior to acquiring professional qualification (BEd) as envisaged under the scheme of the 1981 Rules as trained teacher and this what was considered by the authority who examined the inter se seniority of the appellant vis-a-vis fifth respondent under the 1981 Rules and confirmed by the High Court on dismissal of the writ petition preferred by the appellant. 20. The judgment in Bhawna is directly applicable to the present case inasmuch as Madhavi was holding the qualifications of B.A., B.Ed, at the time of her initial appointment on 16.7.1985, though she was appointed against a regular vacancy on 24.11.1988. However, Chagan was not qualified for appointment as Assistant Teacher as he graduated in Science only in the year 1997 and passed B.Ed, in 1999. He was upgraded to Category C only upon acquiring these qualifications. Accordingly, the seniority list circulated on 1.1.2014 mentioned Chagans name at Serial No. 10 while Madhavi was placed at Serial No. 2, though first in Category C 21. Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule B of the Rules. Such teacher is assigned Category E as per Schedule F. Clause 11(1) of Schedule B, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category D and later on after acquiring B.Ed, degree, he entered Category C, whereas Madhavi and other private respondents were already in Category C since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed. 22. Clause 1 of Schedule F deals with seniority of teachers in the primary school. The fact that the School in question is not a primary school could not be controverted by learned counsel for Chagan. Therefore, it is Clause 2 of Schedule F which would be referred to in order to determine the seniority of teachers in the secondary school. 23. The Scheme of the Act and the Rules makes it clear that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly, Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule B prescribes qualifications for the appointment of teachers in Primary School, whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule B. Similarly, Schedule F deals with rule of seniority having different categories. Category E is the lower-most level of the ladder which can be upgraded with improvements in the qualifications of the teachers. 24. We find that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule F of the Rules. Clause 1 was the subject matter of interpretation by this Court in Viman Vaman Awale and Clause 2 was the subject matter of interpretation in Bhawna. Vaijanath also dealt with promotion to the post of Head Master of a School falling in Clause 1 of Schedule F. Since the School in question is a secondary school, therefore, Clause 2 of Schedule F will determine the seniority. Chagan was not a trained teacher to be part of Category C at the time of his appointment on 1.8.1985 and he was rightly placed in Category E on account of his qualification but he upgraded his qualifications, and hence was placed in Category D and C on acquiring graduation and B.Ed, degrees respectively. 25. Keeping in view the principle laid down in Vaijanath, Madhavi was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed, degree. Her appointment was thus in accordance with Section 5(5) of the Act, so was the appointment of the other private respondents. However, Chagan could not be treated to be part of Category C from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment.
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be appointed as primary school teacher who is not having qualification as prescribed under Schedule B, meaning thereby, possessing minimum educational and training qualification.20. In this view of the matter, we hold that for a valid appointment of a primary school teacher, a person must possess educational so also the training/teaching qualification. No person can be legally appointed who does not hold training qualification. Hence, service rendered as an untrained teacher will not qualify for being counted to determine seniority.19. In view thereof, we find that the judgment of this Court in Viman Vaman Awale dealt with only seniority of teachers in a primary school. The said judgment does not make any reference to seniority of teachers in a secondary school. On the contrary, the judgment of this Court in Bhawna is a judgment pertaining to seniority of teachers in a secondary school. This Court held as under:9. Undisputably, the fifth respondent was holding the qualification of BA, BEd at the time of his initial appointment dated 13-8-1997 and became a member of Category C. At the same time, the appellant though appointed on 27-6-1994 as an untrained teacher, having acquired the training qualification i.e. BEd on 19-9-1997 and became a member of Category C after entry of the fifth respondent into service as a trained teacher, could not have claimed seniority in Category C over the fifth respondent prior to acquiring professional qualification (BEd) as envisaged under the scheme of the 1981 Rules as trained teacher and this what was considered by the authority who examined the inter se seniority of the appellant vis-a-vis fifth respondent under the 1981 Rules and confirmed by the High Court on dismissal of the writ petition preferred by the appellant.20. The judgment in Bhawna is directly applicable to the present case inasmuch as Madhavi was holding the qualifications of B.A., B.Ed, at the time of her initial appointment on 16.7.1985, though she was appointed against a regular vacancy on 24.11.1988. However, Chagan was not qualified for appointment as Assistant Teacher as he graduated in Science only in the year 1997 and passed B.Ed, in 1999. He was upgraded to Category C only upon acquiring these qualifications. Accordingly, the seniority list circulated on 1.1.2014 mentioned Chagans name at Serial No. 10 while Madhavi was placed at Serial No. 2, though first in Category C21. Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule B of the Rules. Such teacher is assigned Category E as per Schedule F. Clause 11(1) of Schedule B, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category D and later on after acquiring B.Ed, degree, he entered Category C, whereas Madhavi and other private respondents were already in Category C since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed.22. Clause 1 of Schedule F deals with seniority of teachers in the primary school. The fact that the School in question is not a primary school could not be controverted by learned counsel for Chagan. Therefore, it is Clause 2 of Schedule F which would be referred to in order to determine the seniority of teachers in the secondary school.23. The Scheme of the Act and the Rules makes it clear that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly, Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule B prescribes qualifications for the appointment of teachers in Primary School, whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule B. Similarly, Schedule F deals with rule of seniority having different categories. Category E is the lower-most level of the ladder which can be upgraded with improvements in the qualifications of the teachers.24. We find that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule F of the Rules. Clause 1 was the subject matter of interpretation by this Court in Viman Vaman Awale and Clause 2 was the subject matter of interpretation in Bhawna. Vaijanath also dealt with promotion to the post of Head Master of a School falling in Clause 1 of Schedule F. Since the School in question is a secondary school, therefore, Clause 2 of Schedule F will determine the seniority. Chagan was not a trained teacher to be part of Category C at the time of his appointment on 1.8.1985 and he was rightly placed in Category E on account of his qualification but he upgraded his qualifications, and hence was placed in Category D and C on acquiring graduation and B.Ed, degrees respectively.25. Keeping in view the principle laid down in Vaijanath, Madhavi was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed, degree. Her appointment was thus in accordance with Section 5(5) of the Act, so was the appointment of the other private respondents. However, Chagan could not be treated to be part of Category C from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment.
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Assam State Electricity Board & Others Vs. Buildworth Pvt. Ltd | doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant."63. The legal position, however, underwent a change after the enactment of the Interest Act, 1978. Sub-section (1) of Section 3 of the said Act provided that a court (as also an arbitrator) can in any proceedings for recovery of any debt or damages, if it thinks fit, allow interest to the person entitled to the debt or damages at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say, -"3. (1)(a) if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings;(b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings:"64. Sub-section (3) of Section 3 made it clear that nothing in that section shall apply to any debt or damages upon which interest is payable as of right, by virtue of any agreement; or to any debt or damages upon which payment of interest is barred, by virtue of an express agreement. The said sub-section also made it clear that nothing in that section shall empower the court to award interest upon interest. Section 5 of the said Act provides that nothing in the said Act shall affect the provisions of Section 34 of the Code of Civil Procedure, 1908.65. The position regarding award of interest after the Interest Act, 1978 came into force, can be stated thus:(a) Where a provision has been made in any contract, for interest on any debt or damages, interest shall be paid in accordance with such contract.(b) Where payment of interest on any debt or damages is expressly barred by the contract, no interest shall be awarded.(c) Where there is no express bar in the contract and where there is also no provision for payment of interest then the principles of Section 3 of the Interest Act will apply in regard to the pre-suit or pre-reference period and consequently interest will be payable:(i) where the proceedings relate to a debt (ascertained sum) payable by virtue of a written instrument at a certain time, then from the date when the debt is payable to the date of institution of the proceedings;(ii) where the proceedings is for recovery of damages or for recovery of a debt which is not payable at a certain time, then from the date mentioned in a written notice given by the person making a claim to the person liable for the claim that interest will be claimed, to date of institution of proceedings.(d) Payment of interest pendente lite (date of institution of proceedings to date of decree) and future interest (from the date of decree to date of payment) shall not be governed by the provisions of the Interest Act, 1978 but by the provisions of Section 34 of the Code of Civil Procedure, 1908 or the provisions of the law governing arbitration as the case may be.66. Therefore, even in regard to the claims for damages, interest can be awarded for a (sic period) prior to the date of ascertainment or quantification thereof if (a) the contract specifically provides for such payment from the date provided in the contract; or (b) a written demand had been made for payment of interest on the amount claimed as damages before initiation of action, from the date mentioned in the notice of demand (that is from the date of demand or any future date mentioned therein). In regard to claims for ascertained sums due, interest will be due from the date when they became due. In the present case, interest has been awarded only from 3-9-1990, the date of the petition under Section 20 of the Act for appointment of arbitrator. We find no reason to alter the date of commencement of interest."22. The judgments on the point have been considered in a decision of three Judges of this Court in Union of India v. Ambica Construction, 2016(2) R.C.R.(Civil) 638 : 2016(2) Recent Apex Judgments (R.A.J.) 526 : 2016 (6) SCC 36 in the context of a bar of jurisdiction to award interest for the period of the pendency of the arbitration under the 1940 Act if there is an express bar under the contract. The decision notes and affirms the powers of the arbitrator to award interest in the absence of a specific power or prohibition contained in the contract.23. The contract in the present case contains no bar or prohibition against the award of interest. However, it has been submitted on behalf of the Board that the claimant was paid a sum of Rs. 9,16,825/- towards escalation, which was the amount contemplated under Clause 2.3.1 of the Contract. However, as we have noted, this provision in the contract was correctly held by the arbitrator to apply only during the scheduled term of the contract and not in respect of the extended period. The respondent in its initial demands dated 7 March 1986 and 23 April 1986 made claims on account of price escalation and submitted a consolidated bill on 9 June 1986. On 20 April 1987 the claimant addressed a legal notice, claiming a sum of Rs. 10,73,416/- together with interest at the rate of 18 per cent per annum. In the circumstances upon the issuance of the above notice, the claimant was clearly entitled to claim interest with effect from 20 April 1987. The High Court was hence in error in setting aside the award of interest. | 1[ds]12. The arbitrator has taken the view that the provision for price escalation would not bind the claimant beyond the scheduled date of completion. This view of the arbitrator is based on a construction of the provisions of the contract, the correspondence between the parties and the conduct of the Board in allowing the completion of the contract even beyond the formal extended date of 6 September 1983 up to 31 January 1986. Matters relating to the construction of a contract lie within the province of the arbitral tribunal. Moreover, in the present case the view which has been adopted by the arbitrator is based on evidentiary material which was relevant to the decision. There is no error apparent on the face of the record which could have warranted the interference of the court within the parameters available under the Arbitration Act, 1940. The arbitrator has neither misconducted himself in the proceedings nor is the award otherwise invalid.The award comports with principles of law governing price escalation firmly established by decisions of this Court. For these reasons, we find merit in the contention of learned counsel appearing on behalf of the claimant that the award does not suffer from any error apparent on the face of the record insofar as the aspect of price escalation ispoint of the matter is that the arbitrator has duly borne in mind the circumstance that "the claimant also contributed to a certain extent and must share responsibility for causing delay in completion of the project". The award does indicate that the contributory delay on the part of the claimant was present to the mind of the arbitrator and has been duly taken into consideration in computing the extent of the claim under the award. This is not a case where the arbitrator has failed to take into account a relevant consideration or has taken into account extraneous material or consideration. Once the aspect of contributory delay was present to the mind of the arbitrator, as is reflected in the reasons in the award, and this has been taken into consideration in the assessment of damages, the award does not fall forview of the High Court does not warrant interference.The basis on which the High Court set aside the award of interest is hence contrary to the decisions of the Constitutionthis aspect of the matter is, in our view, no longer res integra. The arbitrator has power to grant interest on damages under Section 3(1)(b) of the Interest Act, 1978, from the date mentioned in this regard in a written notice claiming such interest. The position which prevailed prior to the Interest Act, 1978 (to the effect that interest on damages would be payable only after ascertainment of damages) has undergone a change after the enactment of the Act. Interest on damages could be claimed from the date of the written notice as contemplated in the law.The contract in the present case contains no bar or prohibition against the award of interest. However, it has been submitted on behalf of the Board that the claimant was paid a sum of Rs. 9,16,825/towards escalation, which was the amount contemplated under Clause 2.3.1 of the Contract. However, as we have noted, this provision in the contract was correctly held by the arbitrator to apply only during the scheduled term of the contract and not in respect of the extended period. The respondent in its initial demands dated 7 March 1986 and 23 April 1986 made claims on account of price escalation and submitted a consolidated bill on 9 June 1986. On 20 April 1987 the claimant addressed a legal notice, claiming a sum of Rs. 10,73,416/together with interest at the rate of 18 per cent per annum. In the circumstances upon the issuance of the above notice, the claimant was clearly entitled to claim interest with effect from 20 April 1987. The High Court was hence in error in setting aside the award of interest. | 1 | 5,509 | 712 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant."63. The legal position, however, underwent a change after the enactment of the Interest Act, 1978. Sub-section (1) of Section 3 of the said Act provided that a court (as also an arbitrator) can in any proceedings for recovery of any debt or damages, if it thinks fit, allow interest to the person entitled to the debt or damages at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say, -"3. (1)(a) if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings;(b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings:"64. Sub-section (3) of Section 3 made it clear that nothing in that section shall apply to any debt or damages upon which interest is payable as of right, by virtue of any agreement; or to any debt or damages upon which payment of interest is barred, by virtue of an express agreement. The said sub-section also made it clear that nothing in that section shall empower the court to award interest upon interest. Section 5 of the said Act provides that nothing in the said Act shall affect the provisions of Section 34 of the Code of Civil Procedure, 1908.65. The position regarding award of interest after the Interest Act, 1978 came into force, can be stated thus:(a) Where a provision has been made in any contract, for interest on any debt or damages, interest shall be paid in accordance with such contract.(b) Where payment of interest on any debt or damages is expressly barred by the contract, no interest shall be awarded.(c) Where there is no express bar in the contract and where there is also no provision for payment of interest then the principles of Section 3 of the Interest Act will apply in regard to the pre-suit or pre-reference period and consequently interest will be payable:(i) where the proceedings relate to a debt (ascertained sum) payable by virtue of a written instrument at a certain time, then from the date when the debt is payable to the date of institution of the proceedings;(ii) where the proceedings is for recovery of damages or for recovery of a debt which is not payable at a certain time, then from the date mentioned in a written notice given by the person making a claim to the person liable for the claim that interest will be claimed, to date of institution of proceedings.(d) Payment of interest pendente lite (date of institution of proceedings to date of decree) and future interest (from the date of decree to date of payment) shall not be governed by the provisions of the Interest Act, 1978 but by the provisions of Section 34 of the Code of Civil Procedure, 1908 or the provisions of the law governing arbitration as the case may be.66. Therefore, even in regard to the claims for damages, interest can be awarded for a (sic period) prior to the date of ascertainment or quantification thereof if (a) the contract specifically provides for such payment from the date provided in the contract; or (b) a written demand had been made for payment of interest on the amount claimed as damages before initiation of action, from the date mentioned in the notice of demand (that is from the date of demand or any future date mentioned therein). In regard to claims for ascertained sums due, interest will be due from the date when they became due. In the present case, interest has been awarded only from 3-9-1990, the date of the petition under Section 20 of the Act for appointment of arbitrator. We find no reason to alter the date of commencement of interest."22. The judgments on the point have been considered in a decision of three Judges of this Court in Union of India v. Ambica Construction, 2016(2) R.C.R.(Civil) 638 : 2016(2) Recent Apex Judgments (R.A.J.) 526 : 2016 (6) SCC 36 in the context of a bar of jurisdiction to award interest for the period of the pendency of the arbitration under the 1940 Act if there is an express bar under the contract. The decision notes and affirms the powers of the arbitrator to award interest in the absence of a specific power or prohibition contained in the contract.23. The contract in the present case contains no bar or prohibition against the award of interest. However, it has been submitted on behalf of the Board that the claimant was paid a sum of Rs. 9,16,825/- towards escalation, which was the amount contemplated under Clause 2.3.1 of the Contract. However, as we have noted, this provision in the contract was correctly held by the arbitrator to apply only during the scheduled term of the contract and not in respect of the extended period. The respondent in its initial demands dated 7 March 1986 and 23 April 1986 made claims on account of price escalation and submitted a consolidated bill on 9 June 1986. On 20 April 1987 the claimant addressed a legal notice, claiming a sum of Rs. 10,73,416/- together with interest at the rate of 18 per cent per annum. In the circumstances upon the issuance of the above notice, the claimant was clearly entitled to claim interest with effect from 20 April 1987. The High Court was hence in error in setting aside the award of interest.
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12. The arbitrator has taken the view that the provision for price escalation would not bind the claimant beyond the scheduled date of completion. This view of the arbitrator is based on a construction of the provisions of the contract, the correspondence between the parties and the conduct of the Board in allowing the completion of the contract even beyond the formal extended date of 6 September 1983 up to 31 January 1986. Matters relating to the construction of a contract lie within the province of the arbitral tribunal. Moreover, in the present case the view which has been adopted by the arbitrator is based on evidentiary material which was relevant to the decision. There is no error apparent on the face of the record which could have warranted the interference of the court within the parameters available under the Arbitration Act, 1940. The arbitrator has neither misconducted himself in the proceedings nor is the award otherwise invalid.The award comports with principles of law governing price escalation firmly established by decisions of this Court. For these reasons, we find merit in the contention of learned counsel appearing on behalf of the claimant that the award does not suffer from any error apparent on the face of the record insofar as the aspect of price escalation ispoint of the matter is that the arbitrator has duly borne in mind the circumstance that "the claimant also contributed to a certain extent and must share responsibility for causing delay in completion of the project". The award does indicate that the contributory delay on the part of the claimant was present to the mind of the arbitrator and has been duly taken into consideration in computing the extent of the claim under the award. This is not a case where the arbitrator has failed to take into account a relevant consideration or has taken into account extraneous material or consideration. Once the aspect of contributory delay was present to the mind of the arbitrator, as is reflected in the reasons in the award, and this has been taken into consideration in the assessment of damages, the award does not fall forview of the High Court does not warrant interference.The basis on which the High Court set aside the award of interest is hence contrary to the decisions of the Constitutionthis aspect of the matter is, in our view, no longer res integra. The arbitrator has power to grant interest on damages under Section 3(1)(b) of the Interest Act, 1978, from the date mentioned in this regard in a written notice claiming such interest. The position which prevailed prior to the Interest Act, 1978 (to the effect that interest on damages would be payable only after ascertainment of damages) has undergone a change after the enactment of the Act. Interest on damages could be claimed from the date of the written notice as contemplated in the law.The contract in the present case contains no bar or prohibition against the award of interest. However, it has been submitted on behalf of the Board that the claimant was paid a sum of Rs. 9,16,825/towards escalation, which was the amount contemplated under Clause 2.3.1 of the Contract. However, as we have noted, this provision in the contract was correctly held by the arbitrator to apply only during the scheduled term of the contract and not in respect of the extended period. The respondent in its initial demands dated 7 March 1986 and 23 April 1986 made claims on account of price escalation and submitted a consolidated bill on 9 June 1986. On 20 April 1987 the claimant addressed a legal notice, claiming a sum of Rs. 10,73,416/together with interest at the rate of 18 per cent per annum. In the circumstances upon the issuance of the above notice, the claimant was clearly entitled to claim interest with effect from 20 April 1987. The High Court was hence in error in setting aside the award of interest.
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Khemi Ram Vs. State of Punjab | petition in the Punjab High Court. That court took the view that the order of the appellants suspension was not valid as it actually reached him after his retirement. The State of Punjab filed an appeal to this Court, which was allowed, and it was held that as the order of suspension was passed and was communicated to the appellant before August 4, 1958, it was effective from July 31, 1958, and was a valid order. It is that judgment which has been reported in State of Punjab v. Khemi Ram to which reference has been made above. By its aforesaid judgment this Court remanded the case to the High Court with the direction that it should decide three other questions which had been left undecided because of the view which it had taken earlier. The case therefore went back to the High Court, and a Division Bench of that court has ultimately held that the writ petition is without merit, and has dismissed it. This is how the present appeal has arisen.5. The three questions which are the subject-matter of present appeal have been stated by the High Court as follows :1. Whether the respondent was no longer governed by the Punjab Civil Service Rules as his services had been borrowed by the Himachal Pradesh Administration and whether he ceased to be under the administrative control of the Punjab Government for that reason ?2. Whether it was permissible only for the Himachal Pradesh Administration to place the appellant under suspension and the Punjab Government had no such authority ?3. Whether the leave which had been granted to the appellant by the Himachal Pradesh Administration could be cancelled subsequently ?The High Court has decided all these questions against the appellant.6. It has been argued that as the appellants services had been borrowed by the Himachal Pradesh Administration, he was no longer governed by Rule 1.2 if the Punjab Civil Service Rules and ceased to be under the administrative control of that Government because his pay was no longer debitable to the Consolidated Fund of Punjab State. It has been urged that as the appellant went on deputation to the Himachal Pradesh Administration, his pay was debitable to the budget of that administration, and not to the Consolidated Fund of the Punjab State, so that he was not amenable to the control provided by the Punjab Rules. Rules 1.2 cannot however avail the appellant because all that it provides is that the Punjab Civil Service Rules shall apply to all government servants belonging to the categories mentioned in those rules who are under the administrative control of the Punjab Government and whose pay is debitable to the Consolidated Fund of that State. The purpose of the rule is only specify that the rules would apply to all government servants belonging to the various categories mentioned in the rules, and it has been stated further that they are to apply to those servants who are under the administrative control of the Punjab Government and whose pay is debitable to the Consolidated Fund of that State. This has been done to make it quite clear that the rules will not apply to those employees whose pay is not debitable to the Consolidated Fund of the State of Punjab, for the obvious reason that they would not be employees of the Punjab Government. It may also be mentioned that as the appellants services were replaced at the disposal of the Punjab Government with effect from August 4, 1958, his pay was debitable to the Consolidated Fund of Punjab State, at any rate, from that date. It is therefore futile to contend that Rule 1.2 could be so interpreted as to exclude the application of the Punjab Rules to the appellant merely because his services were lent over to the Himachal Pradesh Administration by way of deputation for some time.7. As regards the second point, the High Court has extracted Rule 20 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, on which reliance was placed by the for the petitioner and has rightly held that there is nothing in the rule to show that it was not permissible for the Punjab Government to make an order for the suspension of the appellant merely because it had placed his services at the disposal of the Himachal Pradesh Administration on deputation. Moreover, as has been stated, the appellant reverted to the State of Punjab with effect from August 4, 1958, and came under the direct administrative control of that State. The High Court therefore rightly decided that point also against the appellant.8. As regards the third point about the Punjab Governments authority to cancel the leave which had been granted to the appellant preparatory to retirement, it will be enough to say that Counsel for the appellant has not found it possible to refer to any rule under which the State Government could be said to be precluded from cancelling the leave. All that he has argued is that as the appellant automatically retired from service with effect from August 4, 1958, on completing the age of superannuation, it was not permissible for the State Government to cancel his leave. The argument runs counter to Rules 3.26(d) of the Punjab Rules which provides that a government servant under suspension on a charge of misconduct shall not be permitted to retire on reaching the age of superannuation but should be retained in service until the inquiry into the charge is concluded and a final order is passed thereon. That rules has already been interpreted by this Court in S. Pratap Singh v. State of Punjab ((1964) 4 SCR 733 : AIR 1964 SC 72 : (1966) 1 LLJ 458 ). The appellant therefore had no absolute right to retire from service, or to claim that he was entitled to retire automatically on reaching the age of superannuation when, as has been shown, he had been suspended already and a chargesheet had been served on him. | 0[ds]8. As regards the third point about the Punjab Governments authority to cancel the leave which had been granted to the appellant preparatory to retirement, it will be enough to say that Counsel for the appellant has not found it possible to refer to any rule under which the State Government could be said to be precluded from cancelling the leave. All that he has argued is that as the appellant automatically retired from service with effect from August 4, 1958, on completing the age of superannuation, it was not permissible for the State Government to cancel his leave. The argument runs counter to Rules 3.26(d) of the Punjab Rules which provides that a government servant under suspension on a charge of misconduct shall not be permitted to retire on reaching the age of superannuation but should be retained in service until the inquiry into the charge is concluded and a final order is passed thereon. That rules has already been interpreted by this Court in S. Pratap Singh v. State of Punjab ((1964) 4 SCR 733 : AIR 1964 SC 72 : (1966) 1 LLJ 458 ). The appellant therefore had no absolute right to retire from service, or to claim that he was entitled to retire automatically on reaching the age of superannuation when, as has been shown, he had been suspended already and a chargesheet had been served on him.As regards the second point, the High Court has extracted Rule 20 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, on which reliance was placed by the for the petitioner and has rightly held that there is nothing in the rule to show that it was not permissible for the Punjab Government to make an order for the suspension of the appellant merely because it had placed his services at the disposal of the Himachal Pradesh Administration on deputation. Moreover, as has been stated, the appellant reverted to the State of Punjab with effect from August 4, 1958, and came under the direct administrative control of that State. The High Court therefore rightly decided that point also against thepurpose of the rule is only specify that the rules would apply to all government servants belonging to the various categories mentioned in the rules, and it has been stated further that they are to apply to those servants who are under the administrative control of the Punjab Government and whose pay is debitable to the Consolidated Fund of that State. This has been done to make it quite clear that the rules will not apply to those employees whose pay is not debitable to the Consolidated Fund of the State of Punjab, for the obvious reason that they would not be employees of the Punjab Government. It may also be mentioned that as the appellants services were replaced at the disposal of the Punjab Government with effect from August 4, 1958, his pay was debitable to the Consolidated Fund of Punjab State, at any rate, from that date. It is therefore futile to contend that Rule 1.2 could be so interpreted as to exclude the application of the Punjab Rules to the appellant merely because his services were lent over to the Himachal Pradesh Administration by way of deputation for some time. | 0 | 1,519 | 592 | ### 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:
petition in the Punjab High Court. That court took the view that the order of the appellants suspension was not valid as it actually reached him after his retirement. The State of Punjab filed an appeal to this Court, which was allowed, and it was held that as the order of suspension was passed and was communicated to the appellant before August 4, 1958, it was effective from July 31, 1958, and was a valid order. It is that judgment which has been reported in State of Punjab v. Khemi Ram to which reference has been made above. By its aforesaid judgment this Court remanded the case to the High Court with the direction that it should decide three other questions which had been left undecided because of the view which it had taken earlier. The case therefore went back to the High Court, and a Division Bench of that court has ultimately held that the writ petition is without merit, and has dismissed it. This is how the present appeal has arisen.5. The three questions which are the subject-matter of present appeal have been stated by the High Court as follows :1. Whether the respondent was no longer governed by the Punjab Civil Service Rules as his services had been borrowed by the Himachal Pradesh Administration and whether he ceased to be under the administrative control of the Punjab Government for that reason ?2. Whether it was permissible only for the Himachal Pradesh Administration to place the appellant under suspension and the Punjab Government had no such authority ?3. Whether the leave which had been granted to the appellant by the Himachal Pradesh Administration could be cancelled subsequently ?The High Court has decided all these questions against the appellant.6. It has been argued that as the appellants services had been borrowed by the Himachal Pradesh Administration, he was no longer governed by Rule 1.2 if the Punjab Civil Service Rules and ceased to be under the administrative control of that Government because his pay was no longer debitable to the Consolidated Fund of Punjab State. It has been urged that as the appellant went on deputation to the Himachal Pradesh Administration, his pay was debitable to the budget of that administration, and not to the Consolidated Fund of the Punjab State, so that he was not amenable to the control provided by the Punjab Rules. Rules 1.2 cannot however avail the appellant because all that it provides is that the Punjab Civil Service Rules shall apply to all government servants belonging to the categories mentioned in those rules who are under the administrative control of the Punjab Government and whose pay is debitable to the Consolidated Fund of that State. The purpose of the rule is only specify that the rules would apply to all government servants belonging to the various categories mentioned in the rules, and it has been stated further that they are to apply to those servants who are under the administrative control of the Punjab Government and whose pay is debitable to the Consolidated Fund of that State. This has been done to make it quite clear that the rules will not apply to those employees whose pay is not debitable to the Consolidated Fund of the State of Punjab, for the obvious reason that they would not be employees of the Punjab Government. It may also be mentioned that as the appellants services were replaced at the disposal of the Punjab Government with effect from August 4, 1958, his pay was debitable to the Consolidated Fund of Punjab State, at any rate, from that date. It is therefore futile to contend that Rule 1.2 could be so interpreted as to exclude the application of the Punjab Rules to the appellant merely because his services were lent over to the Himachal Pradesh Administration by way of deputation for some time.7. As regards the second point, the High Court has extracted Rule 20 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, on which reliance was placed by the for the petitioner and has rightly held that there is nothing in the rule to show that it was not permissible for the Punjab Government to make an order for the suspension of the appellant merely because it had placed his services at the disposal of the Himachal Pradesh Administration on deputation. Moreover, as has been stated, the appellant reverted to the State of Punjab with effect from August 4, 1958, and came under the direct administrative control of that State. The High Court therefore rightly decided that point also against the appellant.8. As regards the third point about the Punjab Governments authority to cancel the leave which had been granted to the appellant preparatory to retirement, it will be enough to say that Counsel for the appellant has not found it possible to refer to any rule under which the State Government could be said to be precluded from cancelling the leave. All that he has argued is that as the appellant automatically retired from service with effect from August 4, 1958, on completing the age of superannuation, it was not permissible for the State Government to cancel his leave. The argument runs counter to Rules 3.26(d) of the Punjab Rules which provides that a government servant under suspension on a charge of misconduct shall not be permitted to retire on reaching the age of superannuation but should be retained in service until the inquiry into the charge is concluded and a final order is passed thereon. That rules has already been interpreted by this Court in S. Pratap Singh v. State of Punjab ((1964) 4 SCR 733 : AIR 1964 SC 72 : (1966) 1 LLJ 458 ). The appellant therefore had no absolute right to retire from service, or to claim that he was entitled to retire automatically on reaching the age of superannuation when, as has been shown, he had been suspended already and a chargesheet had been served on him.
### Response:
0
### Explanation:
8. As regards the third point about the Punjab Governments authority to cancel the leave which had been granted to the appellant preparatory to retirement, it will be enough to say that Counsel for the appellant has not found it possible to refer to any rule under which the State Government could be said to be precluded from cancelling the leave. All that he has argued is that as the appellant automatically retired from service with effect from August 4, 1958, on completing the age of superannuation, it was not permissible for the State Government to cancel his leave. The argument runs counter to Rules 3.26(d) of the Punjab Rules which provides that a government servant under suspension on a charge of misconduct shall not be permitted to retire on reaching the age of superannuation but should be retained in service until the inquiry into the charge is concluded and a final order is passed thereon. That rules has already been interpreted by this Court in S. Pratap Singh v. State of Punjab ((1964) 4 SCR 733 : AIR 1964 SC 72 : (1966) 1 LLJ 458 ). The appellant therefore had no absolute right to retire from service, or to claim that he was entitled to retire automatically on reaching the age of superannuation when, as has been shown, he had been suspended already and a chargesheet had been served on him.As regards the second point, the High Court has extracted Rule 20 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, on which reliance was placed by the for the petitioner and has rightly held that there is nothing in the rule to show that it was not permissible for the Punjab Government to make an order for the suspension of the appellant merely because it had placed his services at the disposal of the Himachal Pradesh Administration on deputation. Moreover, as has been stated, the appellant reverted to the State of Punjab with effect from August 4, 1958, and came under the direct administrative control of that State. The High Court therefore rightly decided that point also against thepurpose of the rule is only specify that the rules would apply to all government servants belonging to the various categories mentioned in the rules, and it has been stated further that they are to apply to those servants who are under the administrative control of the Punjab Government and whose pay is debitable to the Consolidated Fund of that State. This has been done to make it quite clear that the rules will not apply to those employees whose pay is not debitable to the Consolidated Fund of the State of Punjab, for the obvious reason that they would not be employees of the Punjab Government. It may also be mentioned that as the appellants services were replaced at the disposal of the Punjab Government with effect from August 4, 1958, his pay was debitable to the Consolidated Fund of Punjab State, at any rate, from that date. It is therefore futile to contend that Rule 1.2 could be so interpreted as to exclude the application of the Punjab Rules to the appellant merely because his services were lent over to the Himachal Pradesh Administration by way of deputation for some time.
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Sovachand Baid Vs. Commissioner of Income Tax | The Tribunal gave several reasons for it. It said that the appellant had not produced the books of account kept by the father in his own business in Calcutta which was carried on from 1906 to 1926. It held that these books would have shown what moneys the father had with him when he retired from business and went to live in Ratangarh. Then the Tribunal observed that the Ratangarh books contained no entries showing any amount having been received from the Calcutta business when it was closed, as would have appeared if the Ratangarh books were genuine. The Tribunal also noticed that the Ratangarh books only contained a record of moneys sent to the bank and withdrawn there from and of the transactions of certain accommodation loans granted to the son-in-law and other near relations. It observed that the numbers of the ten thousand rupees notes appeared in the entries relating to the accommodation loans granted to the near relations. In these circumstances the Tribunal felt that the books were of such a nature that they could be written up any time that the appellant wanted to. The Tribunal lastly held that the books did not contain a complete record of all the dealings of Mohanlal during the long period from 1926 to 1942.10. The learned counsel for the appellant as not been able to show that the Tribunals remarks on the Ratangarh books of account were wrong on the facts. He directed his attention largely in establishing that the reasons given by the Appellate Assistant Commissioner for accepting the Ratangarh books as genuine, were correct and preferable. That clearly is a matter into which we cannot go for we cannot appraise the evidence afresh. We are unable to say that the reasons given by the Tribunal for the view that the books are not genuine are unfounded or that there was no evidence to support the view that the Tribunal took. In our view, it is possible to find that the Ratangarh books were not genuine for the reasons mentioned by the Tribunal. We do not propose to consider what view we would have arrived at on the materials available as to the genuineness of the books, for that would be entirely irrelevant. It is enough to say that the view taken by the Tribunal is a reasonably possible view on the evidence adduced and that it cannot be said that that view is not supported by the evidence or was unreasonable.11. This would be enough to dispose of the appeal, but there are two other matters to which we should refer.12. Having come to the conclusion that the books of account of Ratangarh could not be accepted, the Tribunal went on to observe that from 1926 to 1945 the only source of income of the appellant and his father was interest earned on moneys deposited in bank. It came to that conclusion apparently because the books of account produced did not disclose any other source of income. The Tribunal also found that about 1945 the appellant had in his bank a sum of about Rs. 8 lacs to Rs. 10 lacs and that being so, in view of the only source of income mentioned earlier, it was impossible to believe that he had another seven lacs of rupees in notes in December, 1945 as alleged by him. The Tribunal then held that in these circumstances, the appellants uninvested cash was likely to be between Rs. 1,50,000 and Rs. 2,00,000 out of which a sum of Rs. 1,40,000 at the most could have been in high denomination notes. In this view of the matter the Tribunal held that out of the high denomination notes of the total value of Rs. 2,68,000 encashed by the appellant in January, 1946, notes worth Rs. 1,40, 000 could have been his capital assets and the balance of Rs. 1,28,000 must have been his undisclosed income. The Tribunal therefore directed that the appellant must pay-tax on the sum of Rs. 1, 28,000. The learned counsel for the appellant criticised this part of the Tribunals judgment as based on mere speculation. We cannot help feeling that this criticism may be partly justified but we do not appreciate how it assists the appellant. It does not, in our view, in any way affect the Tribunals finding on the question as to whether the appellant had proved that the notes had devolved on him on his fathers death. The Tribunal in this part of the judgment was really making a concession to the appellant and gave a benefit to him to which he was strictly not entitled in view of the Tribunals findings on the evidence led by the appellant. We are unable to hold that the Tribunals judgment is liable to be set aside because it held that the whole of Rs. 2, 68,000 was not taxable.13. Lastly, the learned counsel argued that even assuming that the notes formed part of his income, the appellant could not be taxed in respect of them without a finding that they represented income which had arisen or accrued in British India as he had been assessed as a person not residing in British India and that finding had not been made. We are unable to allow this contention to be raised, for it had never been mentioned at any earlier stage of the proceedings. The learned counsel drew our attention to a portion of the judgment of the Appellate Assistant Commissioner to show that the point had been raised earlier. We do not agree that there is anything in the judgment of the Appellate Assistant Commissioner to show that the point had been taken earlier. The portion referred to dealt with the remittances to British India of interest earned in Bikanere and not with the notes with which we are concerned. As the question had clearly never been raised by the appellant at any earlier stage we would not be justified in allowing him to .raise it now. | 0[ds]The learned counsel for the appellant as not been able to show that the Tribunals remarks on the Ratangarh books of account were wrong on the facts. He directed his attention largely in establishing that the reasons given by the Appellate Assistant Commissioner for accepting the Ratangarh books as genuine, were correct and preferable.That clearly is a matter into which we cannot go for we cannot appraise the evidence afresh. We are unable to say that the reasons given by the Tribunal for the view that the books are not genuine are unfounded or that there was no evidence to support the view that the Tribunal took. In our view, it is possible to find that the Ratangarh books were not genuine for the reasons mentioned by the Tribunal. We do not propose to consider what view we would have arrived at on the materials available as to the genuineness of the books, for that would be entirely irrelevant. It is enough to say that the view taken by the Tribunal is a reasonably possible view on the evidence adduced and that it cannot be said that that view is not supported by the evidence or was unreasonable.g come to the conclusion that the books of account of Ratangarh could not be accepted, the Tribunal went on to observe that from 1926 to 1945 the only source of income of the appellant and his father was interest earned on moneys deposited in bank. It came to that conclusion apparently because the books of account produced did not disclose any other source of income. The Tribunal also found that about 1945 the appellant had in his bank a sum of about Rs. 8 lacs to Rs. 10 lacs and that being so, in view of the only source of income mentioned earlier, it was impossible to believe that he had another seven lacs of rupees in notes in December, 1945 as alleged by him. The Tribunal then held that in these circumstances, the appellants uninvested cash was likely to be between Rs. 1,50,000 and Rs. 2,00,000 out of which a sum of Rs. 1,40,000 at the most could have been in high denomination notes. In this view of the matter the Tribunal held that out of the high denomination notes of the total value of Rs. 2,68,000 encashed by the appellant in January, 1946, notes worth Rs. 1,40, 000 could have been his capital assets and the balance of Rs. 1,28,000 must have been his undisclosed income. The Tribunal therefore directed that the appellant muston the sum of Rs. 1, 28,000. The learned counsel for the appellant criticised this part of the Tribunals judgment as based on mere speculation.We cannot help feeling that this criticism may be partly justified but we do not appreciate how it assists the appellant. It does not, in our view, in any way affect the Tribunals finding on the question as to whether the appellant had proved that the notes had devolved on him on his fathers death. The Tribunal in this part of the judgment was really making a concession to the appellant and gave a benefit to him to which he was strictly not entitled in view of the Tribunals findings on the evidence led by the appellant. We are unable to hold that the Tribunals judgment is liable to be set aside because it held that the whole of Rs. 2, 68,000 was not taxable.13.Lastly, the learned counsel argued that even assuming that the notes formed part of his income, the appellant could not be taxed in respect of them without a finding that they represented income which had arisen or accrued in British India as he had been assessed as a person not residing in British India and that finding had not been made.We are unable to allow this contention to be raised, for it had never been mentioned at any earlier stage of the proceedings. The learned counsel drew our attention to a portion of the judgment of the Appellate Assistant Commissioner to show that the point had been raised earlier. We do not agree that there is anything in the judgment of the Appellate Assistant Commissioner to show that the point had been taken earlier. The portion referred to dealt with the remittances to British India of interest earned in Bikanere and not with the notes with which we are concerned. As the question had clearly never been raised by the appellant at any earlier stage we would not be justified in allowing him to .raise it now. | 0 | 2,260 | 813 | ### 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:
The Tribunal gave several reasons for it. It said that the appellant had not produced the books of account kept by the father in his own business in Calcutta which was carried on from 1906 to 1926. It held that these books would have shown what moneys the father had with him when he retired from business and went to live in Ratangarh. Then the Tribunal observed that the Ratangarh books contained no entries showing any amount having been received from the Calcutta business when it was closed, as would have appeared if the Ratangarh books were genuine. The Tribunal also noticed that the Ratangarh books only contained a record of moneys sent to the bank and withdrawn there from and of the transactions of certain accommodation loans granted to the son-in-law and other near relations. It observed that the numbers of the ten thousand rupees notes appeared in the entries relating to the accommodation loans granted to the near relations. In these circumstances the Tribunal felt that the books were of such a nature that they could be written up any time that the appellant wanted to. The Tribunal lastly held that the books did not contain a complete record of all the dealings of Mohanlal during the long period from 1926 to 1942.10. The learned counsel for the appellant as not been able to show that the Tribunals remarks on the Ratangarh books of account were wrong on the facts. He directed his attention largely in establishing that the reasons given by the Appellate Assistant Commissioner for accepting the Ratangarh books as genuine, were correct and preferable. That clearly is a matter into which we cannot go for we cannot appraise the evidence afresh. We are unable to say that the reasons given by the Tribunal for the view that the books are not genuine are unfounded or that there was no evidence to support the view that the Tribunal took. In our view, it is possible to find that the Ratangarh books were not genuine for the reasons mentioned by the Tribunal. We do not propose to consider what view we would have arrived at on the materials available as to the genuineness of the books, for that would be entirely irrelevant. It is enough to say that the view taken by the Tribunal is a reasonably possible view on the evidence adduced and that it cannot be said that that view is not supported by the evidence or was unreasonable.11. This would be enough to dispose of the appeal, but there are two other matters to which we should refer.12. Having come to the conclusion that the books of account of Ratangarh could not be accepted, the Tribunal went on to observe that from 1926 to 1945 the only source of income of the appellant and his father was interest earned on moneys deposited in bank. It came to that conclusion apparently because the books of account produced did not disclose any other source of income. The Tribunal also found that about 1945 the appellant had in his bank a sum of about Rs. 8 lacs to Rs. 10 lacs and that being so, in view of the only source of income mentioned earlier, it was impossible to believe that he had another seven lacs of rupees in notes in December, 1945 as alleged by him. The Tribunal then held that in these circumstances, the appellants uninvested cash was likely to be between Rs. 1,50,000 and Rs. 2,00,000 out of which a sum of Rs. 1,40,000 at the most could have been in high denomination notes. In this view of the matter the Tribunal held that out of the high denomination notes of the total value of Rs. 2,68,000 encashed by the appellant in January, 1946, notes worth Rs. 1,40, 000 could have been his capital assets and the balance of Rs. 1,28,000 must have been his undisclosed income. The Tribunal therefore directed that the appellant must pay-tax on the sum of Rs. 1, 28,000. The learned counsel for the appellant criticised this part of the Tribunals judgment as based on mere speculation. We cannot help feeling that this criticism may be partly justified but we do not appreciate how it assists the appellant. It does not, in our view, in any way affect the Tribunals finding on the question as to whether the appellant had proved that the notes had devolved on him on his fathers death. The Tribunal in this part of the judgment was really making a concession to the appellant and gave a benefit to him to which he was strictly not entitled in view of the Tribunals findings on the evidence led by the appellant. We are unable to hold that the Tribunals judgment is liable to be set aside because it held that the whole of Rs. 2, 68,000 was not taxable.13. Lastly, the learned counsel argued that even assuming that the notes formed part of his income, the appellant could not be taxed in respect of them without a finding that they represented income which had arisen or accrued in British India as he had been assessed as a person not residing in British India and that finding had not been made. We are unable to allow this contention to be raised, for it had never been mentioned at any earlier stage of the proceedings. The learned counsel drew our attention to a portion of the judgment of the Appellate Assistant Commissioner to show that the point had been raised earlier. We do not agree that there is anything in the judgment of the Appellate Assistant Commissioner to show that the point had been taken earlier. The portion referred to dealt with the remittances to British India of interest earned in Bikanere and not with the notes with which we are concerned. As the question had clearly never been raised by the appellant at any earlier stage we would not be justified in allowing him to .raise it now.
### Response:
0
### Explanation:
The learned counsel for the appellant as not been able to show that the Tribunals remarks on the Ratangarh books of account were wrong on the facts. He directed his attention largely in establishing that the reasons given by the Appellate Assistant Commissioner for accepting the Ratangarh books as genuine, were correct and preferable.That clearly is a matter into which we cannot go for we cannot appraise the evidence afresh. We are unable to say that the reasons given by the Tribunal for the view that the books are not genuine are unfounded or that there was no evidence to support the view that the Tribunal took. In our view, it is possible to find that the Ratangarh books were not genuine for the reasons mentioned by the Tribunal. We do not propose to consider what view we would have arrived at on the materials available as to the genuineness of the books, for that would be entirely irrelevant. It is enough to say that the view taken by the Tribunal is a reasonably possible view on the evidence adduced and that it cannot be said that that view is not supported by the evidence or was unreasonable.g come to the conclusion that the books of account of Ratangarh could not be accepted, the Tribunal went on to observe that from 1926 to 1945 the only source of income of the appellant and his father was interest earned on moneys deposited in bank. It came to that conclusion apparently because the books of account produced did not disclose any other source of income. The Tribunal also found that about 1945 the appellant had in his bank a sum of about Rs. 8 lacs to Rs. 10 lacs and that being so, in view of the only source of income mentioned earlier, it was impossible to believe that he had another seven lacs of rupees in notes in December, 1945 as alleged by him. The Tribunal then held that in these circumstances, the appellants uninvested cash was likely to be between Rs. 1,50,000 and Rs. 2,00,000 out of which a sum of Rs. 1,40,000 at the most could have been in high denomination notes. In this view of the matter the Tribunal held that out of the high denomination notes of the total value of Rs. 2,68,000 encashed by the appellant in January, 1946, notes worth Rs. 1,40, 000 could have been his capital assets and the balance of Rs. 1,28,000 must have been his undisclosed income. The Tribunal therefore directed that the appellant muston the sum of Rs. 1, 28,000. The learned counsel for the appellant criticised this part of the Tribunals judgment as based on mere speculation.We cannot help feeling that this criticism may be partly justified but we do not appreciate how it assists the appellant. It does not, in our view, in any way affect the Tribunals finding on the question as to whether the appellant had proved that the notes had devolved on him on his fathers death. The Tribunal in this part of the judgment was really making a concession to the appellant and gave a benefit to him to which he was strictly not entitled in view of the Tribunals findings on the evidence led by the appellant. We are unable to hold that the Tribunals judgment is liable to be set aside because it held that the whole of Rs. 2, 68,000 was not taxable.13.Lastly, the learned counsel argued that even assuming that the notes formed part of his income, the appellant could not be taxed in respect of them without a finding that they represented income which had arisen or accrued in British India as he had been assessed as a person not residing in British India and that finding had not been made.We are unable to allow this contention to be raised, for it had never been mentioned at any earlier stage of the proceedings. The learned counsel drew our attention to a portion of the judgment of the Appellate Assistant Commissioner to show that the point had been raised earlier. We do not agree that there is anything in the judgment of the Appellate Assistant Commissioner to show that the point had been taken earlier. The portion referred to dealt with the remittances to British India of interest earned in Bikanere and not with the notes with which we are concerned. As the question had clearly never been raised by the appellant at any earlier stage we would not be justified in allowing him to .raise it now.
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Bareilly Electricity Supply Company Limited Vs. Sirajuddin & Others | Gajendragadkar, J.1. An award directing the appellant, the Bareilly Electricity Supply Company, Ltd., to reinstate its employee, the respondent Sirajuddin, has given rise to this appeal by special leave. The respondent had been employed by the appellant in December, 1951 as an unskilled labourer, viz., cooly. He was first working in the mains department as a cooly and then in September, 1952 he was transferred to the meter department in the same capacity and in the same scale of wages. While he was working in the said department he was required to keep a cycle of his own for the companys work for which he was allowed an allowance of Rs. 6 per month. Later, on 21 December, 1956 by a verbal order he was retransferred to the mains department and naturally the cycle allowance paid to him whilst he was working in the meter department was discontinued. The respondent challenged the validity of this order of retransfer and that became the subject-matter of an industrial dispute which was referred for adjudication to the industrial tribunal. It is in the said reference that the award under appeal was passed by the tribunal.2. The point raised by the appellant before us lies within a very narrow compass. It appears that the respondent challenged the validity of the order of retransfer on several grounds. The tribunal was not satisfied with most of them; in fact it has serially rejected one ground after another taken by the respondent in support of his plea that the order of retransfer was invalid. The tribunal, however, thought that the order of retransfer having been passed verbally by a person not competent to alter the previous order under which the respondent had been asked to go to the meter department, the retransfer was invalid. It has also observed that there has been such a hue and cry about the retransfer and yet the management has not given any reason why the retransfer was made. On these grounds the tribunal said that its opinion veered round to the conclusion that the retransfer was mala fide, that is to say, on other than bona fide grounds, and it added that it may be for the union activities of the respondent that he was retransferred.In our opinion, it is very difficult to sustain this award. The appellant asked its officer to retransfer the respondent from the mains to the meter department, and in its pleadings before the tribunal the appellant has urged that the order for retransfer was properly and validly made. It is difficult to understand why a verbal order should be held to be necessarily invalid and what authority is expected in the person who made the said order. Transferring a cooly from one department to another is a matter of internal arrangement and industrial tribunals should be very careful before they interfere with the orders made in the discharge of the management function in that behalf. The argument that the appellant did not give any reason for this retransfer though there was hue and cry against it seems to us to be wholly beside the point. Even the tribunal did not feel inclined to make definite finding that it was because of the union activities of the respondent that he was retransferred; it has only suggested that as a possibility. The failure of the appellant to give specific reason for the retransfer of the respondent appears to be the sole basis on which the conclusion of mala fides is founded. It is hardly necessary to emphasize that the findings of mala fides can be made by industrial tribunals only after sufficient reliable evidence is led in support of it. Such a finding should not be made lightheartedly or in a casual manner as has been done by the tribunal in the present case. Therefore, without deciding the other points raised in the pleadings and confining ourselves to the only ground on which the tribunal has based its decision, we must hold that the order of reinstatement is patently unreasonable and must be set aside.3. | 1[ds]The argument that the appellant did not give any reason for this retransfer though there was hue and cry against it seems to us to be wholly beside the point. Even the tribunal did not feel inclined to make definite finding that it was because of the union activities of the respondent that he was retransferred; it has only suggested that as a possibility. The failure of the appellant to give specific reason for the retransfer of the respondent appears to be the sole basis on which the conclusion of mala fides is founded. It is hardly necessary to emphasize that the findings of mala fides can be made by industrial tribunals only after sufficient reliable evidence is led in support of it. Such a finding should not be made lightheartedly or in a casual manner as has been done by the tribunal in the present case. Therefore, without deciding the other points raised in the pleadings and confining ourselves to the only ground on which the tribunal has based its decision, we must hold that the order of reinstatement is patently unreasonable and must be set aside. | 1 | 725 | 201 | ### 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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Gajendragadkar, J.1. An award directing the appellant, the Bareilly Electricity Supply Company, Ltd., to reinstate its employee, the respondent Sirajuddin, has given rise to this appeal by special leave. The respondent had been employed by the appellant in December, 1951 as an unskilled labourer, viz., cooly. He was first working in the mains department as a cooly and then in September, 1952 he was transferred to the meter department in the same capacity and in the same scale of wages. While he was working in the said department he was required to keep a cycle of his own for the companys work for which he was allowed an allowance of Rs. 6 per month. Later, on 21 December, 1956 by a verbal order he was retransferred to the mains department and naturally the cycle allowance paid to him whilst he was working in the meter department was discontinued. The respondent challenged the validity of this order of retransfer and that became the subject-matter of an industrial dispute which was referred for adjudication to the industrial tribunal. It is in the said reference that the award under appeal was passed by the tribunal.2. The point raised by the appellant before us lies within a very narrow compass. It appears that the respondent challenged the validity of the order of retransfer on several grounds. The tribunal was not satisfied with most of them; in fact it has serially rejected one ground after another taken by the respondent in support of his plea that the order of retransfer was invalid. The tribunal, however, thought that the order of retransfer having been passed verbally by a person not competent to alter the previous order under which the respondent had been asked to go to the meter department, the retransfer was invalid. It has also observed that there has been such a hue and cry about the retransfer and yet the management has not given any reason why the retransfer was made. On these grounds the tribunal said that its opinion veered round to the conclusion that the retransfer was mala fide, that is to say, on other than bona fide grounds, and it added that it may be for the union activities of the respondent that he was retransferred.In our opinion, it is very difficult to sustain this award. The appellant asked its officer to retransfer the respondent from the mains to the meter department, and in its pleadings before the tribunal the appellant has urged that the order for retransfer was properly and validly made. It is difficult to understand why a verbal order should be held to be necessarily invalid and what authority is expected in the person who made the said order. Transferring a cooly from one department to another is a matter of internal arrangement and industrial tribunals should be very careful before they interfere with the orders made in the discharge of the management function in that behalf. The argument that the appellant did not give any reason for this retransfer though there was hue and cry against it seems to us to be wholly beside the point. Even the tribunal did not feel inclined to make definite finding that it was because of the union activities of the respondent that he was retransferred; it has only suggested that as a possibility. The failure of the appellant to give specific reason for the retransfer of the respondent appears to be the sole basis on which the conclusion of mala fides is founded. It is hardly necessary to emphasize that the findings of mala fides can be made by industrial tribunals only after sufficient reliable evidence is led in support of it. Such a finding should not be made lightheartedly or in a casual manner as has been done by the tribunal in the present case. Therefore, without deciding the other points raised in the pleadings and confining ourselves to the only ground on which the tribunal has based its decision, we must hold that the order of reinstatement is patently unreasonable and must be set aside.3.
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The argument that the appellant did not give any reason for this retransfer though there was hue and cry against it seems to us to be wholly beside the point. Even the tribunal did not feel inclined to make definite finding that it was because of the union activities of the respondent that he was retransferred; it has only suggested that as a possibility. The failure of the appellant to give specific reason for the retransfer of the respondent appears to be the sole basis on which the conclusion of mala fides is founded. It is hardly necessary to emphasize that the findings of mala fides can be made by industrial tribunals only after sufficient reliable evidence is led in support of it. Such a finding should not be made lightheartedly or in a casual manner as has been done by the tribunal in the present case. Therefore, without deciding the other points raised in the pleadings and confining ourselves to the only ground on which the tribunal has based its decision, we must hold that the order of reinstatement is patently unreasonable and must be set aside.
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V. Purushotham Rao Vs. U.O.I. | fail to understand how a contention could be raised that the whole procedure adopted is vitiated for non-compliance of the procedure under Order I Rule 8, CPC. The object of Order I Rule 8, CPC is to give notice to persons likely to be affected by litigation, so that they may be heard. If the Court would have directed issuance of notice under Order I Rule 8, CPC without giving individual notice to the allottees to show-cause why the allotment will not be cancelled, then that perhaps would have been an infraction and violation of the principle of natural justice. But in this case, each and every allottee had been duly noticed, they have filed their replies to the notices, they have availed of the opportunity of examining the original file, wherein the case of discretionary allotment had been dealt with and it was only after hearing them that the orders of cancellation had been passed. We have, therefore, no hesitation in answering this question that there was no requirement of following the procedure under Order I Rule 8 nor can it be said that the entire exercise is vitiated. 26. So far as the eighth question is concerned, it was repeatedly argued before us by several Counsels that the concerned Minister was not required to verify and since the order of allotment stipulates that the Oil Company would verify before granting the agency in question that itself is a good verification and, consequently, the High Court was in error in cancelling the allotment on the ground that there had been no proper verification. It is no doubt true that the Minister having exercised his discretion and allotting a particular agency in favour of the applicant, has required the Oil Company to make necessary verification before entering into an agreement with the allottee, but that verification supposed to have been done by the Oil Company has nothing to do with the materials on which the subjective satisfaction of the Minister was arrived at for exercise of his discretion in favour of any individual for any justifiable reason. When a State property as distinct from a private property is being dealt with by a Minister then it is of paramount importance that such public property must be dealt with for public purpose and in the public interest. The disposal of a public property undoubtedly partakes the character of a trust and, therefore, in the matter of such disposal, there should not be any suspicion of a lack of principle. The exercise of discretion must not be arbitrary or capricious or for any extraneous considerations. It is in that context when the Court was examining each and every individual case of discretionary allotment, the Court was trying to find out whether there existed some materials, on the basis of which the Minister could be said to have arrived at his subjective satisfaction for exercise of his discretion in favour of the applicant. It is the so-called satisfaction of the Minister for exercise of his discretionary power and making the grant that was being examined and scrutinized by the Court and only when the Court found that there had been absolutely no materials or that Minister had made the grant without making any inquiry or verification, that the Court had interfered with the allotments in question, obviously on a conclusion that such allotments had been arbitrarily made. The subsequent inquiry supposed to have been conducted by the Oil Company cannot replace the pre-conditions for exercise of discretion by the Minister. If the initial order of allotment by exercise of discretion is vitiated on the ground of absence of any materials or verification by the concerned authority who has exercised the discretion, then the so-called subsequent inquiry by the Oil Company which operates in different fields cannot make the so-called arbitrary order of the Minister a legal or just order. This being the position, we see no force in the submission made by the Counsel appearing for the appellants in this score. The same accordingly stands rejected. 27. The next question which arises for consideration is whether the judgment of this Court in Civil Appeal No. 6840 of 2001 and principles evolved therein can be applied to the case in hand, so as to protect the allotments already made under the discretionary quota. The aforesaid case no doubt was a case of allotment of land by the Chief Minister of a State in the State of Haryana. The High Court of Punjab and Haryana by its order dated 20th January, 1988 disposed of the case of S.R. Dass v. State of Haryana, 1988 Punjab Law Journal page 123, under which it formulated certain principles on which the discretionary allotments could be made with certain conditions. The so-called discretionary allotments made by the Government and HUDA, pursuant to the earlier judgment of Punjab and Haryana High Court were sought to be assailed as being contrary to certain stricter principles, which were evolved in the case of Anil Sabharwal which stood disposed of on 5.12.1997. This Court in the appeal in question held that the stricter scrutiny required to be made as per the guidelines evolved in Anil Sabharwals case, must be made applicable to the period subsequent to the judgment viz. 5.12.1997 and allotments made between 1988 and 1997 in accordance with the principles and guidelines indicated in S.R. Dass case, were protected by applying the principle of prospective application, so far as the judgment in Anil Sabharwals case. We fail to understand how the aforesaid principle can apply to the case in hand where the allotments made prior to the judgment of this Court in Centre for Public Interest Litigation, 1995(3) Supp. (3) SCC 382, are the subject matter of scrutiny and had been made indiscriminately, as there had been no guiding principle for making such allotments. Consequently, the principles evolved in Civil Appeal No. 6840 of 2001, will have no application at all to the present appeals. The said contention, therefore, must fail. | 0[ds]According to the learned Counsel, the three-Judge Bench accepted the contention of the applicability of principle of constructive res judicata and, therefore, this Bench being a two-Judge Bench must be bound by the said observations or in the alternative, may refer the matter to a Larger Bench. We are not in a position to accept either of these submissions. It may be stated at the outset that the three-Judge Bench was concerned with the review petition that had been filed in relation to the order dated 4.11.1996 since reported in 1996(6) SCC 593. The learned Judges committed an error in the beginning in thinking that the review petition filed by Capt. Satish Sharma, was in relation to both the judgments viz. 1996(6) SCC 530 as well as 1996(6) SCC 593. In the review petition, the Court was concerned with the correctness of the directions contained in the order dated 4.11.1996 to institute criminal prosecution against the concerned Minister and levy of penalty as exemplary damages to the tune of Rs. 50 lacs. It is in that context the Court made the aforesaid observations not noticing the fact that in 1996(6) SCC 530, the Court had earlier directed the High Court to dispose of the two writ petitions pending in the High Court and decide the legality of the order of discretionary allotment made by the concerned Minister. It is indeed interesting to notice that in paragraph 125 of the judgment of the three-Judge Bench, the Court itself had indicated that the conduct of the concerned Minister in making allotments of petrol outlets was atrocious and reflects a wanton exercise of power by the Minister. But what the Court wanted to examine and ultimately held was that the said action fell short of ‘misfeasance in publicwhich is a specific tort and the ingredients of that tort were not wholly met in the case, so that there was no occasion to award exemplary damages. It would be indeed a travesty of justice to accept the submission of the Counsel for the appellants that the three-Judge Bench expressed opinion that the principle of constructive res judicata would apply to the case in hand, so as to debar the High Court from entertaining the writ petitions and disposing them of on merits. As we have already noted, prior to the three-Judge Bench judgment of this Court, the self-same order of the Delhi High Court had been assailed in as many as 79 cases by approaching this Court by way of special leave petitions and all those petitions had been dismissed20. The extent to which corruption in the governing structure has corroded the very core of our democracy, the notoriety which the discretionary allotment of petroleum dealership and LPG gas agencies had acquired, the earlier petition under Article 32 entertained by this Court at the behest of the Common Cause, the cancellation of 15 of such allotments and finally, the express direction therein to the High Court to dispose of the pending writ petitions after examining the individual cases, it is difficult for us to accept the bar of principle of constructive res judicata on the ground that the earlier judgment in the case of Centre for Public Interest Litigation has accorded any tacit approval or the subsequent so-called observation made in the three-Judge Bench decision of this Court in the review petition. We, therefore, unhesitatingly hold that the aforesaid contention is devoid of any substance21. The third contention was seriously argued by Mr. Sharma, the learned Counsel appearing for the appellant in Civil Appeal No. 3106 of 2000. The learned Counsel very much emphasised that Common Cause v. Union of India (supra), has been over-ruled and, therefore, nothing survived for Delhi High Court to examine the legality of the allotments made under discretionary quota. This argument appears to have been made on the basis of the Head Note at page 671 of the reported judgment with reference to paragraph 123 of the judgment. But when we examine paragraph 123 of the judgment, we do not find anywhere that the three- Judge Bench had in fact over-ruled the judgment in Common Cause case, 1996(6) SCC 530. On the other hand, in paragraph 125 it affirms the earlier conclusion that the conduct of the Minister was wholly unjustified. Then again, the review petition itself, as already stated, had been filed by Capt. Satish Sharma, the then Minister only in relation to the order and direction dated 4.11.1996 since reported in 1996(6) SCC 593. In this view of the matter, we find no substance in the aforesaid contention raised by Mr. Sharma, appearing for the appellant in Civil Appeal No. 3106 of 2000. We have therefore no hesitation in rejecting the same22. So far as the fourth question is concerned, it is no doubt true that the three- Judge Bench decision of this Court, reviewing the direction in the Common Cause case, so far as order dated 4.11.1996 is concerned, is subsequent to the disposal of the writ petition by the Delhi High Court, but we do not find any justification for requiring the Delhi High Court to re-consider the appeals in the light of the observations made by the three-Judge Bench judgment of this Court inasmuch as in the said judgment this Court was merely concerned with the directions to register a criminal case and prosecute the concerned Minister, if he is found to have committed any criminal offence and levy of exemplary damages to the tune of Rs. 50 lacs. Consequently, any observation made in that regard will have no bearing on the merits of the individual allotments, which were the subject matter of consideration in the two writ petitions before the Delhi High Court. We, therefore, do not find any substance in the aforesaid submission made on behalf of the appellants23. So far as the fifth question is concerned, it is no doubt true that the appellants have invested considerable amount in the business and have operated for about eight years but even on equitable considerations, we do not find any equity in favour of the appellants. The conduct of the Minister in making the discretionary allotments has been found to be atrocious, in the very three-Judge Bench decision of this and in relation to similar allotments made by the said Minister in favour of 15 persons, who were respondents in the Common Cause case. This Court came to hold that the allotments of the public property has been doled out in arbitrary and discriminatory manner and the appellants had been held to be beneficiaries of such arbitrary orders of allotments. The question of granting the allottees relief on an equitable consideration did not arise at all, for the same reasons in a case like this, a sympathetic consideration on the ground of equity would be a case of misplaced sympathy and we refrain from granting any relief on any equitable consideration. In our view, the appellants do not deserve any equitable consideration24. So far as the sixth question is concerned, we have examined the judgment of Delhi High Court in the case of each individual appellant. We have also considered the questionnaire that had been evolved and also the replies to the show-cause notices that had been filed by the allottees. We have also considered the original applications that had been filed by these appellants and the orders of allotment made by the concerned Minister, wherever they are available on record as well as the recommendations and circumstances leading to the exercise of discretion. The impugned judgment also indicates that in each and every case, the High Court had considered the original file, dealing with the allotments in question and it cancelled only those allotments where there was not an iota of material in support of the claim made by the applicant, whereas it sustained several other cases of discretionary allotments made during that period, wherever materials were available in the original file. It is difficult for us to come to a conclusion that the conclusion of the High Court in the cases in hand can be said to be vitiated on account of non-consideration of any germane materials. Factually, we do not have any basis to come to the aforesaid finding. On the other hand, we are satisfied that the High Court has applied its mind to each and every individual case of discretionary allotment and cancelled only those, which it came to hold to have been arbitrarily granted without any inquiry and only on being persuaded by certain recommendations of high dignitaries and without verification of any materials. We, therefore, see no infirmity with the ultimate conclusion of the High Court, cancelling the allotments in favour of the appellants, so as to be interfered with by this Court25. So far as the seventh question is concerned, it is Mr. Bhandari, who argued with vehemence that non-issuance of notice under Order I Rule 8, CPC by the High Court before deciding the legal issues by its order dated 22.8.1997, has vitiated the entire proceedings and, consequently, the order of cancellation must be set aside by this Court. According to Mr. Bhandari, in a matter like the present one, unless the Court directs issuance of notice by publication in a newspaper, following the procedure under Order I Rule 8, CPC and all the affected persons get an opportunity to appear and made their submissions, before the Court formulates the legal position and answers them, the subsequent notice to different persons like the appellants is nothing but a compliance of paper formality and such procedure adopted has grossly prejudiced the appellants. We, however, are not persuaded to accept this submission. The provisions of Order I Rule 8, CPC get attracted when there are numerous persons having the same interest, are sued or sue and the Court can permit such a suit to be defended by adopting the procedure under Order I Rule 8, CPC. In the case in hand, the writ petition that had been filed was in fact a petition in public interest, where the allegations were that the concerned authority had been involved in large-scale allotments of retail outlets in petrol, gass and kerosene, arbitrarily and for extraneous considerations without having any guidelines for such allotments and as such it tantamounted to disposal of public property in a manner which is shocking to conscience. By the time when the High Court went into those allegations in the two petitions filed, this Court had taken the view that such allotments had in fact been made arbitrarily and contrary to the public interest and this Court directed the High Court to dispose of the pending proceedings in accordance with law. The High Court, on receipt of the names of the allottees during a specified period from the Union Government, issued notice to each and every such allottee, who had been allotted out of the discretionary quota of the concerned Minister and granted opportunity to each of such allottee to inspect the relevant file dealing with the allotment in his/her favour and then heard the said allottee before passing the final order, either discharging notice of cancellation or cancelling the allotment made. In this view of the matter, we hardly find any justification in the submission of Mr. Bhandari that the entire proceedings are vitiated as notice under Order I Rule 8, CPC had not been given. If the allottee like the appellant whose allotment has been cancelled by the impugned order, had the opportunity of examining the materials on the file of the Government, wherein his case of allotment has been dealt with and had the opportunity of filing his show-cause, pursuant to the notice of cancellation that had been issued and the allotment in his case having been cancelled on the ground that the concerned Minister did not make any verification with regard to the necessary criteria indicated in the application for discretionary allotment, we fail to understand how a contention could be raised that the whole procedure adopted is vitiated for non-compliance of the procedure under Order I Rule 8, CPC. The object of Order I Rule 8, CPC is to give notice to persons likely to be affected by litigation, so that they may be heard. If the Court would have directed issuance of notice under Order I Rule 8, CPC without giving individual notice to the allottees to show-cause why the allotment will not be cancelled, then that perhaps would have been an infraction and violation of the principle of natural justice. But in this case, each and every allottee had been duly noticed, they have filed their replies to the notices, they have availed of the opportunity of examining the original file, wherein the case of discretionary allotment had been dealt with and it was only after hearing them that the orders of cancellation had been passed. We have, therefore, no hesitation in answering this question that there was no requirement of following the procedure under Order I Rule 8 nor can it be said that the entire exercise is vitiated26. So far as the eighth question is concerned, it was repeatedly argued before us by several Counsels that the concerned Minister was not required to verify and since the order of allotment stipulates that the Oil Company would verify before granting the agency in question that itself is a good verification and, consequently, the High Court was in error in cancelling the allotment on the ground that there had been no proper verification. It is no doubt true that the Minister having exercised his discretion and allotting a particular agency in favour of the applicant, has required the Oil Company to make necessary verification before entering into an agreement with the allottee, but that verification supposed to have been done by the Oil Company has nothing to do with the materials on which the subjective satisfaction of the Minister was arrived at for exercise of his discretion in favour of any individual for any justifiable reason. When a State property as distinct from a private property is being dealt with by a Minister then it is of paramount importance that such public property must be dealt with for public purpose and in the public interest. The disposal of a public property undoubtedly partakes the character of a trust and, therefore, in the matter of such disposal, there should not be any suspicion of a lack of principle. The exercise of discretion must not be arbitrary or capricious or for any extraneous considerations. It is in that context when the Court was examining each and every individual case of discretionary allotment, the Court was trying to find out whether there existed some materials, on the basis of which the Minister could be said to have arrived at his subjective satisfaction for exercise of his discretion in favour of the applicant. It is the so-called satisfaction of the Minister for exercise of his discretionary power and making the grant that was being examined and scrutinized by the Court and only when the Court found that there had been absolutely no materials or that Minister had made the grant without making any inquiry or verification, that the Court had interfered with the allotments in question, obviously on a conclusion that such allotments had been arbitrarily made. The subsequent inquiry supposed to have been conducted by the Oil Company cannot replace the pre-conditions for exercise of discretion by the Minister. If the initial order of allotment by exercise of discretion is vitiated on the ground of absence of any materials or verification by the concerned authority who has exercised the discretion, then the so-called subsequent inquiry by the Oil Company which operates in different fields cannot make the so-called arbitrary order of the Minister a legal or just order. This being the position, we see no force in the submission made by the Counsel appearing for the appellants in this score. The same accordingly stands rejected27. The next question which arises for consideration is whether the judgment of this Court in Civil Appeal No. 6840 of 2001 and principles evolved therein can be applied to the case in hand, so as to protect the allotments already made under the discretionary quota. The aforesaid case no doubt was a case of allotment of land by the Chief Minister of a State in the State of Haryana. The High Court of Punjab and Haryana by its order dated 20th January, 1988 disposed of the case of S.R. Dass v. State of Haryana, 1988 Punjab Law Journal page 123, under which it formulated certain principles on which the discretionary allotments could be made with certain conditions. The so-called discretionary allotments made by the Government and HUDA, pursuant to the earlier judgment of Punjab and Haryana High Court were sought to be assailed as being contrary to certain stricter principles, which were evolved in the case of Anil Sabharwal which stood disposed of on 5.12.1997. This Court in the appeal in question held that the stricter scrutiny required to be made as per the guidelines evolved in Anils case, must be made applicable to the period subsequent to the judgment viz. 5.12.1997 and allotments made between 1988 and 1997 in accordance with the principles and guidelines indicated in S.R. Dass case, were protected by applying the principle of prospective application, so far as the judgment in Anils case. We fail to understand how the aforesaid principle can apply to the case in hand where the allotments made prior to the judgment of this Court in Centre for Public Interest Litigation, 1995(3) Supp. (3) SCC 382, are the subject matter of scrutiny and had been made indiscriminately, as there had been no guiding principle for making such allotments. Consequently, the principles evolved in Civil Appeal No. 6840 of 2001, will have no application at all to the present appeals. The said contention, therefore, must fail | 0 | 14,259 | 3,225 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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fail to understand how a contention could be raised that the whole procedure adopted is vitiated for non-compliance of the procedure under Order I Rule 8, CPC. The object of Order I Rule 8, CPC is to give notice to persons likely to be affected by litigation, so that they may be heard. If the Court would have directed issuance of notice under Order I Rule 8, CPC without giving individual notice to the allottees to show-cause why the allotment will not be cancelled, then that perhaps would have been an infraction and violation of the principle of natural justice. But in this case, each and every allottee had been duly noticed, they have filed their replies to the notices, they have availed of the opportunity of examining the original file, wherein the case of discretionary allotment had been dealt with and it was only after hearing them that the orders of cancellation had been passed. We have, therefore, no hesitation in answering this question that there was no requirement of following the procedure under Order I Rule 8 nor can it be said that the entire exercise is vitiated. 26. So far as the eighth question is concerned, it was repeatedly argued before us by several Counsels that the concerned Minister was not required to verify and since the order of allotment stipulates that the Oil Company would verify before granting the agency in question that itself is a good verification and, consequently, the High Court was in error in cancelling the allotment on the ground that there had been no proper verification. It is no doubt true that the Minister having exercised his discretion and allotting a particular agency in favour of the applicant, has required the Oil Company to make necessary verification before entering into an agreement with the allottee, but that verification supposed to have been done by the Oil Company has nothing to do with the materials on which the subjective satisfaction of the Minister was arrived at for exercise of his discretion in favour of any individual for any justifiable reason. When a State property as distinct from a private property is being dealt with by a Minister then it is of paramount importance that such public property must be dealt with for public purpose and in the public interest. The disposal of a public property undoubtedly partakes the character of a trust and, therefore, in the matter of such disposal, there should not be any suspicion of a lack of principle. The exercise of discretion must not be arbitrary or capricious or for any extraneous considerations. It is in that context when the Court was examining each and every individual case of discretionary allotment, the Court was trying to find out whether there existed some materials, on the basis of which the Minister could be said to have arrived at his subjective satisfaction for exercise of his discretion in favour of the applicant. It is the so-called satisfaction of the Minister for exercise of his discretionary power and making the grant that was being examined and scrutinized by the Court and only when the Court found that there had been absolutely no materials or that Minister had made the grant without making any inquiry or verification, that the Court had interfered with the allotments in question, obviously on a conclusion that such allotments had been arbitrarily made. The subsequent inquiry supposed to have been conducted by the Oil Company cannot replace the pre-conditions for exercise of discretion by the Minister. If the initial order of allotment by exercise of discretion is vitiated on the ground of absence of any materials or verification by the concerned authority who has exercised the discretion, then the so-called subsequent inquiry by the Oil Company which operates in different fields cannot make the so-called arbitrary order of the Minister a legal or just order. This being the position, we see no force in the submission made by the Counsel appearing for the appellants in this score. The same accordingly stands rejected. 27. The next question which arises for consideration is whether the judgment of this Court in Civil Appeal No. 6840 of 2001 and principles evolved therein can be applied to the case in hand, so as to protect the allotments already made under the discretionary quota. The aforesaid case no doubt was a case of allotment of land by the Chief Minister of a State in the State of Haryana. The High Court of Punjab and Haryana by its order dated 20th January, 1988 disposed of the case of S.R. Dass v. State of Haryana, 1988 Punjab Law Journal page 123, under which it formulated certain principles on which the discretionary allotments could be made with certain conditions. The so-called discretionary allotments made by the Government and HUDA, pursuant to the earlier judgment of Punjab and Haryana High Court were sought to be assailed as being contrary to certain stricter principles, which were evolved in the case of Anil Sabharwal which stood disposed of on 5.12.1997. This Court in the appeal in question held that the stricter scrutiny required to be made as per the guidelines evolved in Anil Sabharwals case, must be made applicable to the period subsequent to the judgment viz. 5.12.1997 and allotments made between 1988 and 1997 in accordance with the principles and guidelines indicated in S.R. Dass case, were protected by applying the principle of prospective application, so far as the judgment in Anil Sabharwals case. We fail to understand how the aforesaid principle can apply to the case in hand where the allotments made prior to the judgment of this Court in Centre for Public Interest Litigation, 1995(3) Supp. (3) SCC 382, are the subject matter of scrutiny and had been made indiscriminately, as there had been no guiding principle for making such allotments. Consequently, the principles evolved in Civil Appeal No. 6840 of 2001, will have no application at all to the present appeals. The said contention, therefore, must fail.
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for discretionary allotment, we fail to understand how a contention could be raised that the whole procedure adopted is vitiated for non-compliance of the procedure under Order I Rule 8, CPC. The object of Order I Rule 8, CPC is to give notice to persons likely to be affected by litigation, so that they may be heard. If the Court would have directed issuance of notice under Order I Rule 8, CPC without giving individual notice to the allottees to show-cause why the allotment will not be cancelled, then that perhaps would have been an infraction and violation of the principle of natural justice. But in this case, each and every allottee had been duly noticed, they have filed their replies to the notices, they have availed of the opportunity of examining the original file, wherein the case of discretionary allotment had been dealt with and it was only after hearing them that the orders of cancellation had been passed. We have, therefore, no hesitation in answering this question that there was no requirement of following the procedure under Order I Rule 8 nor can it be said that the entire exercise is vitiated26. So far as the eighth question is concerned, it was repeatedly argued before us by several Counsels that the concerned Minister was not required to verify and since the order of allotment stipulates that the Oil Company would verify before granting the agency in question that itself is a good verification and, consequently, the High Court was in error in cancelling the allotment on the ground that there had been no proper verification. It is no doubt true that the Minister having exercised his discretion and allotting a particular agency in favour of the applicant, has required the Oil Company to make necessary verification before entering into an agreement with the allottee, but that verification supposed to have been done by the Oil Company has nothing to do with the materials on which the subjective satisfaction of the Minister was arrived at for exercise of his discretion in favour of any individual for any justifiable reason. When a State property as distinct from a private property is being dealt with by a Minister then it is of paramount importance that such public property must be dealt with for public purpose and in the public interest. The disposal of a public property undoubtedly partakes the character of a trust and, therefore, in the matter of such disposal, there should not be any suspicion of a lack of principle. The exercise of discretion must not be arbitrary or capricious or for any extraneous considerations. It is in that context when the Court was examining each and every individual case of discretionary allotment, the Court was trying to find out whether there existed some materials, on the basis of which the Minister could be said to have arrived at his subjective satisfaction for exercise of his discretion in favour of the applicant. It is the so-called satisfaction of the Minister for exercise of his discretionary power and making the grant that was being examined and scrutinized by the Court and only when the Court found that there had been absolutely no materials or that Minister had made the grant without making any inquiry or verification, that the Court had interfered with the allotments in question, obviously on a conclusion that such allotments had been arbitrarily made. The subsequent inquiry supposed to have been conducted by the Oil Company cannot replace the pre-conditions for exercise of discretion by the Minister. If the initial order of allotment by exercise of discretion is vitiated on the ground of absence of any materials or verification by the concerned authority who has exercised the discretion, then the so-called subsequent inquiry by the Oil Company which operates in different fields cannot make the so-called arbitrary order of the Minister a legal or just order. This being the position, we see no force in the submission made by the Counsel appearing for the appellants in this score. The same accordingly stands rejected27. The next question which arises for consideration is whether the judgment of this Court in Civil Appeal No. 6840 of 2001 and principles evolved therein can be applied to the case in hand, so as to protect the allotments already made under the discretionary quota. The aforesaid case no doubt was a case of allotment of land by the Chief Minister of a State in the State of Haryana. The High Court of Punjab and Haryana by its order dated 20th January, 1988 disposed of the case of S.R. Dass v. State of Haryana, 1988 Punjab Law Journal page 123, under which it formulated certain principles on which the discretionary allotments could be made with certain conditions. The so-called discretionary allotments made by the Government and HUDA, pursuant to the earlier judgment of Punjab and Haryana High Court were sought to be assailed as being contrary to certain stricter principles, which were evolved in the case of Anil Sabharwal which stood disposed of on 5.12.1997. This Court in the appeal in question held that the stricter scrutiny required to be made as per the guidelines evolved in Anils case, must be made applicable to the period subsequent to the judgment viz. 5.12.1997 and allotments made between 1988 and 1997 in accordance with the principles and guidelines indicated in S.R. Dass case, were protected by applying the principle of prospective application, so far as the judgment in Anils case. We fail to understand how the aforesaid principle can apply to the case in hand where the allotments made prior to the judgment of this Court in Centre for Public Interest Litigation, 1995(3) Supp. (3) SCC 382, are the subject matter of scrutiny and had been made indiscriminately, as there had been no guiding principle for making such allotments. Consequently, the principles evolved in Civil Appeal No. 6840 of 2001, will have no application at all to the present appeals. The said contention, therefore, must fail
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Malay Kumar Ganguly Vs. Sukumar Mukherjee | Negligence must be of a gross or a very high degree to amount to Criminal Negligence. Medical science is a complex science. Before an inference of medical negligence is drawn, the court must hold not only existence of negligence but also omission or commission on his part upon going into the depth of the working of the professional as also the nature of the job. The cause of death should be direct or proximate. A distinction must be borne in mind between civil action and the criminal action. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much high degree. A negligence which is not of such a high degree may provide a ground for action in civil law but cannot form the basis for prosecution. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. SHIFTING OF BLAME It is also of some great significance that both in the criminal as also the civil cases, the concerned doctors took recourse to the blame game. Some of them tried to shirk their individual responsibilities. We may in this behalf notice the following: (i) In response to the notice of Dr. Kunal, Dr. Mukherjee says that Depomedrol had not been administered at all. When confronted with his prescription, he suggested that the reply was not prepared on his instructions, but on the instruction of AMRI. (ii) Dr. Mukherjee, thus, sought to disown his prescription at the first instance. So far as his prescription dated 11th May, 1998 is concerned, according to him, because he left Calcutta for attending an international conference, the prescription issued by him became non-operative and, thus, he sought to shift the blame on Dr. Halder. (iii) Dr. Mukherjee and Dr. Halder have shifted the blame to Dr. Prasad and other doctors. Whereas Dr. Prasad counter-charged the senior doctors including the respondent No. 2 stating: "Prof. B.N. Halder (Respondent No. 2) was so much attached with the day to day treatment of patient Anuradha that he never found any deficiency in overall management at AMRI so much so that he had himself given a certificate that her condition was very much fit enough to travel to Mumbai..." In answer to a question as to whether Dr. Halder had given specific direction to him for control of day to day medicine to Anuradha, he stated: "...this was done under the guidance of Dr. Sukumar Mukherjee (Respondent No. 1), Dr. B.N. Halder (Respondent No. 2) and Dr. Abani Roychowdhury (Respondent No. 3)" He furthermore stated that those three senior doctors primarily decided the treatment regimen for Anuradha at AMRI. (iv) Dr. Kaushik Nandy had also stated that three senior doctors were incharge of Anuradhas treatment. (v) AMRI states that the drugs had been administered and nursing care had been given as per the directions of the doctors. (vi) Respondent Nos. 5 and 6, therefore, did not own any individual responsibility on themselves although they were independent Physicians with Post Graduate medical qualifications. In `Errors, Medicine and the Law, Cambridge University Press, p.14., the authors, Alan Merry and Alexander McCall Smith, 2001 ed., stated: "Many incidents involve a contribution from more than one person, and this case is an example. It illustrates the tendency to blame the last identifiable element in the claim of causation – the person holding the `smoking gun. A more comprehensive approach would identify the relative contributions of the other failures in the system, including failures in the conduct of other individuals..." In R v. Yogasa Karan [1990] 1 NZLR 399, the New Zealand Court opined that the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities. [See also Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed., Cambridge University Press, p.12] It is generally expected that very senior doctors would behave responsibly, and they were entitled to take any defence which is available to them but they should not resort to mudslinging. This being a case where both sides being doctors, fair dealings were expected from them. CUMULATIVE EFFECT OF NEGLIGENCE A patient would feel the deficiency in service having regard to the cumulative effect of negligence of all concerned. Negligence on the part of each of the treating doctors as also the hospital may have been contributing factors to the ultimate death of the patient. But, then in a case of this nature, the court must deal with the consequences the patient faced keeping in view the cumulative effect. In the instant case, negligent action has been noticed with respect to more than one respondent. A cumulative incidence, therefore, has led to the death of the patient. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the respondent. In such a scenario finding of medical negligence under section 304-A cannot be objectively determined. E.2. CONCLUSION | 0[ds]C.3. FINDINGS AND ANALYSIS WITH RESPECT TO SO CALLED CLEAVAGE OF OPINION FINDINGS ON SO CALLED CLEAVAGE OF OPINIONAppellant, thus, has placed on record the view points of expertsboth of theid group.Would it amount to cleavage of opinion so as to enable the court to arrive at a safe conclusion that no negligence is proved or there was no deficiency in service? In other words, the question is as to whether the treatment of Anuradha was in accordance with the medicalprotocol. In our opinion, the answer must be rendered in the negative. Those who support use and administration of steroid do so with note of caution. They in no uncertain terms state that the same should be used at a preliminary stage. Respondents do not spell out as to what would be the preliminary stage. The preliminary stage must have started with the onset of the disease. She had been suffering from skin rash from 3rd week of April, 1998. It increased with the passage of time. The cause of such eruption was not ascertained. In fact what caused the onset of disease was not known. It may be from Chinese food or it may even be from use of vitamin.On and from 7th May, 1998, she was prescribed injection Depomedrol twice a day and Wysolone. It was continued upto 13th May, 1998, nobody even thought of stopping the injection. Dr. Halder although stopped Depomedrol injection from 13th May, 1998, but prescribed a high dose of steroid.No doctor posed unto themselves a basic question why despite use of steroid, condition of the patient was going from bad to worse. It is agreed across the board and at least during trial, that supportive treatment should have been given. The medicine was propagated which did not exist. The medical literatures were not consulted. Even for pulse therapy Depomedrol could not have been used and only Solumedrol could have been used. Kunal in his evidence explained the difference between the two. Dr. Mukherjee in his deposition indirectly accepted the same. Each of thosegroup spoke of a single injection. Nobody suggested on the face of the voluminous medical literature and authoritative opinions of the experts that two injections daily could be prescribed by any prudent physician. A great deed of confusion was sought to be created between one kind of steroid and another. Vague questions were asked from the experts to show that steroids may be used but Dr. Pasricha stated that only a quick acting steroid should be used. Depomedrol is not a quick actingHigh Court as also the Commission principally proceeded on the premise that the respondents herein are not liable either for any act of criminal misconduct or negligence because of cleavage of opinion. The cleavage of opinion, if any, as we have noticed hereinbefore, is betweened treatment protocol so far as thegroup is concerned has also been noticed by us. We have proceeded to determine the question of negligence on the part of the respondents herein principally on the premise that even if the opinion of thegroup is followed, the respondents have failed and/or neglected to even act strictly in terms of the treatment protocol laid down by them. The opinion of thegroup appears to be more scientific and structured but the same by itself, we are conscious of the fact, would not lead us to the conclusion that the respondents are guilty of gross negligence.We may, however, notice that Mr. Fitz Patrick in his book Dermatology in General Medicine (5th Edition), inter alia, opined asAccording to our view, agreement should be used on following for the treatment of TEN:a. Treatment in burn units should be strived for in exceptional cases but is not generally necessary.b. Treatment has to be individually tailored according to cause type and stage and presence and type of complications.c. Systemic glucocorticoids should not be used routinely but are justified in the early stages of drug induced TEN. They should be given in doses from 80 to 120 mg of methlypredisolone per day by mouth, for several days until disease progression has ceased. Dosages should be tapered quickly and cautiously since no further benefit can be expected thereafter and the untoward effects may then predominate.d. Treatment may focus on early detection and prevention of the most fatal complication e.g. overwhelming infection. Cultures from skin and mucosal erosions, must be regularly performed.e. Blood gases and fluid, electrolytes and protein balance must be monitored and adjusted appropriately. Fluid replacement regimens as used for burn patients.f. Supportive care is of great importance and particular attention must be paid to a high calorie and highprotein diet.g. Debridgement of necrotic skin should not performed before disease activity ceases.3. Course and Prognosis: The following factors appear to be unfavourable prognostic signs: old age, extensive skin lesions, nuetropenia, impaired renal function and intake of multiple drugs. Septesemia, gastrointestinal hemorrhage, pnuemoina and fluid and electrolyte imbalance leading to renalinsufficiency are major complications leading to death."As noticed hereinbefore, precautions as also the course of actions suggested by the authors have not been undertaken by the respondents. It is to be noted that the learned authors expertise in the field is neither in doubt nor in dispute, particularly when both parties have extensively relied thereupon. Even the suspected offending drug was not withdrawn at later stages. This drug is considered to be a real risk for the patient suffering from TEN. The medicine has also been administered having regard to the physical condition of the patient. They were required to be given only as a part of the total program. We may also place on record that there has been a cleavage of opinion in regard to mortality rate. Whereas according to the one group of experts in TEN patients when properly treated and in particular given supportive treatment, the mortality rate isthe respondents contend that that in fact the mortality rate is quite high beingCONTRIBUTORY NEGLIGENCEThe High Court as also the Commission opined that the death of Anuradha took place not because of any negligence on the part of the doctors of AMRI but by reason of interference by Kunal Saha. It was on the insistence of Kuanl Saha that the patient was transferred to Bombay. It has been submitted that it was the infection which developed during transportation which ultimately proved fatal.Interference by Kunal at AMRI was sought to be proved through Sutapa Chanda, Nursing Superintendent at AMRI, who appeared asHowever, the statement of the said Nursing Superintendent in regard to the alleged interference by Kunal is not borne out from the record. As a matter of fact she had not been able to explain the medicines which were to be administered to her(Ld. complainant counsel sows the witness Exbt. 8). What do you understand by this line "Fusys 200 mg. / weekly once";3rd line from the end?Ans. Regarding this question I like to say all instructions for mediction in Exbt. 8 were carried out by Dr. Kunal Saha but not by my nurses. If I can not understand this instruction I would have made queries and doctor would clear it. But I had no such chance to make queries regarding this."It is to be noted here that Nursing Superintendent being a professional cannot take this plea. Moreover, the same is not borne out of records at AMRI. Even if we assume this statement to be true, in a professional setting of this nature, these interferences should have been resisted by them. Interference cannot be taken to be an excuse for abdicating ones responsibility especially when an interference could also have been in the nature of suggestion.Same comments were said to have been made by Dr. Halder while making his statement under Section 313 of the Code of Criminal Procedure. They are admissible in evidence for the said purpose. Similarly the statements made by Dr. Mukherjee and Dr. Halder in their written statements before the National Commission are not backed by any evidence on record. Even otherwise, keeping in view the specific defence raised by them individually, interference by Kunal, so far as they are concerned, would amount to hearsay evidence and not direct evidence.Dr. K. Nandy in his evidence stated that he was not allowed to change the dressings on 15th May and 16th May, 1998. However, according to him, he forced his decision to do the dressing on 17th May, 1998 before she was taken away from the hospital.However, it appears from the AMRI records that the name of Kunal only appears once i.e. when he got Anuradha admitted in the hospital. His name is not borne out from any other record. So far as the statement of Dr. Nandy is concerned, Kunals explanation is that he did not follow the medical protocol in the matter of dressing. This may or may not be correct.We may notice that whenever any interference in contrast to the AMRI was attempted to be made by the patient party at Breach Candy Hospital, it had scrupulously been placed on record. Wherever "Dr. Saha" appears in the record, it is evident that the same refers to the elder brother of Kunal, who is a surgeon. However, when there is any discussion with both the brothers, like in the case of Dr. Udwadia, it had been recordedIt is accepted that the elder brother of Kunal came to Mumbai on 17th May, 1998 itself. He brought with him a new antibiotic named "Quinolone" which was not available in India. He persuaded Dr. Udwadia to administer the said injection. This discussion between them has also been recorded. Some adverse remarks have also been recorded with regard to the conduct of Dr. Saha. Dr. Udwadia has noticed in the records of the Breach Candy Hospital that he tolerated the said conduct on the part of the elder brother of Kunal solely for the patients sake.Though some of the suggestions of Dr. Saha did not seem particularly useful to Dr. Udwadia, but those measures which were not harmful to the patient were administered. We, however, may also notice that where Dr. Udwadia thought that there could be some harm to the patient, he did not agree thereto. He, therefore, acted in a professional manner.We may also place on record that despite such elaborate and careful treatment meted out to Anuradha, her condition had been worsening; Dr. Udwadia even agreed to administer the injection "Quinolone" during her last day as he might have thought that there was no harm in trying the same at that juncture.Respondents also sought to highlight on the number of antibiotics which are said to have been administered by Kunal to Anuradha while she was in AMRI contending that the said antibiotics were necessary. Kunal, however, submitted that the said antibiotics were prescribed by the doctors at AMRI and he did not write any prescription. We would, however, assume that the said antibiotics had been administered by Kunal on his own, but it now stands admitted that administration of such antibiotics was necessary.To conclude, it will be pertinent to note that even if we agree that there was interference by Kunal Saha during the treatment, it in no way diminishes the primary responsibility and default in duty on part of the defendants. In spite of a possibility of him playing anrole during the medical proceedings, the breach of duty to take basic standard of medical care on the part of defendants is not diluted. To that extent, contributory negligence is not pertinent. It may, however, have some role to play for the purpose of damages.C.6.OF NECESSARY PARTIESRespondents contend that Dr. Kunal had been selective in prosecuting three principal doctors on the criminal side who allegedly treated Anuradha but some more before the Commission. Contending that no reason has been assigned as to why case against Dr. A.K. Ghoshal as also Breach Candy Hospital and doctors treating Anuradha at Bombay from 17th May, 1998 till 28th May, 1998 had been given up, the learned counsel urged that these appeals should be dismissed on that groundargument has also been advanced that Anuradha was treated by as many as 16 doctors and, thus, there was no reason as to why only the respondents should have been proceeded against. Proceeding should be initiated both under the criminal law as also the tort law only against those who are specifically found to be guilty of criminal misconduct or medical negligence or deficiency in service and not against all. Apart from making a general submission, it has not been pointed out as to what difference would have been made if others were also impleaded as parties. The medical records were before the court. The hospital records of both AMRI and Breach Candy were also before it. AMRI records contained 22 pages, records of Breach Candy runs into more than 400 pages. No party had relied on any evidence other than those records as also the oral evidence and documentary evidence brought on record by them. Respondents have also not pointed out as to how treatment by any other doctor has contributed in any manner to the death of Anuradha.Submissions have also been made at the bar that Kunal issued notices to a large number of persons but withdrew the cases against most of them. It was placed before us that in the first notice there were as many as 26 addresses and in the complaint filed before the National Commission, there were 19 addresses. Withdrawal of cases against some of them, in our opinion, is not of much significance. The Directors of AMRI were impleaded as parties. Cases against them had also been withdrawn and, in our opinion, rightly so as most of them were liable in their personal capacity. Dr. Kunal says that the proceeding against Breach Candy Hospital and doctors treating Anuradha had been withdrawn as the principal grievance against the hospital was that they did not have any burn ward although he was already informed thereabout. Burn ward was also not there in AMRI. In fact, it was brought on record that no nursing home in Calcutta has a separate burn ward. Absence of burn ward by itself, thus, might not be a contributory factor although existence thereof was highly desirable keeping in view the treatment protocol.We must bear in mind that negligence is attributed when existing facilities are not availed of. Medical negligence cannot be attributed for not rendering a facility which was not available. In our opinion, if hospitals knowingly fail to provide some amenities that are fundamental for the patients, it would certainly amount to medical malpractice. As it has been held in Smt. Savita Garg (supra), that a hospital not having basic facilities like oxygen cylinders would not be excusable. Therein this Court has opined that even thehumanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents. The aforementioned principle applies to this case also in so far as it answers the contentions raised before us that the three senior doctors did not charge any professional fees.In any event, keeping in view of the said decision, we are of the firm opinion that notices to a large number of persons and withdrawal of cases against some of them by itself cannot be considered to be a relevant factor for dismissal of these appeals.D. CIVIL LIABILITY UNDER TORT LAW AS ALSO UNDER CONSUMER PROTECTION ACTIn this case, we are concerned with the extent of negligence on the part of the doctors, if any, for the purpose of attracting rigours of Section 304A of the Indian Penal Code as also for attracting the liability to pay compensation to the appellant in terms of the provisions of the Consumer Protection Act, 1986. We intend to deal with these questions separately.It is noteworthy that standard of proof as also culpability requirements under Section 304A of Indian Penal Code stands on an altogether different footing. On comparison of the provisions of Penal Code with the thresholds under the Tort Law or the Consumer Protection Act, a foundational principle that the attributes of care and negligence are not similar under Civil and Criminal branches of Medical Negligence law is borne out. An act which may constitute negligence or even rashness under torts may not amount to same under section 304A.Bearing this in mind, we further elaborate on both the questions separately.D.1. LAW OF NEGLIGENCE UNDER TORT LAWNegligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. [See Law of Torts, Ratanlal & DhirajlalEdition 2002, atmeans "either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstance have to be taken into account." [See Municipal Corpn. Of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731 , para 6; Adavanced Law Lexicon, P Ramanatha Aiyar, 3rd ed. 2005, p. 3161]Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinarylaw on medical negligence also has to keep up with the advances in the medical science as to treatment as also diagnostics. Doctors increasingly must engage with patients during treatments especially when the line of treatment is a contested one and hazards are involved. Standard of care in such cases will involve the duty to disclose to patients about the risks of serious side effects or about alternative treatments. In the times to come, litigation may be based on the theory of lack of informed consent. A significant number of jurisdictions, however, determine the existence and scope of the doctors duty to inform based on the information a reasonable patient would find material in deciding whether or not to undergo the proposed therapy. [SeeCanterbury v. Spence,F.2d 772 (D.C. Cir. 1972), cert. denied, 409 U.S.(19r72); see alsoCobbs v. Grant, 8 Cal. 3d4 Cal. Rptr.2 P.2d 1n v. Hardy, 37 Colo. App.9 P.2d 1099In this respect, the only reasonable guarantee of a patients right of bodily integrity andis for courts to apply a stringent standard of disclosure in conjunction with a presumption of proximate cause. At the same time, a reasonable measure of autonomy for the doctor is also pertinent to be safeguarded from unnecessary interference.D.2. TRANSPORTATIONSo far as transportation of Anuradha from Kolkata to Mumbai is concerned, we must place on record that a certificate in that behalf was given by Dr. Baidyanath Halder correctness whereof, except for the words "for better treatment" is not in dispute. Dr. Halder does not contend that the contents of the same are wrong. He merely says that the same was issued at the instance of the patient. The submission of Dr. Halder that he had issued the certificate without seeing the patient cannot be believed. If that be so, such a certificate could have been issued by Dr. Balram Prasad and/or any other doctor. Why he had taken the burden of issuing such a certificate is not explained.We are of the opinion that a conclusion as to whether the words "for better treatment" have been inserted in the said certificate or not or the same was done at the instance of Kunal, is wholly unnecessary for our purpose. Theonly question which arises is as to whether there was any risk of Anuradha developing infection due to exposure duringtransportation. She was flown to Mumbai by an exclusive chartered flight (air ambulance) ofRescue of Delhi. Kunal had to pay about $ 2000 for the said purpose. Respondents did not suggest that the service provided by the said airlines was of inferior character or sufficient precautions were not taken during transportation. In fact, the condition of Anuradha was so critical that there was no other option but to take her to a better hospital. Her transportation to Mumbai was necessary and was not an act borne out of desperation alone.We may notice that even a couple of Kunals friends, who were doctors, came to Mumbai by Jet Airways flight.It appears that East West Rescue of Delhi, which provided air ambulance, must have taken all necessary precautions. Although lot of literature on the subject relating to the services of the said airlines showing that it is considered to be one of best in the world is available, we refrain from dealing with the same, as it is not necessary.Dr. Udwadia made a comment that transportation of Anuradha from Kolkata to Mumbai may have exposed her to infection. He, however, added a proviso theretounless better care was taken. There was no reason as to why the proper care was not taken, particularly seeing her condition. There is no evidence on record leading to an opposite conclusion. Dr. Nandy, stated dressing was necessary before transportation. He must have done so keeping in view the necessity of prevention of further infection during flight. At Bombay, Dr. Kulkarni noticed a green patch showing old infection. It must have escaped the notice of even Dr. Nandy. Dr. Kulkarni noticing the same, observed that the patients condition was worse than he anticipated.D.3. LEGITIMATE EXPECTATIONKunal approached the best doctors available. He admitted his wife at AMRI on the recommendation of Dr. Mukherjee, evidently, expecting the best possible treatment from the renowned doctors and a renowned hospital. It was not too much for a patient to expect the best treatment from the doctors of the stature of Dr. Mukherjee, Dr. Halder and Dr. Abani Roy Chowdhury. Services of other experts in fields were requisitioned by the Hospital. References were made and the Hospital on the basis of the recommendations made by the doctors themselves consulted the best doctors in their respective fields. Kunal or Anuradha or his relatives never interfered therewith. They did not call any doctor of their choice to the Hospital. In fact, after Dr. A.K. Ghoshal came to know that Anuradha was suffering from TEN, he suggested a line of treatment which was not adhered to keeping in view the fact that Dr. Halder and hospital authorities were in charge of the case.The standard of duty to care in medical services may also be inferred after factoring in the position and stature of the doctors concerned as also the hospital; the premium stature of services available to the patient certainly raises a legitimate expectation. We are not oblivious that the source of the said doctrine is in administrative law. A little expansion of the said doctrine having regard to an implied nature of service which is to be rendered, in our opinion, would not be quite out of place.AMRI makes a representation that it is one of the best hospitals in Calcutta and provides very good medical care to its patients. In fact the learned Senior Counsel appearing on behalf of the respondents, when confronted with the question in regard to maintenance of the nurses register, urged that it is not expected that in AMRI regular daily medicalwould not have been conducted. We thought so, but the records suggest otherwise. The deficiency in service emanates therefrom. Even in the matter of determining the deficiency in medical service, it is nowINDIVIDUAL LIABILITY OF THE DOCTORSThere cannot be, however, by any doubt or dispute that for establishing medical negligence or deficiency in service, the courts would determine the following:(i) No guarantee is given by any doctor or surgeon that the patient would be cured.(ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.(iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.(iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.(v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.Bearing in mind the aforementioned principles, the individual liability of the doctors and hospital must be judged.We enumerate heretobelow the duty of care which ought to have been taken and the deficiency whereof is being complained of in the criminal case and the civil case, respectively, so far as respondent Nos. 1 to 3 are concerned.When Dr. Mukherjee examined Anuradha, she had rashes all over her body and this being the case of dermatology, he should have referred her to a dermatologist. Instead, he prescribed "Depomedrol" for the next 3 days on his assumption that it was a case of "vasculitis". The dosage of 120 mg Depomedrol per day is certainly a higher dose in case of a TEN Patient or for that matter any patient suffering from any other bypass of skin disease and the maximum recommended usage by the drug manufacturer has also been exceeded by Dr. Mukherjee. On 11th May, 1998, the further prescription of Depomedrol without diagnosing the nature of the disease is a wrongful act on his part.According to general practice, long acting steroids are not advisable in any clinical condition, as noticed hereinbefore. However, instead of prescribing to a quick acting steroid, the prescription of a long acting steroid without foreseeing its implications is certainly an act of negligence on his part without exercising any care or caution. As it has been already stated by the Experts who were cross examined and the authorities that have been submitted that the usage ofmg is not permissible in TEN.Furthermore, after prescribing a steroid, the effect of immunosuppression caused due to it, ought to have been foreseen. The effect of immunosuppression caused due to the use of steroids has affected the immunity of the patient and Dr. Mukherjee has failed to take note of the said consequences.After taking over the treatment of the patient and detecting TEN, Dr. Halder ought to have necessarily verified the previous prescription that has been given to the patient. On 12th May, 1998 although `depomedrol was stopped, Dr. Halder did not take any remedial measures against the excessive amount of `depomedrol that was already stuck in the patients body and added more fuel to the fire by prescribing a quick acting steroid `Prednisolone at 40mg three times daily, which is an excessive dose, considering the fact that a huge amount of "Depomedrol" has been already accumulated in the body.Life saving `supportive therapy including IV fluids/ electrolyte replacement, dressing of skin wounds and close monitoring of infection is mandatory for proper care of TEN patients. Skin(wound) swap and blood tests also ought to be performed regularly to detect the degree of infection. Apart from using the steroids, aggressive supportive therapy that is considered to be rudimentary for TEN patients was not provided by Dr. Halder. Furtherof a patient such as temperature, pulse,and blood pressure were not monitored. All these factors are considered to be the very basic necessary amenities to be provided to any patient, who is critically ill. The failure of Dr. Halder to ensure that these factors are monitored regularly is certainly an act of negligence.Occlusive dressing were carried as a result of which the infection had been increased. Dr Halders prescription was against the Canadian treatment protocol reference to which we have already made herein before.It is the duty of the doctors to prevent further spreading of infections. How that is to be done is the doctors concern. Hospitals or nursing homes where a patient is taken for better treatment should not be a place for getting infection.After coming to know that the patient is suffering from TEN, Dr. Abani Roy Chowdhury ought to have ensured that supportive therapy had been given. He had treated the patient along with Dr. Halder and failed to provide any supportive therapy or advise for providing IV fluids or other supplements that is a necessity for the patient who was critically ill.As regards, individual liability of the respondent Nos 4, 5 and 6 is concerned, we may notice the same hereunder.As regards AMRI, it may be noticed:(i) Vital parameters of Anuradha were not examined between 11.05.1998 to 16.05.1998 (Body Temperature, Respiration Rate, pulse, BP and urine input and output)(ii) I.V. Fuid not administered. (I.V. fluid administration is absolutely necessary in the first 48 hours of treating TEN)As regards, Dr. Balaram Prasad, Respondent No. 5, it may be noticed:(i) Most Doctors refrain from using steroids at the later stage of the diseasedue to the fear of Sepsis, yet he added more steroids in the form of quickacting "Prednisolone" at 40g three times a day.(ii) He stood as second fiddle to the treatment and failed to apply his own mind.(iii) No doctor has the right to use the drug beyond the maximum recommended dose.So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the hospital or the doctors. We are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts, viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence. | 0 | 28,613 | 5,508 | ### 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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Negligence must be of a gross or a very high degree to amount to Criminal Negligence. Medical science is a complex science. Before an inference of medical negligence is drawn, the court must hold not only existence of negligence but also omission or commission on his part upon going into the depth of the working of the professional as also the nature of the job. The cause of death should be direct or proximate. A distinction must be borne in mind between civil action and the criminal action. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much high degree. A negligence which is not of such a high degree may provide a ground for action in civil law but cannot form the basis for prosecution. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. SHIFTING OF BLAME It is also of some great significance that both in the criminal as also the civil cases, the concerned doctors took recourse to the blame game. Some of them tried to shirk their individual responsibilities. We may in this behalf notice the following: (i) In response to the notice of Dr. Kunal, Dr. Mukherjee says that Depomedrol had not been administered at all. When confronted with his prescription, he suggested that the reply was not prepared on his instructions, but on the instruction of AMRI. (ii) Dr. Mukherjee, thus, sought to disown his prescription at the first instance. So far as his prescription dated 11th May, 1998 is concerned, according to him, because he left Calcutta for attending an international conference, the prescription issued by him became non-operative and, thus, he sought to shift the blame on Dr. Halder. (iii) Dr. Mukherjee and Dr. Halder have shifted the blame to Dr. Prasad and other doctors. Whereas Dr. Prasad counter-charged the senior doctors including the respondent No. 2 stating: "Prof. B.N. Halder (Respondent No. 2) was so much attached with the day to day treatment of patient Anuradha that he never found any deficiency in overall management at AMRI so much so that he had himself given a certificate that her condition was very much fit enough to travel to Mumbai..." In answer to a question as to whether Dr. Halder had given specific direction to him for control of day to day medicine to Anuradha, he stated: "...this was done under the guidance of Dr. Sukumar Mukherjee (Respondent No. 1), Dr. B.N. Halder (Respondent No. 2) and Dr. Abani Roychowdhury (Respondent No. 3)" He furthermore stated that those three senior doctors primarily decided the treatment regimen for Anuradha at AMRI. (iv) Dr. Kaushik Nandy had also stated that three senior doctors were incharge of Anuradhas treatment. (v) AMRI states that the drugs had been administered and nursing care had been given as per the directions of the doctors. (vi) Respondent Nos. 5 and 6, therefore, did not own any individual responsibility on themselves although they were independent Physicians with Post Graduate medical qualifications. In `Errors, Medicine and the Law, Cambridge University Press, p.14., the authors, Alan Merry and Alexander McCall Smith, 2001 ed., stated: "Many incidents involve a contribution from more than one person, and this case is an example. It illustrates the tendency to blame the last identifiable element in the claim of causation – the person holding the `smoking gun. A more comprehensive approach would identify the relative contributions of the other failures in the system, including failures in the conduct of other individuals..." In R v. Yogasa Karan [1990] 1 NZLR 399, the New Zealand Court opined that the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities. [See also Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed., Cambridge University Press, p.12] It is generally expected that very senior doctors would behave responsibly, and they were entitled to take any defence which is available to them but they should not resort to mudslinging. This being a case where both sides being doctors, fair dealings were expected from them. CUMULATIVE EFFECT OF NEGLIGENCE A patient would feel the deficiency in service having regard to the cumulative effect of negligence of all concerned. Negligence on the part of each of the treating doctors as also the hospital may have been contributing factors to the ultimate death of the patient. But, then in a case of this nature, the court must deal with the consequences the patient faced keeping in view the cumulative effect. In the instant case, negligent action has been noticed with respect to more than one respondent. A cumulative incidence, therefore, has led to the death of the patient. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the respondent. In such a scenario finding of medical negligence under section 304-A cannot be objectively determined. E.2. CONCLUSION
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competent degree of skill, which may not be the highest skill.(iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.(iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.(v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.Bearing in mind the aforementioned principles, the individual liability of the doctors and hospital must be judged.We enumerate heretobelow the duty of care which ought to have been taken and the deficiency whereof is being complained of in the criminal case and the civil case, respectively, so far as respondent Nos. 1 to 3 are concerned.When Dr. Mukherjee examined Anuradha, she had rashes all over her body and this being the case of dermatology, he should have referred her to a dermatologist. Instead, he prescribed "Depomedrol" for the next 3 days on his assumption that it was a case of "vasculitis". The dosage of 120 mg Depomedrol per day is certainly a higher dose in case of a TEN Patient or for that matter any patient suffering from any other bypass of skin disease and the maximum recommended usage by the drug manufacturer has also been exceeded by Dr. Mukherjee. On 11th May, 1998, the further prescription of Depomedrol without diagnosing the nature of the disease is a wrongful act on his part.According to general practice, long acting steroids are not advisable in any clinical condition, as noticed hereinbefore. However, instead of prescribing to a quick acting steroid, the prescription of a long acting steroid without foreseeing its implications is certainly an act of negligence on his part without exercising any care or caution. As it has been already stated by the Experts who were cross examined and the authorities that have been submitted that the usage ofmg is not permissible in TEN.Furthermore, after prescribing a steroid, the effect of immunosuppression caused due to it, ought to have been foreseen. The effect of immunosuppression caused due to the use of steroids has affected the immunity of the patient and Dr. Mukherjee has failed to take note of the said consequences.After taking over the treatment of the patient and detecting TEN, Dr. Halder ought to have necessarily verified the previous prescription that has been given to the patient. On 12th May, 1998 although `depomedrol was stopped, Dr. Halder did not take any remedial measures against the excessive amount of `depomedrol that was already stuck in the patients body and added more fuel to the fire by prescribing a quick acting steroid `Prednisolone at 40mg three times daily, which is an excessive dose, considering the fact that a huge amount of "Depomedrol" has been already accumulated in the body.Life saving `supportive therapy including IV fluids/ electrolyte replacement, dressing of skin wounds and close monitoring of infection is mandatory for proper care of TEN patients. Skin(wound) swap and blood tests also ought to be performed regularly to detect the degree of infection. Apart from using the steroids, aggressive supportive therapy that is considered to be rudimentary for TEN patients was not provided by Dr. Halder. Furtherof a patient such as temperature, pulse,and blood pressure were not monitored. All these factors are considered to be the very basic necessary amenities to be provided to any patient, who is critically ill. The failure of Dr. Halder to ensure that these factors are monitored regularly is certainly an act of negligence.Occlusive dressing were carried as a result of which the infection had been increased. Dr Halders prescription was against the Canadian treatment protocol reference to which we have already made herein before.It is the duty of the doctors to prevent further spreading of infections. How that is to be done is the doctors concern. Hospitals or nursing homes where a patient is taken for better treatment should not be a place for getting infection.After coming to know that the patient is suffering from TEN, Dr. Abani Roy Chowdhury ought to have ensured that supportive therapy had been given. He had treated the patient along with Dr. Halder and failed to provide any supportive therapy or advise for providing IV fluids or other supplements that is a necessity for the patient who was critically ill.As regards, individual liability of the respondent Nos 4, 5 and 6 is concerned, we may notice the same hereunder.As regards AMRI, it may be noticed:(i) Vital parameters of Anuradha were not examined between 11.05.1998 to 16.05.1998 (Body Temperature, Respiration Rate, pulse, BP and urine input and output)(ii) I.V. Fuid not administered. (I.V. fluid administration is absolutely necessary in the first 48 hours of treating TEN)As regards, Dr. Balaram Prasad, Respondent No. 5, it may be noticed:(i) Most Doctors refrain from using steroids at the later stage of the diseasedue to the fear of Sepsis, yet he added more steroids in the form of quickacting "Prednisolone" at 40g three times a day.(ii) He stood as second fiddle to the treatment and failed to apply his own mind.(iii) No doctor has the right to use the drug beyond the maximum recommended dose.So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the hospital or the doctors. We are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts, viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
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New India Assurance Company Limited Vs. Joginderkaur Satwindersingh Padda & Others | person, viz., Vaidya, is available as an eye-witness to actually narrate with any accuracy what exactly transpired. Once we find that even that evidence is insufficient or not sufficiently cogent to warrant credibility, then there is no reason to find fault with the impugned judgment at least on this score. We must also bear in mind that Vaidya chose, for whatever reason, not to file a written statement. This is indeed strange for he was a party respondent and in response could have clearly set out in his pleadings his version of the events.21. Mr. Mahadiks emphasis, therefore, on Vaidyas testimony is, in our view, without foundation. Vaidyas evidence that he was proceeding at 10-15 kmph is uncompelling. It is argued that correctly read the evidence shows that Vaidya had almost negotiated the turn. This is the purest conjecture; Vaidya himself does not say so and he also does not say, as we have noted, in which direction he was turning, a matter only he could depose to, and one that makes all the difference. The submission that Vaidyas car was damaged from the rear also does not in and of itself establish negligence on Satwindersinghs part. As a matter of law, contributory negligence is a matter that must be both pleaded and proved. Vaidya, as we have noted, filed no written statement, though certainly he could have taken such a plea. More importantly, in its own written statement, the Insurance Company also did not take the plea of contributory negligence. It could have done so, for the basis of Mr. Mahadiks submission is simply that the rear of Vaidyas car was damaged and that this, ipso facto, establishes contributory negligence. The fact of the rear of the car having been damaged was known from the time of the accident onward, and certainly could not have been unknown to the Insurance Company before it filed its written statement. Yet no such plea is to be found in its written statement.22. In any case, it is well settled that the Tribunal is not bound by strict rules of evidence or pleading and that in matters such as this, and indeed generally, a Court must be guided by an assessment of the preponderance of probabilities. Mr. Vaidyas narrative seems to us entirely improbable. That he attempted to deflect blame is evident from his testimony when he says that he was told by others that the deceased was always riding his bike at a high speed. This evidence was quite correctly not considered by the Court at all. It violates the rule against hearsay evidence. It is no proof of rashness or negligence (or habitual rashness or negligence) on the part of Satwindersingh.23. This leaves us with the question of an assessment of the deceaseds income. The income-tax returns for the years 2006-2007, 2007-2008 and for the Assessment Year 2008-2009 (i.e. Financial Year from 1st April 2007 to 31st March 2008) were introduced in evidence. In the impugned judgment, the Tribunal has taken the deceaseds income as Rs.6,00,000/-. A question is raised before us by the learned counsel for the Appellants as to how the Tribunal could possibly have arrived at this figure. The answer lies in the last return for the Assessment Year 2008-2009. This shows a total salary of the deceased as Rs.6,30,000/- with tax deductions approximately of Rs.30,000/-, leaving an income of Rs.6,00,000/-. This is the figure that has been accepted by the MACT. We are not impressed by the submission that the income for the previous years was lower or that it is an average that should be taken.24. From the income Rs.6,00,000/-, one-fourth amount has been deducted since the deceased was survived by his widow and two minors. This leads to a figure of Rs.4,50,000/-. At the time of his death Mr. Satwindersingh was 39 years old and, therefore, following the decision of the Supreme Court in Sarla Verma v Delhi Transport Corporation, (2009) 6 SCC 121 : 2009 ACJ 1298 (SC), a multiplier of 16 has been taken. In addition, the Tribunal granted Rs.25,000/- for pain and suffering and Rs.10,000/- for loss of consortium. These are reasonable. In addition, the Tribunal took an amount of Rs.10,00,000/- for loss of future income given the returns. Thus, an amount of Rs.82,40,000/- was awarded.25. Before us reliance was placed by the learned counsel for the Appellants on the decision of the Supreme Court in Surenderkumar Arora v Dr. Manoj Bisla, 2012 ACJ 1305. In that decision, an important distinction is drawn between a claim made under Section 166 of the Motor Vehicles Act and one made under Section 163-A. The present case also arises from an application under Section 166 of the Act. We find that the decision in Surenderkumar does not assist the Appellant in any way. As we have noted, the negligence of the 5th Respondent to his Appeal must be held to have been established inter alia from his own evidence. The improbability of what he has suggested is plain to see. What actually transpired was a set of facts especially within his personal knowledge, and if it was his case that he was not negligent or rash, and since he tendered himself as a witness, it was for him to make a full disclosure of those facts. It is in this context that his failure to file a written statement must be seen. For its part, the Insurance Company only said (and quite correctly) that it had no knowledge of this aspect of the matter. We may also note that before the Tribunal, the inquest panchnama, the spot panchnama and the FIR were all filed in evidence and were considered by the Tribunal, which held that these show that Vaidya was booked for rash and negligent driving in a criminal prosecution. The Tribunal therefore correctly held that the claimants had discharged their evidentiary burden.26. In these circumstances, we see no reason to interfere with the impugned Judgment and Award. There is no merit in the Appeal. | 0[ds]We have considered both submissions with care. For the reasons that follow, we are unable to acceptx returns for the years8 and for the Assessment Year(i.e. Financial Year from 1st April 2007 to 31st March 2008) were introduced in evidence. In the impugned judgment, the Tribunal has taken the deceaseds income as Rs.A question is raised before us by the learned counsel for the Appellants as to how the Tribunal could possibly have arrived at this figure. The answer lies in the last return for the Assessment YearThis shows a total salary of the deceased as Rs.6,30,000/with tax deductions approximately ofleaving an income of Rs.This is the figure that has been accepted by the MACT. We are not impressed by the submission that the income for the previous years was lower or that it is an average that should be taken.24. From the incomeh amount has been deducted since the deceased was survived by his widow and two minors. This leads to a figure of Rs.At the time of his death Mr. Satwindersingh was 39 years old and, therefore, following the decision of the Supreme Court in Sarla Verma v Delhi Transport Corporation, (2009) 6 SCC 121 : 2009 ACJ 1298 (SC), a multiplier of 16 has been taken. In addition, the Tribunal granted Rs.25,000/for pain and suffering and Rs.10,000/for loss of consortium. These are reasonable. In addition, the Tribunal took an amount of Rs.10,00,000/for loss of future income given the returns. Thus, an amount of Rs.82,40,000/was awarded.25. Before us reliance was placed by the learned counsel for the Appellants on the decision of the Supreme Court in Surenderkumar Arora v Dr. Manoj Bisla, 2012 ACJ 1305. In that decision, an important distinction is drawn between a claim made under Section 166 of the Motor Vehicles Act and one made under SectionThe present case also arises from an application under Section 166 of the Act. We find that the decision in Surenderkumar does not assist the Appellant in any way. As we have noted, the negligence of the 5th Respondent to his Appeal must be held to have been established inter alia from his own evidence. The improbability of what he has suggested is plain to see. What actually transpired was a set of facts especially within his personal knowledge, and if it was his case that he was not negligent or rash, and since he tendered himself as a witness, it was for him to make a full disclosure of those facts. It is in this context that his failure to file a written statement must be seen. For its part, the Insurance Company only said (and quite correctly) that it had no knowledge of this aspect of the matter. We may also note that before the Tribunal, the inquest panchnama, the spot panchnama and the FIR were all filed in evidence and were considered by the Tribunal, which held that these show that Vaidya was booked for rash and negligent driving in a criminal prosecution. The Tribunal therefore correctly held that the claimants had discharged their evidentiary burden.26. In these circumstances, we see no reason to interfere with the impugned Judgment and Award. There is no merit in the Appeal. | 0 | 3,248 | 589 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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person, viz., Vaidya, is available as an eye-witness to actually narrate with any accuracy what exactly transpired. Once we find that even that evidence is insufficient or not sufficiently cogent to warrant credibility, then there is no reason to find fault with the impugned judgment at least on this score. We must also bear in mind that Vaidya chose, for whatever reason, not to file a written statement. This is indeed strange for he was a party respondent and in response could have clearly set out in his pleadings his version of the events.21. Mr. Mahadiks emphasis, therefore, on Vaidyas testimony is, in our view, without foundation. Vaidyas evidence that he was proceeding at 10-15 kmph is uncompelling. It is argued that correctly read the evidence shows that Vaidya had almost negotiated the turn. This is the purest conjecture; Vaidya himself does not say so and he also does not say, as we have noted, in which direction he was turning, a matter only he could depose to, and one that makes all the difference. The submission that Vaidyas car was damaged from the rear also does not in and of itself establish negligence on Satwindersinghs part. As a matter of law, contributory negligence is a matter that must be both pleaded and proved. Vaidya, as we have noted, filed no written statement, though certainly he could have taken such a plea. More importantly, in its own written statement, the Insurance Company also did not take the plea of contributory negligence. It could have done so, for the basis of Mr. Mahadiks submission is simply that the rear of Vaidyas car was damaged and that this, ipso facto, establishes contributory negligence. The fact of the rear of the car having been damaged was known from the time of the accident onward, and certainly could not have been unknown to the Insurance Company before it filed its written statement. Yet no such plea is to be found in its written statement.22. In any case, it is well settled that the Tribunal is not bound by strict rules of evidence or pleading and that in matters such as this, and indeed generally, a Court must be guided by an assessment of the preponderance of probabilities. Mr. Vaidyas narrative seems to us entirely improbable. That he attempted to deflect blame is evident from his testimony when he says that he was told by others that the deceased was always riding his bike at a high speed. This evidence was quite correctly not considered by the Court at all. It violates the rule against hearsay evidence. It is no proof of rashness or negligence (or habitual rashness or negligence) on the part of Satwindersingh.23. This leaves us with the question of an assessment of the deceaseds income. The income-tax returns for the years 2006-2007, 2007-2008 and for the Assessment Year 2008-2009 (i.e. Financial Year from 1st April 2007 to 31st March 2008) were introduced in evidence. In the impugned judgment, the Tribunal has taken the deceaseds income as Rs.6,00,000/-. A question is raised before us by the learned counsel for the Appellants as to how the Tribunal could possibly have arrived at this figure. The answer lies in the last return for the Assessment Year 2008-2009. This shows a total salary of the deceased as Rs.6,30,000/- with tax deductions approximately of Rs.30,000/-, leaving an income of Rs.6,00,000/-. This is the figure that has been accepted by the MACT. We are not impressed by the submission that the income for the previous years was lower or that it is an average that should be taken.24. From the income Rs.6,00,000/-, one-fourth amount has been deducted since the deceased was survived by his widow and two minors. This leads to a figure of Rs.4,50,000/-. At the time of his death Mr. Satwindersingh was 39 years old and, therefore, following the decision of the Supreme Court in Sarla Verma v Delhi Transport Corporation, (2009) 6 SCC 121 : 2009 ACJ 1298 (SC), a multiplier of 16 has been taken. In addition, the Tribunal granted Rs.25,000/- for pain and suffering and Rs.10,000/- for loss of consortium. These are reasonable. In addition, the Tribunal took an amount of Rs.10,00,000/- for loss of future income given the returns. Thus, an amount of Rs.82,40,000/- was awarded.25. Before us reliance was placed by the learned counsel for the Appellants on the decision of the Supreme Court in Surenderkumar Arora v Dr. Manoj Bisla, 2012 ACJ 1305. In that decision, an important distinction is drawn between a claim made under Section 166 of the Motor Vehicles Act and one made under Section 163-A. The present case also arises from an application under Section 166 of the Act. We find that the decision in Surenderkumar does not assist the Appellant in any way. As we have noted, the negligence of the 5th Respondent to his Appeal must be held to have been established inter alia from his own evidence. The improbability of what he has suggested is plain to see. What actually transpired was a set of facts especially within his personal knowledge, and if it was his case that he was not negligent or rash, and since he tendered himself as a witness, it was for him to make a full disclosure of those facts. It is in this context that his failure to file a written statement must be seen. For its part, the Insurance Company only said (and quite correctly) that it had no knowledge of this aspect of the matter. We may also note that before the Tribunal, the inquest panchnama, the spot panchnama and the FIR were all filed in evidence and were considered by the Tribunal, which held that these show that Vaidya was booked for rash and negligent driving in a criminal prosecution. The Tribunal therefore correctly held that the claimants had discharged their evidentiary burden.26. In these circumstances, we see no reason to interfere with the impugned Judgment and Award. There is no merit in the Appeal.
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We have considered both submissions with care. For the reasons that follow, we are unable to acceptx returns for the years8 and for the Assessment Year(i.e. Financial Year from 1st April 2007 to 31st March 2008) were introduced in evidence. In the impugned judgment, the Tribunal has taken the deceaseds income as Rs.A question is raised before us by the learned counsel for the Appellants as to how the Tribunal could possibly have arrived at this figure. The answer lies in the last return for the Assessment YearThis shows a total salary of the deceased as Rs.6,30,000/with tax deductions approximately ofleaving an income of Rs.This is the figure that has been accepted by the MACT. We are not impressed by the submission that the income for the previous years was lower or that it is an average that should be taken.24. From the incomeh amount has been deducted since the deceased was survived by his widow and two minors. This leads to a figure of Rs.At the time of his death Mr. Satwindersingh was 39 years old and, therefore, following the decision of the Supreme Court in Sarla Verma v Delhi Transport Corporation, (2009) 6 SCC 121 : 2009 ACJ 1298 (SC), a multiplier of 16 has been taken. In addition, the Tribunal granted Rs.25,000/for pain and suffering and Rs.10,000/for loss of consortium. These are reasonable. In addition, the Tribunal took an amount of Rs.10,00,000/for loss of future income given the returns. Thus, an amount of Rs.82,40,000/was awarded.25. Before us reliance was placed by the learned counsel for the Appellants on the decision of the Supreme Court in Surenderkumar Arora v Dr. Manoj Bisla, 2012 ACJ 1305. In that decision, an important distinction is drawn between a claim made under Section 166 of the Motor Vehicles Act and one made under SectionThe present case also arises from an application under Section 166 of the Act. We find that the decision in Surenderkumar does not assist the Appellant in any way. As we have noted, the negligence of the 5th Respondent to his Appeal must be held to have been established inter alia from his own evidence. The improbability of what he has suggested is plain to see. What actually transpired was a set of facts especially within his personal knowledge, and if it was his case that he was not negligent or rash, and since he tendered himself as a witness, it was for him to make a full disclosure of those facts. It is in this context that his failure to file a written statement must be seen. For its part, the Insurance Company only said (and quite correctly) that it had no knowledge of this aspect of the matter. We may also note that before the Tribunal, the inquest panchnama, the spot panchnama and the FIR were all filed in evidence and were considered by the Tribunal, which held that these show that Vaidya was booked for rash and negligent driving in a criminal prosecution. The Tribunal therefore correctly held that the claimants had discharged their evidentiary burden.26. In these circumstances, we see no reason to interfere with the impugned Judgment and Award. There is no merit in the Appeal.
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KERALA STATE ELECTRICITY BOARD REP. BY ITS SECRETARY & ANR Vs. PRINCIPAL SIR SYED INSTITUTE FOR TECHNICAL STUDIES & ANR | before the Division Bench. Thus, no material is there before us from which the Commission could demonstrate that the SFEIs provide luxury or semi-luxury amenities to their students. In the light of these facts can it be held that purpose of both Government run and aided institutions and SFEIs was same and hence no differentiation could be made on tariff rate on that basis? We are not testing here the differentiation on the anvil of Article 14 of the Constitution of India as the writ petitioners before the Division Bench do not appear to have had pressed their challenge to the notification on that ground. 16. The question we shall address now is whether preference shown by the Commission to the State run and aided educational institutions in fixing tariff was justified having regard to the purpose for which supply was required. The expression purpose means, as per the Concise Oxford English Dictionary, Tenth Edition, published by Oxford University Press:- 1. the reason for which something is done or for which something exists. 2. resolve or determination. In the given context, the noun purpose would fit into the first meaning given in the aforesaid dictionary, which we have quoted above. Contention of the writ petitioners is that the purpose of both of these two sets of educational institutions remain the same being imparting education and no discrimination in tariff rate could be made between them having regard to Section 62 (3) of the 2003 Act. 17. The writ petitioners have advanced two-fold submission on this aspect. First, they have contended that capacity to pay cannot be the determinant factor in electricity tariff fixing exercise, relying on the case of Rohtas industries Ltd. vs. Chairman, Bihar State Electricity Board & Ors. (1984 (Supp) SCC 161) . This judgment was delivered construing Section 49(3) of the Electricity Supply Act, 1948. In the case of M.P. Electricity Board & Ors. vs. Shiv Narayan & Ors. (2005) 7 SCC 283 , this Court found professional activities of an advocate did not constitute commercial activity so as to attract commercial rate of electricity. But ratio of these two decisions do not aid the writ petitioners. So far as meaning of the expression commercial is concerned, we have dealt with that issue earlier in this judgment. The SFEIs have been specifically included under the heading commercial and it is not a case where their character is being assessed inferentially, treating their activities as commercial in a general sense of the term. 18. The Writ Petitioners have argued that they cannot indulge in fixing excessive fees in respect of their schools and in this regard two statutory instruments have been brought to our notice which postulates restriction on collection of excessive fees. These are Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non- Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 and Kerala Education Rules, the latter having been referred to in the judgment under appeal. On the basis of these statutory provisions, the Writ Petitioners seek to contend that they cannot indulge in profiteering and have to charge fees to the students as regulated by the authorities. But in our opinion profiteering is not the sole criteria on the basis of which the Tariff Authorities segregated the two sets of organisations. In the event the tariff fixing body, in this case, being the Commission, can distinguish the purpose of the respective categories, they would be entitled to impose different rates of tariffs for different categories of educational institutions. 19. We have already referred to the dictionary meaning of the expression purpose. The writ petitioners contention is that the reason of their formation or existence is imparting education and this is so for the Government run and aided institutions also. On this basis, they argue that different tariffs could not be charged to these two sets of institutions. We are, however, unable to accept this argument. Though the Commission has not demonstrated through factual evidence the facilities provided by these two sets of institutions are different, it is of common knowledge, of which we take judicial notice, that the student profile of state run and state aided institutions is different from those of SFEIs. Students from comparatively modest background go to the State run or State funded institutions. While we construe the meaning of the expression purpose under sub-section (3) of Section 62 of the 2003 Act, we are of the opinion that for the purpose of settling the tariff question, who is serving the purpose and for whom such purpose is being served have to be factored in. We also have to take into account that the nature of service rendered by them cannot be the sole determinant for the tariff-fixing exercise. The State run and State aided institutions are funded by the tax payers, which is also a material factor in making distinction between the aforesaid categories of the institutions. The expression purpose has to be understood in the context of the character or feature of the entity which is undertaking the activity of imparting education. While funding educational institutions, the State undertakes to discharge one of its essential welfare measures. On behalf of the Commission certain cases decided by the Appellate Tribunal were referred to but since we are deciding primarily the scope of Section 62(3) of the 2003 Act, we do not consider it necessary to refer to those cases. 20. Viewing the case of the appellant in that perspective, in our opinion, no error was committed by them in fixing higher tariff for the Self-Financing Educational Institutions categorising them as commercial entities. No undue preference has been given to the State run and State aided institutions in the tariff notification. The fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once we find that purpose of the SFEIs could be differentiated from the Government run and Government aided educational institutions. | 1[ds]We find from the judgment under appeal that challenge to the tariff notification on the ground of being violative of the provisions of Article 14 of the Constitution of India was not pressed by the respondents-writ petitioners. The writ petitioners also did not seriously press their challenge to the subject notification on the question of lack of suo motu power of the Commission to fix tariff before the Division Bench. The main point which was urged and argued before the Division Bench was as to whether under the provisions of Section 62(3) of the 2003 Act, the differentiation of SFEIs from the other set of institutions for the purpose of fixing of tariff was legally justifiable or not. The Division Bench decided the issue in favour of the SFEIs. On behalf of the appellant, the argument that the respondents (writ petitioners) had alternative remedy in the form of appeal under Section 111 of the 2003 Act has been reiterated and it has been submitted that for this reason alone, the writ petitions ought to have been dismissed. This contention was rejected by the First Court and both the First Court and the Division Bench have addressed the points raised in the writ petition on merit. The objection based on subsistence of alternative remedy having been rejected by the Court of first instance as also the appellate forum, we do not think upon granting leave under Article 136 of the Constitution of India, it would be proper on our part to entertain this question on maintainability of the writ petitions again and relegate the dispute to the Statutory Authority solely on this ground. There is no deep factual dispute involved in these proceedings. These are also not cases where exercise of writ jurisdiction can be held to be fundamentally flawed, like in a case involving purely private dispute. In this perspective, entertaining such objection at this stage would result in wastage of judicial time and also lead to adding unnecessary layers to the decision making process on a particular lisThere is a negative mandate of the legislature upon the Commission in this sub-section. While fixing tariff, the Commission cannot show undue preference to any consumer of electricity. The Commission, however, is vested with the power to prescribe differential rates according to the consumers load factor, power factor, voltage, total consumption of electricity during any specified period of time at which supply is required. So far as fixing different rates for these two categories of the educational institutions, these factors did not come into play. The other permissible differentiating factors are geographical position of any area, the nature of supply and the purpose for which the supply is required. As regards this set of differentiating factors, the tariff advantage for government run and aided educational institutions do not appear to be based on geographical position or nature of supply. The Commission however has justified the classification of the aforesaid two sets of tariffs on the basis of purpose for which supply is required by the consumers9. As regards the argument of the writ petitioners on the point of violation of the principles of natural justice, the Division Bench found uploading of tariff proposal on the website to be broadly in compliance with the statutory requirement. We find from the judgment of the First Court that the Commission had issued notice inviting objections/suggestions from the Public Consumers and other stake holders. In the notice only, it was mentioned that the details were available in the website of the Commission and the same was available on request. Such details included the proposed higher tariff rate for the SFEIs. We do not find much discussion on the second plank of the writ petitioners argument on breach of the principles of natural justice in the judgment under appeal. Neither of the two cases cited on behalf of the writ petitioners on the point of the Commission being a quasi-judicial body deal with the aspect of necessity to disclose reason in a tariff fixing order by a statutory body like the Commission. In the case of State of Gujarat (supra), the question this Court dealt with was on qualification of a Chairman of the Regulatory Commission. While dealing with that question, it was held that the State Commissions have the trappings of a Court. In the case of PTC India Ltd. (supra), the dispute was on the point as to whether a Regulation framed under Section 178 of the 2003 Act was appealable under Section 111 of the said statute. While exploring that controversy, a Constitution Bench of this Court examined the scope of jurisdiction of the Commission and found tariff fixation under Section 62 of the 2003 Act to be quasi-judicial function. One of the reasons for such finding was that the tariff order was appealable under the statute11. Once the Division Bench observed that publication in the website was sufficient, the writ petitioners may not have had forfeited their right to challenge the tariff notification in the Writ Court or the appellate forum. But having failed to generate any lis on the tariff proposal by not raising any kind of objection, it would not be open to them to demand disclosure of reasons along with publication of the tariff rates. The Commissions role as a quasi-judicial body or it having trappings of a Court would emerge only if it was called upon to adjudicate a dispute. As we have already discussed, no dispute had been generated by the writ petitioners on the basis of Commissions proposal which would have required it to undertake some form of adjudicatory exercise. In such a situation, the exercise of fixing tariff has to be undertaken as a quasi-legislative act only, which ordinarily a tariff-fixing exercise is. Issue of the subject tariff notification unaccompanied by reason thus cannot be faulted for having breached the principles of natural justice. The forum of appeal was open to them. But mere existence of an appellate forum in the statute would not require a tariff-fixing body to disclose the reason for stipulating tariff-rate in each individual case. If any appeal is preferred in relation to any specific case, the Commission would then have to justify fixing a tariff rate in such a case. The duty to disclose reason would crystallise then only, in a situation where a particular tariff fixing proposal goes without any objection after its draft publication. Not having gone to the appellate forum, the writ petitioners approached the Writ Court. Before the Writ Court, such tariff fixation was open to challenge in the same way tariffs fixed in exercise of quasi-legislative or administrative power is subjected to judicial review. Thus, in our opinion, in absence of any statutory provision to the contrary, once tariff proposal is published and goes unobjected to before the State Commission, the question of disclosure of reason for such fixation would not arise at the stage of finalisation of tariff. If such tariff orders are later challenged before the appellate forum or the Writ Court, the Commission would have to defend its decision the same way an administrative or quasi-legislative decision on fixing of tariff is defended. Since we have taken this view, we do not consider it necessary to deal with the authorities which lay down the dictum of law that a quasi-judicial authority is required to disclose reasons in support of its decision14. What these authorities lay down in substance is that the Self Financing Educational Institutions are not permitted to indulge in profiteering but that does not imply they cannot generate reasonable revenue surplus to enable them to continue with their activities. In addition, the writ petitioners have submitted that many of them are charitable organisations and not for profit entities and they cannot be clubbed together with other commercial organisations. We find from the subject-notification that SFEIs have been categorised with entities like cinema studios, hotels and restaurants, construction works etc., and heading of LT-VII tariff items is commercial. While an educational institution in our ordinary perception may not be performing functions similar to the other entities who undertake business ventures, a tariff fixing body is not required to proceed on the basis of such common perception. The duty of such body is to determine which rate an organisation shall pay, and entities working in diverse fields can be clubbed together under a common umbrella to be subjected to a common rate. In that context, for exercise of this nature, the heading commercial cannot be constructed to restrict the entities that can come under that head on the basis of the nature of their activities, i.e. whether such activities have commercial attributes or not. Selection of heading is an exercise of convenience in fixing tariff rates and not necessarily the controlling factor in choosing the entities included under that headingBut it has been recorded in the judgment under appeal that such fact was not substantiated before the Division Bench. Thus, no material is there before us from which the Commission could demonstrate that the SFEIs provide luxury or semi-luxury amenities to their students. In the light of these facts can it be held that purpose of both Government run and aided institutions and SFEIs was same and hence no differentiation could be made on tariff rate on that basis? We are not testing here the differentiation on the anvil of Article 14 of the Constitution of India as the writ petitioners before the Division Bench do not appear to have had pressed their challenge to the notification on that groundBut in our opinion profiteering is not the sole criteria on the basis of which the Tariff Authorities segregated the two sets of organisations. In the event the tariff fixing body, in this case, being the Commission, can distinguish the purpose of the respective categories, they would be entitled to impose different rates of tariffs for different categories of educational institutionsWe are, however, unable to accept this argument. Though the Commission has not demonstrated through factual evidence the facilities provided by these two sets of institutions are different, it is of common knowledge, of which we take judicial notice, that the student profile of state run and state aided institutions is different from those of SFEIs. Students from comparatively modest background go to the State run or State funded institutions. While we construe the meaning of the expression purpose under sub-section (3) of Section 62 of the 2003 Act, we are of the opinion that for the purpose of settling the tariff question, who is serving the purpose and for whom such purpose is being served have to be factored in. We also have to take into account that the nature of service rendered by them cannot be the sole determinant for the tariff-fixing exercise. The State run and State aided institutions are funded by the tax payers, which is also a material factor in making distinction between the aforesaid categories of the institutions. The expression purpose has to be understood in the context of the character or feature of the entity which is undertaking the activity of imparting education. While funding educational institutions, the State undertakes to discharge one of its essential welfare measures. On behalf of the Commission certain cases decided by the Appellate Tribunal were referred to but since we are deciding primarily the scope of Section 62(3) of the 2003 Act, we do not consider it necessary to refer to those cases20. Viewing the case of the appellant in that perspective, in our opinion, no error was committed by them in fixing higher tariff for the Self-Financing Educational Institutions categorising them as commercial entities. No undue preference has been given to the State run and State aided institutions in the tariff notification. The fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once we find that purpose of the SFEIs could be differentiated from the Government run and Government aided educational institutions. | 1 | 5,476 | 2,143 | ### 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:
before the Division Bench. Thus, no material is there before us from which the Commission could demonstrate that the SFEIs provide luxury or semi-luxury amenities to their students. In the light of these facts can it be held that purpose of both Government run and aided institutions and SFEIs was same and hence no differentiation could be made on tariff rate on that basis? We are not testing here the differentiation on the anvil of Article 14 of the Constitution of India as the writ petitioners before the Division Bench do not appear to have had pressed their challenge to the notification on that ground. 16. The question we shall address now is whether preference shown by the Commission to the State run and aided educational institutions in fixing tariff was justified having regard to the purpose for which supply was required. The expression purpose means, as per the Concise Oxford English Dictionary, Tenth Edition, published by Oxford University Press:- 1. the reason for which something is done or for which something exists. 2. resolve or determination. In the given context, the noun purpose would fit into the first meaning given in the aforesaid dictionary, which we have quoted above. Contention of the writ petitioners is that the purpose of both of these two sets of educational institutions remain the same being imparting education and no discrimination in tariff rate could be made between them having regard to Section 62 (3) of the 2003 Act. 17. The writ petitioners have advanced two-fold submission on this aspect. First, they have contended that capacity to pay cannot be the determinant factor in electricity tariff fixing exercise, relying on the case of Rohtas industries Ltd. vs. Chairman, Bihar State Electricity Board & Ors. (1984 (Supp) SCC 161) . This judgment was delivered construing Section 49(3) of the Electricity Supply Act, 1948. In the case of M.P. Electricity Board & Ors. vs. Shiv Narayan & Ors. (2005) 7 SCC 283 , this Court found professional activities of an advocate did not constitute commercial activity so as to attract commercial rate of electricity. But ratio of these two decisions do not aid the writ petitioners. So far as meaning of the expression commercial is concerned, we have dealt with that issue earlier in this judgment. The SFEIs have been specifically included under the heading commercial and it is not a case where their character is being assessed inferentially, treating their activities as commercial in a general sense of the term. 18. The Writ Petitioners have argued that they cannot indulge in fixing excessive fees in respect of their schools and in this regard two statutory instruments have been brought to our notice which postulates restriction on collection of excessive fees. These are Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non- Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 and Kerala Education Rules, the latter having been referred to in the judgment under appeal. On the basis of these statutory provisions, the Writ Petitioners seek to contend that they cannot indulge in profiteering and have to charge fees to the students as regulated by the authorities. But in our opinion profiteering is not the sole criteria on the basis of which the Tariff Authorities segregated the two sets of organisations. In the event the tariff fixing body, in this case, being the Commission, can distinguish the purpose of the respective categories, they would be entitled to impose different rates of tariffs for different categories of educational institutions. 19. We have already referred to the dictionary meaning of the expression purpose. The writ petitioners contention is that the reason of their formation or existence is imparting education and this is so for the Government run and aided institutions also. On this basis, they argue that different tariffs could not be charged to these two sets of institutions. We are, however, unable to accept this argument. Though the Commission has not demonstrated through factual evidence the facilities provided by these two sets of institutions are different, it is of common knowledge, of which we take judicial notice, that the student profile of state run and state aided institutions is different from those of SFEIs. Students from comparatively modest background go to the State run or State funded institutions. While we construe the meaning of the expression purpose under sub-section (3) of Section 62 of the 2003 Act, we are of the opinion that for the purpose of settling the tariff question, who is serving the purpose and for whom such purpose is being served have to be factored in. We also have to take into account that the nature of service rendered by them cannot be the sole determinant for the tariff-fixing exercise. The State run and State aided institutions are funded by the tax payers, which is also a material factor in making distinction between the aforesaid categories of the institutions. The expression purpose has to be understood in the context of the character or feature of the entity which is undertaking the activity of imparting education. While funding educational institutions, the State undertakes to discharge one of its essential welfare measures. On behalf of the Commission certain cases decided by the Appellate Tribunal were referred to but since we are deciding primarily the scope of Section 62(3) of the 2003 Act, we do not consider it necessary to refer to those cases. 20. Viewing the case of the appellant in that perspective, in our opinion, no error was committed by them in fixing higher tariff for the Self-Financing Educational Institutions categorising them as commercial entities. No undue preference has been given to the State run and State aided institutions in the tariff notification. The fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once we find that purpose of the SFEIs could be differentiated from the Government run and Government aided educational institutions.
### Response:
1
### Explanation:
appellate forum in the statute would not require a tariff-fixing body to disclose the reason for stipulating tariff-rate in each individual case. If any appeal is preferred in relation to any specific case, the Commission would then have to justify fixing a tariff rate in such a case. The duty to disclose reason would crystallise then only, in a situation where a particular tariff fixing proposal goes without any objection after its draft publication. Not having gone to the appellate forum, the writ petitioners approached the Writ Court. Before the Writ Court, such tariff fixation was open to challenge in the same way tariffs fixed in exercise of quasi-legislative or administrative power is subjected to judicial review. Thus, in our opinion, in absence of any statutory provision to the contrary, once tariff proposal is published and goes unobjected to before the State Commission, the question of disclosure of reason for such fixation would not arise at the stage of finalisation of tariff. If such tariff orders are later challenged before the appellate forum or the Writ Court, the Commission would have to defend its decision the same way an administrative or quasi-legislative decision on fixing of tariff is defended. Since we have taken this view, we do not consider it necessary to deal with the authorities which lay down the dictum of law that a quasi-judicial authority is required to disclose reasons in support of its decision14. What these authorities lay down in substance is that the Self Financing Educational Institutions are not permitted to indulge in profiteering but that does not imply they cannot generate reasonable revenue surplus to enable them to continue with their activities. In addition, the writ petitioners have submitted that many of them are charitable organisations and not for profit entities and they cannot be clubbed together with other commercial organisations. We find from the subject-notification that SFEIs have been categorised with entities like cinema studios, hotels and restaurants, construction works etc., and heading of LT-VII tariff items is commercial. While an educational institution in our ordinary perception may not be performing functions similar to the other entities who undertake business ventures, a tariff fixing body is not required to proceed on the basis of such common perception. The duty of such body is to determine which rate an organisation shall pay, and entities working in diverse fields can be clubbed together under a common umbrella to be subjected to a common rate. In that context, for exercise of this nature, the heading commercial cannot be constructed to restrict the entities that can come under that head on the basis of the nature of their activities, i.e. whether such activities have commercial attributes or not. Selection of heading is an exercise of convenience in fixing tariff rates and not necessarily the controlling factor in choosing the entities included under that headingBut it has been recorded in the judgment under appeal that such fact was not substantiated before the Division Bench. Thus, no material is there before us from which the Commission could demonstrate that the SFEIs provide luxury or semi-luxury amenities to their students. In the light of these facts can it be held that purpose of both Government run and aided institutions and SFEIs was same and hence no differentiation could be made on tariff rate on that basis? We are not testing here the differentiation on the anvil of Article 14 of the Constitution of India as the writ petitioners before the Division Bench do not appear to have had pressed their challenge to the notification on that groundBut in our opinion profiteering is not the sole criteria on the basis of which the Tariff Authorities segregated the two sets of organisations. In the event the tariff fixing body, in this case, being the Commission, can distinguish the purpose of the respective categories, they would be entitled to impose different rates of tariffs for different categories of educational institutionsWe are, however, unable to accept this argument. Though the Commission has not demonstrated through factual evidence the facilities provided by these two sets of institutions are different, it is of common knowledge, of which we take judicial notice, that the student profile of state run and state aided institutions is different from those of SFEIs. Students from comparatively modest background go to the State run or State funded institutions. While we construe the meaning of the expression purpose under sub-section (3) of Section 62 of the 2003 Act, we are of the opinion that for the purpose of settling the tariff question, who is serving the purpose and for whom such purpose is being served have to be factored in. We also have to take into account that the nature of service rendered by them cannot be the sole determinant for the tariff-fixing exercise. The State run and State aided institutions are funded by the tax payers, which is also a material factor in making distinction between the aforesaid categories of the institutions. The expression purpose has to be understood in the context of the character or feature of the entity which is undertaking the activity of imparting education. While funding educational institutions, the State undertakes to discharge one of its essential welfare measures. On behalf of the Commission certain cases decided by the Appellate Tribunal were referred to but since we are deciding primarily the scope of Section 62(3) of the 2003 Act, we do not consider it necessary to refer to those cases20. Viewing the case of the appellant in that perspective, in our opinion, no error was committed by them in fixing higher tariff for the Self-Financing Educational Institutions categorising them as commercial entities. No undue preference has been given to the State run and State aided institutions in the tariff notification. The fact that SFEIs have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once we find that purpose of the SFEIs could be differentiated from the Government run and Government aided educational institutions.
|
Commr.Of Commercial Tax Vs. M/S Bajaj Auto Ltd | No. 15264/CT, dt. 12.7.2000Bhubaneswar, the 19th November, 2001.Sir,In inviting a reference to the aforesaid letter, I am directed to say that surcharge under Orissa Sales Tax Act, 1947, shall be calculated on the payable amount of tax due on the taxable turnover (Section 5 & 5A) instead of on the reduced Sales Tax amount after setting off of entry tax. The position may kindly be clarified to the Field Officers and if such faulty procedure of charging surcharge is adopted by any of the Circle Officers, same should be discontinued forthwith and corrective measure as per the provisions of the statue may be taken up to make good the loss.2. It may further be noted that the illustration in rule -18 of Orissa Entry Tax Rule, 1999 or provision of any other Finance Department notification have limited implication for that purpose only and they have no overriding effect on the statutory provisions of the OST Act.Yours faithfullySd/-(K.C. Parija)DEPUTY SECRETARY TO GOVERNMENTOFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES: ORISSA: CUTTACKDated: 20.11.01Memo No. 24808/CTIII(I) 207/2000Copy forwarded to all ACCTs/All CTOs/All Addl. CTOs of Assessment Units for information and necessary action. The CTOs are requested to circulate the above clarification of Finance Deptt. to all the Addl. CTOs of their respective circles.Dd/-Addl. Commissioner of Commercial Taxes (Gen) Orissa, Cuttack" In the said letter, it was inter alia intimated that surcharge shall be calculated on the payable amount of tax due on the taxable turnover (section 5 and 5A) instead of on the reduced sales tax amount after setting off of Entry Tax. 17. On 30.03.2002, the Sales Tax Officer, Sambalpur-I Circle, Sambalpur passed an order under section 12(4) of the OST Act wherein surcharge has been levied under Section 5A of the said Act on the gross sales tax payable, without deducting the entry tax as required under Section 4 of the OET Act. As a result of this, excess surcharge to the tune of Rs. 21,25,117.37/- has been levied by the Sales Tax Officer. 18. It is well settled that an illustration given under the Rules does not exhaust the full content of the section which it illustrates but equally it can neither curtails nor expands its ambit. Further, surcharge is nothing but an additional tax and is payable on the sale of goods in the manner laid down for levy of surcharge. In view of the provisions contained in the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. 19. On a plain reading of the provisions of the OST Act as well as the OET Act and the Rules, it can be seen that Section 5A of the OST Act creates a charge and imposes liability on every dealer under the OST Act to pay surcharge @ 10% on the amount of tax payable by him under the OST Act. Section 4(1) of the OET Act, in the same way, prescribes for reduction of the tax amount payable by the dealer to the extent of entry tax already paid for the same article for which sales tax is payable. The Section, does not specifically contemplate anything, which would indicate that the provisions of the OET Act or the Rules have to be taken into consideration while assessing the sales tax or surcharge. In essence, the provisions made in the Rules lay down the modality of `set off. It is important to mention here that OST Act was enacted in the year 1947 whereas OET Act was enacted in 1999. The provision of set off has been made in the OET Act and the Rules framed thereunder and not in the OST Act. The heading of Section 4 of the OET Act gives a broad idea regarding the provision of set off by way of "reduction in tax liability". Sub-Sections 1 and 2 of Section 4 of the OET Act provide for reduction of liability under the OST Act.20. It is well settled that the objective of framing rules is to fill up the gaps in a statutory enactment so as to make the statutory provisions operative. Rules also clarify the provisions of an Act under which the same are framed. Section 4 of the OST Act is a charging Section attracting liability to pay Sales Tax "on sales and purchases effected". Section 5 of the OST Act provides for rate of Sales Tax. Section 5A of the OST Act levies surcharge on the dealer which is nothing but an additional tax. Therefore, on a plain reading of the provisions under the OST Act as well as under the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. A harmonious reading of Rule 18 of the Rules as well as Sections 4, 5, 5-A of the OST Act reveals no conflict or inconsistency. The Rules are to be construed to have been made for furtherance of the cause for which the Statute is enacted and not for the purpose of bringing inconsistencies.21. Section 5A of the OST Act is a self-contained provision and the surcharge, as already seen above, is leviable at the specified per centum of tax payable under the OST Act. Tax payable under the OST Act is independent of the provisions of OET Act. The assessment or quantification or computation of surcharge shall have to be made in accordance with the provisions of the OST Act.22. Thus, on a conjoint reading of Section 5 of the OST Act, Section 4 of the OET Act and Rule 18 of the Rules, we are of the considered opinion that the amount of surcharge under Section 5A of the OST Act is to be levied before deducting the amount of entry tax paid by a dealer.23. In view of the forgoing discussion, the | 1[ds]18. It is well settled that an illustration given under the Rules does not exhaust the full content of the section which it illustrates but equally it can neither curtails nor expands its ambit. Further, surcharge is nothing but an additional tax and is payable on the sale of goods in the manner laid down for levy of surcharge. In view of the provisions contained in the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act.Act.20. It is well settled that the objective of framing rules is to fill up the gaps in a statutory enactment so as to make the statutory provisions operative. Rules also clarify the provisions of an Act under which the same are framed. Section 4 of the OST Act is a charging Section attracting liability to pay Sales Tax "on sales and purchases effected". Section 5 of the OST Act provides for rate of Sales Tax. Section 5A of the OST Act levies surcharge on the dealer which is nothing but an additional tax. Therefore, on a plain reading of the provisions under the OST Act as well as under the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. A harmonious reading of Rule 18 of the Rules as well as Sections 4, 5, 5-A of the OST Act reveals no conflict or inconsistency. The Rules are to be construed to have been made for furtherance of the cause for which the Statute is enacted and not for the purpose of bringing inconsistencies.21. Section 5A of the OST Act is a self-contained provision and the surcharge, as already seen above, is leviable at the specified per centum of tax payable under the OST Act. Tax payable under the OST Act is independent of the provisions of OET Act. The assessment or quantification or computation of surcharge shall have to be made in accordance with the provisions of the OST Act.22. Thus, on a conjoint reading of Section 5 of the OST Act, Section 4 of the OET Act and Rule 18 of the Rules, we are of the considered opinion that the amount of surcharge under Section 5A of the OST Act is to be levied before deducting the amount of entry tax paid by a dealer. | 1 | 3,929 | 454 | ### 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. 15264/CT, dt. 12.7.2000Bhubaneswar, the 19th November, 2001.Sir,In inviting a reference to the aforesaid letter, I am directed to say that surcharge under Orissa Sales Tax Act, 1947, shall be calculated on the payable amount of tax due on the taxable turnover (Section 5 & 5A) instead of on the reduced Sales Tax amount after setting off of entry tax. The position may kindly be clarified to the Field Officers and if such faulty procedure of charging surcharge is adopted by any of the Circle Officers, same should be discontinued forthwith and corrective measure as per the provisions of the statue may be taken up to make good the loss.2. It may further be noted that the illustration in rule -18 of Orissa Entry Tax Rule, 1999 or provision of any other Finance Department notification have limited implication for that purpose only and they have no overriding effect on the statutory provisions of the OST Act.Yours faithfullySd/-(K.C. Parija)DEPUTY SECRETARY TO GOVERNMENTOFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES: ORISSA: CUTTACKDated: 20.11.01Memo No. 24808/CTIII(I) 207/2000Copy forwarded to all ACCTs/All CTOs/All Addl. CTOs of Assessment Units for information and necessary action. The CTOs are requested to circulate the above clarification of Finance Deptt. to all the Addl. CTOs of their respective circles.Dd/-Addl. Commissioner of Commercial Taxes (Gen) Orissa, Cuttack" In the said letter, it was inter alia intimated that surcharge shall be calculated on the payable amount of tax due on the taxable turnover (section 5 and 5A) instead of on the reduced sales tax amount after setting off of Entry Tax. 17. On 30.03.2002, the Sales Tax Officer, Sambalpur-I Circle, Sambalpur passed an order under section 12(4) of the OST Act wherein surcharge has been levied under Section 5A of the said Act on the gross sales tax payable, without deducting the entry tax as required under Section 4 of the OET Act. As a result of this, excess surcharge to the tune of Rs. 21,25,117.37/- has been levied by the Sales Tax Officer. 18. It is well settled that an illustration given under the Rules does not exhaust the full content of the section which it illustrates but equally it can neither curtails nor expands its ambit. Further, surcharge is nothing but an additional tax and is payable on the sale of goods in the manner laid down for levy of surcharge. In view of the provisions contained in the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. 19. On a plain reading of the provisions of the OST Act as well as the OET Act and the Rules, it can be seen that Section 5A of the OST Act creates a charge and imposes liability on every dealer under the OST Act to pay surcharge @ 10% on the amount of tax payable by him under the OST Act. Section 4(1) of the OET Act, in the same way, prescribes for reduction of the tax amount payable by the dealer to the extent of entry tax already paid for the same article for which sales tax is payable. The Section, does not specifically contemplate anything, which would indicate that the provisions of the OET Act or the Rules have to be taken into consideration while assessing the sales tax or surcharge. In essence, the provisions made in the Rules lay down the modality of `set off. It is important to mention here that OST Act was enacted in the year 1947 whereas OET Act was enacted in 1999. The provision of set off has been made in the OET Act and the Rules framed thereunder and not in the OST Act. The heading of Section 4 of the OET Act gives a broad idea regarding the provision of set off by way of "reduction in tax liability". Sub-Sections 1 and 2 of Section 4 of the OET Act provide for reduction of liability under the OST Act.20. It is well settled that the objective of framing rules is to fill up the gaps in a statutory enactment so as to make the statutory provisions operative. Rules also clarify the provisions of an Act under which the same are framed. Section 4 of the OST Act is a charging Section attracting liability to pay Sales Tax "on sales and purchases effected". Section 5 of the OST Act provides for rate of Sales Tax. Section 5A of the OST Act levies surcharge on the dealer which is nothing but an additional tax. Therefore, on a plain reading of the provisions under the OST Act as well as under the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. A harmonious reading of Rule 18 of the Rules as well as Sections 4, 5, 5-A of the OST Act reveals no conflict or inconsistency. The Rules are to be construed to have been made for furtherance of the cause for which the Statute is enacted and not for the purpose of bringing inconsistencies.21. Section 5A of the OST Act is a self-contained provision and the surcharge, as already seen above, is leviable at the specified per centum of tax payable under the OST Act. Tax payable under the OST Act is independent of the provisions of OET Act. The assessment or quantification or computation of surcharge shall have to be made in accordance with the provisions of the OST Act.22. Thus, on a conjoint reading of Section 5 of the OST Act, Section 4 of the OET Act and Rule 18 of the Rules, we are of the considered opinion that the amount of surcharge under Section 5A of the OST Act is to be levied before deducting the amount of entry tax paid by a dealer.23. In view of the forgoing discussion, the
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18. It is well settled that an illustration given under the Rules does not exhaust the full content of the section which it illustrates but equally it can neither curtails nor expands its ambit. Further, surcharge is nothing but an additional tax and is payable on the sale of goods in the manner laid down for levy of surcharge. In view of the provisions contained in the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act.Act.20. It is well settled that the objective of framing rules is to fill up the gaps in a statutory enactment so as to make the statutory provisions operative. Rules also clarify the provisions of an Act under which the same are framed. Section 4 of the OST Act is a charging Section attracting liability to pay Sales Tax "on sales and purchases effected". Section 5 of the OST Act provides for rate of Sales Tax. Section 5A of the OST Act levies surcharge on the dealer which is nothing but an additional tax. Therefore, on a plain reading of the provisions under the OST Act as well as under the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. A harmonious reading of Rule 18 of the Rules as well as Sections 4, 5, 5-A of the OST Act reveals no conflict or inconsistency. The Rules are to be construed to have been made for furtherance of the cause for which the Statute is enacted and not for the purpose of bringing inconsistencies.21. Section 5A of the OST Act is a self-contained provision and the surcharge, as already seen above, is leviable at the specified per centum of tax payable under the OST Act. Tax payable under the OST Act is independent of the provisions of OET Act. The assessment or quantification or computation of surcharge shall have to be made in accordance with the provisions of the OST Act.22. Thus, on a conjoint reading of Section 5 of the OST Act, Section 4 of the OET Act and Rule 18 of the Rules, we are of the considered opinion that the amount of surcharge under Section 5A of the OST Act is to be levied before deducting the amount of entry tax paid by a dealer.
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Baldev Sahai Bangia Vs. R.C. Bhasin | dies and in order to resolve this anomaly the legislature immediately stepped in to amend certain provision of the Act and defined the actual connotation of the term ‘members of the family’. By virtue of Act 18 of 1976 the definition of "Tenant" was inserted so as to include various categories of persons. Sub-clause, (iii) of Clause (1) of Section 2 of the Act actually mentions persons who could be as regarded tenant even if main tenant dies. This sub-clause may be extracted thus:(1) "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes:(i) a sub-tenant;(ii) any person continuing in possession after the termination of his tenancy; and(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person’s––(a) spouse,(b) son or daughter or, where there are both son and daughter, both of them,(c) parents,(d) daughter-in-law, being the widow of his predeceased son.as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include..............."18. It would appear that parents were expressly included in Sub-clause, (iii). It has also been provided that apart from the heirs specified in Clauses (a) to (d) (extracted above), even those persons who had been ordinarily living in the premises with the tenant would be treated as members of the family. The statement of objects and reasons for this amendment may be extracted thus:"There has been a persistent demand for amendments to the Delhi Rent Control Act, 1958 with a view to conferring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction by landlords and also for simplifying the procedure for eviction of tenants in case the landlord requires the premises bona fide for his personal occupation. Further, Government decided on the 9th September, 1975 that a person who owns his own house in his place of work should vacate the Government accommodation allotted to him before the 31st December 1975. Government considered that in the circumstances, the Act required to be amended urgently."19. If this was the intention of the legislature then Clause (d) of Section 14 (1) of the Act could not be interpreted in a manner so as to defeat the very object of the Act. It is well settled that a beneficial provision must be meaningfully construed so as to advance the object of the Act, and curing any lacuna or defect appearing in the same. There are abundant authorities to show that the term "family" must always be liberally and broadly construed so as to include near relations of the head of the family.20. In Hira Lal v. Banarsi Dass, 15 DLT (1979) 300 even the learned Judge who decided that case had observed at page 472 that the term "members of the family" on the facts and circumstances of the case should not be given a narrow construction.21. In Govind Dass v. Kuldip Singh, AIR 1971 Delhi 151, a Division Bench of Delhi High Court consisting of H. R. Khanna, C. J. (as he then was) and Prakash Narain, J. while recognising the necessity of giving a wide interpretation to the word "family" observed as follows (at p. 153):"I hold that in the section now under consideration the word "family" includes brothers and sisters of the deceased living with her at the time of her death. I think that that meaning is required by the ordinary acceptation of the word in this connection and that the legislature has used the word "family" to introduce a flexible and wide term."22. In Mrs. G. V. Shukla v. Mr. Prabhu Ram Sukhram Dass Ojha, (1963) 65 Pun LR 256 Mahajan, J. (as he then was) observed as follows:"Therefore, it must be held that the word ‘family’ is capable of wider interpretation, but that interpretation must have relation to the existing facts and circumstances proved on the record in each case."23. Even as far back as 1930, Wright, J. In Price v. Gould, (1930) 143 LT 333 (a King’s Bench decision) had clearly held that the word "family" included brothers and sisters and in this connection observed as follows:"I find as a fact that the brothers and sisters were residing with the deceased at the time of her death ...........It has been laid down that the primary meaning of the word "family" is children, but that primary meaning is clearly susceptible of wider interpretation, because the cases decide that the exact scope of the word must depend on the context and the other provisions of the will or deed in view of the surrounding circumstances."xx xx xx xx"Thus, in Snow v. Teed, (1870-23) LT 303; LR 9 Eg 622) it was held that the word "family" could be extended beyond not merely children but even beyond the statutory next of kin."24. In view, however, of the very clear and plain language of Clause (d) Section 14(1) of the Act itself, we do not want to burden this judgment by multiplying authorities.25. On a point of fact, we might mention that the Rent Controller had given a clear finding that the mother, younger brother (Davinder Kumar Bangia) and sister (Vijay Lakshmi) were undoubtedly residing in the disputed premises along with the main tenant and continued to reside there even on the date when the action for rejectment was brought.26. In these circumstances, we are satisfied that the view taken by the High Court is legally erroneous and cannot be supported. The landlord has miserably failed to prove the essential ingredients of Clause (d) of Section 14 (1) of the Act so as to entitle him to evict the members of the family of the main tenant. | 1[ds]8. It is manifest that unless the aforesaid conditions are satisfied the landlord cannot succeed in getting a decree for ejectment. In the instant case, while it is the admitted case of the parties that the tenant had shifted to Canada along with his wife and children, yet he had left his mother, brother and sister in the house, hence the second essential condition of Clause (d) continues to apply with fullcoming to its decision, the High Court seems to have completely overlooked the dominant purpose and the main object of the Act which affords several intrinsic and extrinsic evidence to show that the non-applicants were undoubtedly members of the family residing in the house and the migration of the main tenant to Canada would make no difference. The wordhas been defined in various legal dictionaries and several authorities of various Courts and no Court has ever held that mother or a brother or a sister who is living with the older member of the family would not constitute a family of the said member. Surely, it cannot be said by any stretch of imagination that when the tenant was living with his own mother in the house and after he migrated to Canada, he had severed all his connections with his mother so that she became an absolute stranger to the family. Such an interpretation is against our national heritage and, as we shall show, could never have been contemplated by the Act which has manifested its intention by virtue of a later amendment.A conspectus of the connotation of the termwhich emerges from a reference to the aforesaid dictionaries clearly shows that the wordhas to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head. More particularly, in our country, blood relations do not evaporate merely because a member of the family—the father, the brother or the son—leaves his household and goes out for some time. Furthermore, in our opinion, the legislature has advisedly used the term that any member of the family residing therein for a period of six months immediately before the date of the filing of the action would be treated as a tenant. The stress is not so much on the actual presence of the tenant as on the fact that the members of the family actually live and reside in the tenanted premises. In fact, it seems to us that Clause (d) of Section 14(1) of the Act is a special concession given to the landlord to obtain possession only where the tenanted premises have been completely vacated by the tenant if he ceased to exercise any control over the property either through himself or through his blood relations.In view, however, of the very clear and plain language of Clause (d) Section 14(1) of the Act itself, we do not want to burden this judgment by multiplying authorities.25. On a point of fact, we might mention that the Rent Controller had given a clear finding that the mother, younger brother (Davinder Kumar Bangia) and sister (Vijay Lakshmi) were undoubtedly residing in the disputed premises along with the main tenant and continued to reside there even on the date when the action for rejectment was brought.26. In these circumstances, we are satisfied that the view taken by the High Court is legally erroneous and cannot be supported. The landlord has miserably failed to prove the essential ingredients of Clause (d) of Section 14 (1) of the Act so as to entitle him to evict the members of the family of the main tenant. | 1 | 3,369 | 676 | ### 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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dies and in order to resolve this anomaly the legislature immediately stepped in to amend certain provision of the Act and defined the actual connotation of the term ‘members of the family’. By virtue of Act 18 of 1976 the definition of "Tenant" was inserted so as to include various categories of persons. Sub-clause, (iii) of Clause (1) of Section 2 of the Act actually mentions persons who could be as regarded tenant even if main tenant dies. This sub-clause may be extracted thus:(1) "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes:(i) a sub-tenant;(ii) any person continuing in possession after the termination of his tenancy; and(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person’s––(a) spouse,(b) son or daughter or, where there are both son and daughter, both of them,(c) parents,(d) daughter-in-law, being the widow of his predeceased son.as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include..............."18. It would appear that parents were expressly included in Sub-clause, (iii). It has also been provided that apart from the heirs specified in Clauses (a) to (d) (extracted above), even those persons who had been ordinarily living in the premises with the tenant would be treated as members of the family. The statement of objects and reasons for this amendment may be extracted thus:"There has been a persistent demand for amendments to the Delhi Rent Control Act, 1958 with a view to conferring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction by landlords and also for simplifying the procedure for eviction of tenants in case the landlord requires the premises bona fide for his personal occupation. Further, Government decided on the 9th September, 1975 that a person who owns his own house in his place of work should vacate the Government accommodation allotted to him before the 31st December 1975. Government considered that in the circumstances, the Act required to be amended urgently."19. If this was the intention of the legislature then Clause (d) of Section 14 (1) of the Act could not be interpreted in a manner so as to defeat the very object of the Act. It is well settled that a beneficial provision must be meaningfully construed so as to advance the object of the Act, and curing any lacuna or defect appearing in the same. There are abundant authorities to show that the term "family" must always be liberally and broadly construed so as to include near relations of the head of the family.20. In Hira Lal v. Banarsi Dass, 15 DLT (1979) 300 even the learned Judge who decided that case had observed at page 472 that the term "members of the family" on the facts and circumstances of the case should not be given a narrow construction.21. In Govind Dass v. Kuldip Singh, AIR 1971 Delhi 151, a Division Bench of Delhi High Court consisting of H. R. Khanna, C. J. (as he then was) and Prakash Narain, J. while recognising the necessity of giving a wide interpretation to the word "family" observed as follows (at p. 153):"I hold that in the section now under consideration the word "family" includes brothers and sisters of the deceased living with her at the time of her death. I think that that meaning is required by the ordinary acceptation of the word in this connection and that the legislature has used the word "family" to introduce a flexible and wide term."22. In Mrs. G. V. Shukla v. Mr. Prabhu Ram Sukhram Dass Ojha, (1963) 65 Pun LR 256 Mahajan, J. (as he then was) observed as follows:"Therefore, it must be held that the word ‘family’ is capable of wider interpretation, but that interpretation must have relation to the existing facts and circumstances proved on the record in each case."23. Even as far back as 1930, Wright, J. In Price v. Gould, (1930) 143 LT 333 (a King’s Bench decision) had clearly held that the word "family" included brothers and sisters and in this connection observed as follows:"I find as a fact that the brothers and sisters were residing with the deceased at the time of her death ...........It has been laid down that the primary meaning of the word "family" is children, but that primary meaning is clearly susceptible of wider interpretation, because the cases decide that the exact scope of the word must depend on the context and the other provisions of the will or deed in view of the surrounding circumstances."xx xx xx xx"Thus, in Snow v. Teed, (1870-23) LT 303; LR 9 Eg 622) it was held that the word "family" could be extended beyond not merely children but even beyond the statutory next of kin."24. In view, however, of the very clear and plain language of Clause (d) Section 14(1) of the Act itself, we do not want to burden this judgment by multiplying authorities.25. On a point of fact, we might mention that the Rent Controller had given a clear finding that the mother, younger brother (Davinder Kumar Bangia) and sister (Vijay Lakshmi) were undoubtedly residing in the disputed premises along with the main tenant and continued to reside there even on the date when the action for rejectment was brought.26. In these circumstances, we are satisfied that the view taken by the High Court is legally erroneous and cannot be supported. The landlord has miserably failed to prove the essential ingredients of Clause (d) of Section 14 (1) of the Act so as to entitle him to evict the members of the family of the main tenant.
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8. It is manifest that unless the aforesaid conditions are satisfied the landlord cannot succeed in getting a decree for ejectment. In the instant case, while it is the admitted case of the parties that the tenant had shifted to Canada along with his wife and children, yet he had left his mother, brother and sister in the house, hence the second essential condition of Clause (d) continues to apply with fullcoming to its decision, the High Court seems to have completely overlooked the dominant purpose and the main object of the Act which affords several intrinsic and extrinsic evidence to show that the non-applicants were undoubtedly members of the family residing in the house and the migration of the main tenant to Canada would make no difference. The wordhas been defined in various legal dictionaries and several authorities of various Courts and no Court has ever held that mother or a brother or a sister who is living with the older member of the family would not constitute a family of the said member. Surely, it cannot be said by any stretch of imagination that when the tenant was living with his own mother in the house and after he migrated to Canada, he had severed all his connections with his mother so that she became an absolute stranger to the family. Such an interpretation is against our national heritage and, as we shall show, could never have been contemplated by the Act which has manifested its intention by virtue of a later amendment.A conspectus of the connotation of the termwhich emerges from a reference to the aforesaid dictionaries clearly shows that the wordhas to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head. More particularly, in our country, blood relations do not evaporate merely because a member of the family—the father, the brother or the son—leaves his household and goes out for some time. Furthermore, in our opinion, the legislature has advisedly used the term that any member of the family residing therein for a period of six months immediately before the date of the filing of the action would be treated as a tenant. The stress is not so much on the actual presence of the tenant as on the fact that the members of the family actually live and reside in the tenanted premises. In fact, it seems to us that Clause (d) of Section 14(1) of the Act is a special concession given to the landlord to obtain possession only where the tenanted premises have been completely vacated by the tenant if he ceased to exercise any control over the property either through himself or through his blood relations.In view, however, of the very clear and plain language of Clause (d) Section 14(1) of the Act itself, we do not want to burden this judgment by multiplying authorities.25. On a point of fact, we might mention that the Rent Controller had given a clear finding that the mother, younger brother (Davinder Kumar Bangia) and sister (Vijay Lakshmi) were undoubtedly residing in the disputed premises along with the main tenant and continued to reside there even on the date when the action for rejectment was brought.26. In these circumstances, we are satisfied that the view taken by the High Court is legally erroneous and cannot be supported. The landlord has miserably failed to prove the essential ingredients of Clause (d) of Section 14 (1) of the Act so as to entitle him to evict the members of the family of the main tenant.
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Pratima Chowdhury Vs. Kalpana Mukherjee | showing that the transaction is fair and honest.13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburners Principles of Equity, 2nd Ed., p.229, thus:"When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donors will."” (emphasis is ours) The above conclusions recorded by this Court, came to be reiterated recently in Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558. 31. While deciding the proposition in hand, we must keep in mind the law declared by this Court on the subject of fiduciary relationship. We will also proceed by keeping in mind, what we have already concluded in the preceding paragraph, i.e., that relationship between Partha Mukherjee and Pratima Chowdhury was a relationship of faith, trust and confidence. Partha Mukherjee was in a domineering position. He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P. Roy. Pratima Chowdhury has lived for a very long time in the house of H.P. Roy. During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Pratima Chowdhury, for over a decade. In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury, is a very delicate and sensitive one. It is therefore, that Pratima Chowdhury extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him, when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury. In such fact situation, we are of the view, that the onus of substantiating the validity and genuineness of the transfer of flat no. 5D, by Pratima Chowdhury, through the letter dated 11.11.1992 and the document dated 13.11.1992, rested squarely on the shoulders of Kalpana Mukherjee. Because it was only the relationship between Partha Mukherjee and Pratima Chowdhury, which came to be extended to Kalpana Mukherjee. The document dated 13.11.1992 clearly expressed, that the above transfer was without consideration. Kalpana Mukherjee in her written reply before the Arbitrator asserted, that the above transfer was on a consideration of Rs.4,29,000/-. The Arbitrator in his order dated 5.2.1999 concluded, that Kalpana Mukherjee could not establish the passing of the above consideration to Pratima Chowdhury. The Cooperative Tribunal, as well as, the High Court, despite the factual assertion of Kalpana Mukherjee were of the view, that passing of consideration was not essential in determination of the genuineness of the transaction. We are of the view, that the Cooperative Tribunal, as well as, the High Court seriously erred in their approach, to the determination of the controversy. Even though the onus of proof rested on Kalpana Mukherjee, the matter was examined by requiring Pratima Chowdhury to establish all the alleged facts.We are of the view, that Kalpana Mukherjee miserably failed to discharge the burden of proof, which essentially rested on her. Pratima Chowdhury led evidence to show, that she was at Bombay on 11.11.1992 and 13.11.1992. In view of the above, the letter dated 11.11.1992 and the document dated 13.11.1992, shown to have been executed at Calcutta could not be readily accepted as genuine, for the said documents fell in the zone of suspicion, more so, because the manuscript of the letter dated 11.11.1992 was in the hand-writing of Partha Mukherjee. Leading to the inference, that Partha Mukherjee was the author of the above letter. It is therefore not incorrect to infer, that there seems to be a ring of truth, in the assertion made by Pratima Chowdhury, that Partha Mukherjee had obtained her signatures for executing the letter and document referred to above. We find no justification whatsoever for Pratima Chowdhury, to have transferred flat no. 5D to Kalpana Mukherjee, free of cost, even though she had purchased the same for a consideration of Rs. 4 lakhs in the year 1987. Specially so, when she had no direct intimate relationship with Kalpana Mukherjee. By the time the flat was transferred, more than a decade had passed by, during which period, the price of above flat, must have escalated manifold. Numerous other factual aspects have been examined by us above, which also clearly negate the assertions made by Kalpana Mukherjee. The same need not be repeated here, for reasons of brevity. Keeping in mind the above noted aspects, we are of the considered view, that invocation of the principle of justice and equity, and the doctrine of fairness, would in fact result in returning a finding in favour of Pratima Chowdhury, and not Kalpana Mukherjee. | 1[ds]26. First and foremost, it surprises us thatTribunal, as also, the High Court excluded from consideration, the factual position expressed in the rejoinder filed by the appellant (before the Arbitrator). In excluding the aforesaid factual position, theTribunal and the High Court did not rely on any provision of law nor was any reliance placed on any principle accepted and recognized in legal jurisprudence. It is not a matter of dispute, that after Kalpana Mukherjee and the Society were permitted to file written replies before the Arbitrator, the rejoinder filed thereto on behalf of Pratima Chowdhury, was permitted to be taken on record. It is not in contention, that in the written replies filed before the Arbitrator, Kalpana Mukherjee had adopted inter alia the stance, that consideration was paid to Pratima Chowdhury in lieu of the transfer of flat no. 5D to her name, even though the documents relied upon by the rival parties, expressed otherwise. A number of documents not mentioned in the Dispute Case filed by Pratima Chowdhury were also relied upon by Kalpana Mukherjee. Pleadings between the parties could be considered as complete, only after Pratima Chowdhury was permitted to file a rejoinder (in case she desired to do so). She actually filed a rejoinder which was taken on record by the Arbitrator. Both parties were permitted to lead evidence, not only on the factual position emerging from the complaint filed by Pratima Chowdhury and the written replies filed in response thereto (by Kalpana Mukherjee, and the Society), but also, the factual position highlighted by Pratima Chowdhury in her rejoinder affidavit. It is, therefore, not on the basis of the pleadings of the parties, but also on the basis of the evidence led in support of the aforesaid pleadings, that the Arbitrator had recorded his findings in his award dated 5.2.1999. We are therefore of the view, that the Arbitrator had acted in accordance with law, and therefore the exclusion from consideration, of the factual position asserted by Pratima Chowdhury in her rejoinder, by theTribunal and the High Court was wholly unjustified. The factual narration by Pratima Chowdhury, could not be excluded from consideration, while adjudicating upon the rival claims between Pratima Chowdhury and Kalpana Mukherjee. The instant aspect of the decision of the High Court, is therefore liable to be set aside, and is accordingly set aside. Just the instant determination, would result in a whole lot of facts which were not taken into consideration by the adjudicating authorities, becoming relevant. Despite that, we feel, that remanding the matter for a denovo consideration, would place a further burden on the parties. Having heard learned counsel at great length, we shall settle the issues finally, here and now.27. TheTribunal in its order dated 16.5.2002 had invoked the principle of estoppel, postulated in Section 115 of the Indian Evidence Act. The High Court affirmed the conclusions drawn by theTribunal. In addition to the above principle, the High Court invoked the principles of equity and fairness. Insofar as the latter principles are concerned, we shall delve upon them after examining the contentions of the rival parties, as equity and fairness would depend upon the entirety and totality of the facts. The above aspect can therefore only be determined after dealing with the intricacies of the factual circumstances involved. We shall, however, endeavour to deal with the principle of estoppel, so as to figure whether, the rule contained in Section 115 of the Indian Evidence Act could have been invoked, in the facts and circumstances of the presentthe question whether the restoration of the original position would be iniquitous or unfair does not arise at all. Even if consideration had passed from Kalpana Mukherjee to Pratima Chowdhury, on the basis of the representation made by Pratima Chowdhury, we could have accepted that Kalpana Mukherjee had altered her position. In the facts as they have been presented by the rival parties, especially in the background of the order passed by the Arbitrator, that no consideration had passed in lieu of the transfer of the flat, and especially in the background of the factual finding recorded by theTribunal and the High Court, that passing of consideration in the present controversy was inconsequential, we have no hesitation whatsoever in concluding, that the principle of estoppel relied upon by theTribunal and the High Court, could not have been invoked, to the detriment of Pratima Chowdhury, in the facts and circumstances of the present case. Insofar as the instant aspect of the matter is concerned, the legal position declared by this Court fully supports the conclusion drawn by usalready noticed hereinabove, none of the ingredients of estoppel can be culled out from the facts and circumstances of the present case. In view of above, we hereby set aside the determination by theTribunal, as also the High Court, in having relied on the principle of estoppel, and thereby, excluding the pleas/defences raised by Pratima Chowdhury to support her claim.28. The admitted factual position in the present controversy, in our considered view, is absolutely clear and unambiguous. Had the different adjudicating authorities taken into consideration the undisputed factual position, there ought not to have been much difficulty in resolving the difficulty. We shall highlight a few relevant admitted facts which crossed our mind while hearing the matter and whilst recording theThe reason for transferring flat no. 5D indicated in the letters dated 11.11.1992 and 13.11.1992 was on account of the close relationship between Pratima Chowdhury and Kalpana Mukherjee, which was expressed by observingnominee Kalpana, a close relative ofAs a matter of fact, there was no close relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratima Chowdhury, is indicated to have been living in Bombay and never visiting Calcutta. Kalpana Mukherjee is a resident of Calcutta, who was in employment at Calcutta, and had started to reside with her son Partha Mukherjee, after he moved to Calcutta alongwith his wife Sova Mukherjee. There was no direct relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratimaniece Sova Mukhrjee was married to Partha Mukherjee, son of Kalpana Mukherjee. The only relationship that can be assumed, is of aunty and niece, between Pratima Chodhury and Sova Mukherjee. If on account of love and affection, for her niece, Pratima Chowdhury desired to transfer flat no. 5D which she had purchased for a consideration of Rs.4 lakhs, she would have done so by transferring it to the name of her niece Sova Mukherjee. Affinity to Sova Mukherjee, and the love, affection and welfare of Sova Mukherjee, would not extend to a gesture of the nature under reference, i.e., by way of transfer of immovable property, of substantial value, without consideration, to the mother in law of Sova Mukherjee. Therefore, factually the expression of close relationship between Pratima Chwodhury and Kalpana Mukherjee depicted in letters dated 11.11.1992 and 13.11.1992 are on the face of it, false and incorrect. It is, therefore, improper for the adjudicating authorities to have accepted the factum of close relationship of the parties, in so far as, the transfer of flat no. 5D, is concerned.(ii) There is hardly any justification for having accepted another important factual position depicted in the letters dated 11.11.1992 and 13.11.1992. In this behalf, our reference is to the fact that flat no. 5D was sought to be transferred by Pratima Chowdhury to Kalpana Mukherjee, without consideration. First and foremost, the aforesaid factual position is not acceptable on account of the statement of Kalpana Mukherjee herself.In the written reply filed before the Arbitrator, Kalpana Mukherjee took the express stance, that Pratima Chwodhury had transferred flat no. 5D to her name, by accepting a consideration of Rs.She further asserted, that the aforesaid consideration had passed from Kalpana Mukherjee to Pratima Chowdhury through Partha Mukherjee. According to Kalpana Mukherjee, Partha Mukherjee transferred shares in his name valued atto the name of Pratima Chowdhury. Per se therefore, even Kalpana Mukherjee denied the factual position indicated in the above letters, whereby flat no. 5D was transferred from the name of Pratima Chowdhury, to that of Kalpana Mukherjee.(iii) The letters dated 11.11.1992 and 13.11.1992 expressly recorded, that the factual position narrated in the above letters was on account ofwith the rules regulating such transfer, and also, for avoiding futureIn view of the factual position noticed in the foregoing paragraphs, it is apparent, that false facts were being recorded for compliance with the rules and regulations, as also, for avoiding future complications. One would have appreciated the recording of consideration in lieu of the transfer of property from the name of Pratima Chowdhury to that of Kalpana Mukherjee, to avoid future complications, rather than withholding the same. It is clearly not understandable, what kind of complications were being avoided. Expressing the above factual position in the letters under reference, makes the whole transaction suspicious, mistrustful and possibly fraudulent too. In the absence of any relationship, the party benefiting from the letters dated 11.11.1992 and 13.11.1992, would have successfully avoided all complications merely by incorporating consideration, which was to pass from Kalpana Mukherjee to the transferee Pratima Chowdhury. If consideration was to pass, and had actually passed, it is difficult to understand why the parties would say, that the transaction did not involve passing of consideration. It is therefore clear, that all the ingredients of letter dated 11.11.1992 and 13.11.1992 are shrouded in suspicious circumstances. One is prompted to record herein, that it was not legitimately open to the parties to record in the letters under reference, that flat no. 5D was being gifted by Pratima Chowdhury to Kalpana Mukherjee, on account of lack of proximity between the parties. The transfer of the said property by one to the other, by way of gift, would obviously have been subject to judicial interference, as the same would at least prima facie, give the impression of dubiety. It was therefore, that Kalpana Mukherjee hastened to adopt a different factual position in her written reply before the Arbitrator.(iv) It is relevant to mention, that in the written statement filed by Kalpana Mukherjee (before the Arbitrator) the stand adopted by her was, that a consideration of Rs.4,29,000/had passed from her to Pratima Chowdhury, by way of transfer of shares (standing in the name of her son, Partha Mukherjee) to the name of Pratima Chowdhury. In this behalf it would be relevant to notice, that the documents of transfer executed between Pratima Chowdhury and Kalpana Mukherjee were dated 11.11.1992 and 13.11.1992. Based thereon, the Board of Directors of the Society, in its meeting held on 14.2.1993, resolved to accept the resignation of Pratima Chowdhury. It was further resolved, to accept the membership of Kalpana Mukherjee in her place. On the date of execution of the documents under reference, as also on the date of passing of the resolution by the Board of Directors of the Society, Partha Mukherjee did not have any shares in his name. The shares which Partha Mukherjee acquired, and which Kalpana Mukherjee claims to have been transferred in lieu of consideration (to the name of Pratima Chowdhury), were shown to have been acquired on or after 8.9.1993. The dates of acquisition of the said shares, as were recorded in the order passed by the Arbitrator, which position has not been disputed before us, are asNAME NO. OF SHARES ACQUIREDTata Chemicals Ltd. 50 nos. 8.9.93Tata Chemicals Ltd. 450 nos. 27.10.93Siemens 50 nos. 2.8.93Indian Aluminium 500 nos. 4.3.94I.T.C. Hotels 100 nos. acquired withMr.H.P.is therefore apparent, that Partha Mukherjee did not even have the shares referred to by the transferee Kalpana Mukherjee, in his name, when the transfer documents were executed on 11.11.1992 and 13.11.1992, or even on 14.2.1993 when the Board of Directors of the Society, passed the transfer resolution. The above shares are shown to have been transferred to the name of Pratima Chowdhury on 16.12.1994. Well before 16.12.1994, even according to the stance adopted by Kalpana Mukherjee, Pratima Chowdhury had executed all the transfer documents. It is therefore difficult to accept, that the parties had agreed to pass on consideration by transfer of shares, which were not even owned by Kalpana Mukherjee (through Partha Mukherjee) on the date of transfer of flat no. 5D from Pratima Chowdhury to Kalpana Mukherjee. In sum and substance therefore, on undisputed facts, the stance adopted by Kalpana Mukherjee in the written statement filed by her before the Arbitrator, is shown to be false. This aspect of the matter would bring out a legitimate query, namely, why should Kalpana Mukherjee have adopted a false stance, contrary to the expressed position in the letters dated 11.11.1992 and 13.11.1992. This further exposes, the suspicious nature of the transfer transaction.(v) On the subject of transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury, which, according to Kalpana Mukherjee constituted passing of consideration to Pratima Chowdhury (in lieu of the transfer of flat no. 5D). Pratima Chowdhury had adopted the stance, that the transfer of the above shares was on account of return of loans extended by Pratima Chowdhury to Partha Mukherjee. Insofar as the instant aspect of the matter is concerned Pratima Chowdhury had asserted, that after the transfer of Partha Mukherjee from Calcutta to Bombay in the year 1993, he gave up his employment with Colgate Palmolive (India) Limited, and started a business of aluminium products with one R.K. Sen, at Bombay. To help Partha Mukherjee with his above business venture, Pratima Chowdhury had (on the asking of Partha Mukherjee) paid a sum of Rs. 2 lakhs by way of cheque, to Bharat Aluminium Company Limited, for supply of raw materials to Parthabusiness venture. It was also pointed out, that Partha Mukherjee had also taken a loan for a sum of Rs. 1,50,000/for the same purpose from Bani Roy (sister of Pratima Chowdhury). It was also asserted, that Sova Mukherjee had similarly extended loans, by making payments through cheque to Partha Mukherjee. The Arbitrator had accepted the above assertion of Pratima Chowdhury. For the above determination, the Arbitrator had placed reliance, on documentary and oral evidence, produced by Pratima Chowdhury. The instant factual aspect of the matter was totally overlooked by theTribunal, as well as, by the High Court. Keeping in view the factual position depicting in paragraph (iv) above, we have no doubt in our mind, that there was substance in the determination of the Arbitrator, specially on account of the fact that transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury came to be effected, well after the transfer of flat no. 5D to the name of Kalpana Mukherjee. For the above reason as well, the findings of fact recorded by theTribunal as well as by the High Court, are bound to be considered as having been recorded without taking into consideration all the material and relevant facts.(vi) The fact that Pratima Chowdhury had addressed a letter to the Secretary of the Society, dated 28.2.1995, for withdrawal of her earlier letter dated 11.11.1992, is not in dispute. It is also not a matter of dispute, that at the time when Pratima Chowdhury addressed the above letter, neither the transfer of membership, nor the transfer of the flat, had assumed finality. The transfer of membership, as also the transfer of the flat, would assume finality only upon the approval of the same by the Deputy Registrar,Societies. The factual position emerging from the record of the case reveals, that the Society sought the approval of the Deputy Registrar,Societies for the transfer of membership, as also, flat no. 5D to the name of Kalpana Mukherjee on 13.3.1995. Undoubtedly, Pratima Chowdhury had sought revocation, before the transfers under reference had assumed finality. It is in the above background, that one needs to evaluate the reply of the Society dated 10.4.1995. Through the letter dated 10.4.1995, Pratima Chowdhury was informed, that the Society had no authority to look into the matter, after the resolution of the Board of Directors dated 2.4.1995. We find the above explanation, untenable. It was imperative for the Society to have examined the withdrawal letter dated 28.2.1995, the matter certainly had not been concluded. Well after the withdrawal letter, the Society by its notice dated 16.4.1995 had intimated its members, about the resolution dated 2.4.1995. The matter was, therefore, pending authoritative conclusion. Thus viewed, it was not justified for the Society to deny consideration of the withdrawal letter dated 28.2.1995. Acceptance or rejection on merits is another matter, butis not understandable. The instantclearly invalidates the resolution passed by the Society.(vii) On 22.3.1995, Pratima Chowdhury addressed a letter to the Deputy Registrar,Societies, imploring him to take appropriate action, by considering the withdrawal letter dated 28.2.1995. We are surprised, that the Deputy Registrar,Societies adopted the same stance, as was adopted by the Society. When the letter dated 22.3.1995 was addressed to the Deputy Registrar,Societies, it had not yet granted approval to the recommendations made by the Society. The receipt of the letter dated 28.2.1995, by the Society (as also the receipt of the letter dated 22.3.1995, by the Deputy Registrar,Societies) is not in dispute. It is imperative for us therefore to conclude, that the decision taken by the Deputy Registrar,Societies was, without reference to the withdrawal letter dated 28.2.1995 (which was enclosed with the letter dated 22.3.1995 addressed to the Deputy Registrar,Societies). The determination by the Deputy Registrar, Cooperative Societies, cannot therefore be treated as a valid and legitimate consideration. Acceptance or rejection on merits is another matter, butis just not understandable. The instantclearly invalidates the approval granted by the Deputy Registrar,Societies.(viii) The veracity of the execution of the documents dated 11.11.1992 and 13.11.1992 by Pratima Chowdhury, was also examined by the Arbitrator. In the above examination, the Arbitrator arrived at the conclusion, that Pratima Chowdhury was in Bombay and not in Calcutta when the above documents were executed. The above finding was recorded on the basis of three witnesses produced on behalf of the complainant (before the Arbitrator). While rejecting the conclusion drawn by the Arbitrator, theTribunal overlooked the statements of the witnesses produced by Pratima Chowdhury, merely because the notary was an Advocate. TheTribunal reasoned, that the statement of S.N. Chatterjee, an Advocate, had to be given more weightage, than the witnesses produced by Pratima Chowdhury. The above determination at the hands of theTribunal, besides being perverse, is also totally unacceptable in law. In the facts and circumstances of the present case, the statement of the notary should have been rejected and discarded, simply because the notary in his deposition had acknowledged, that he did not issue any notarial certificate in terms of Section 8 of the Notary Act. In the absence of issuance of any such certificate, notarization of the document dated 13.11.1992 was clearly subject to suspicion. The conclusion drawn by theTribunal as also the High Court, to the effect that the document dated 13.11.1992 was executed at Calcutta, is therefore, based on no evidence whatsoever. The fact that the document dated 13.11.1992 had not been executed in Calcutta, was also sought to be substantiated by showing, that the registration number of the Society was not depicted in the said letter, even though the said letter was shown to have been executed at the residence of the Secretary of the Society. It was reasoned, that the Secretary of the Society would have supplied the aforesaid number, if the above document had been executed at his residence. Having rejected the credibility of the statement of S.N. Chatterjee (the notary), and having not accepted the fact that the above document was executed at the residence of Anil Kumar Sil, the Secretary of the Society, we find no reason for not accepting the statements of the three witnesses produced by Pratima Chowdhury, to show that she (Pratima Chowdhury) was at Bombay on 11.11.1992, as well as, on 13.11.1992. Herein again,l and the High Court,erred on the face of the record, by not taking into consideration material facts, available on the file of the case.(ix) In the background of the factual position emerging from the deliberations recorded hereinabove, it is also necessary to notice, that the Arbitrator had placed heavy reliance on the fact, that Kalpana Mukherjee had deposited rent on 21.10.1993 (payable to Pratima Chowdhury), into the account of Pratima Chowdhury, by herself, filling up the bank deposit voucher. Accordingly, the Arbitrator inferred, that the property in question, even to the knowledge of Kalpana Mukherjee, had not actually been transferred to her name by Pratima Chowdhury (at least upto 21.10.1993). That was the reason, why Kalpana Mukherjee had continued to deposit rent for flat no. 5D, into the account of Pratima Chowdhury upto 21.10.1993. Coupled with the aforesaid factual aspect, the Arbitrator placed great reliance on the letter dated 28.10.1993 addressed by Partha Mukherjee to Colgate Palmolive (India) Limited, wherein, he described Pratima Chowdhury as theUndoubtedly, if the documents relied upon by Kalpana Mukherjee were genuine, Partha Mukherjee would not have acknowledged the ownership of Pratima Chowdhury over flat no. 5D (on 28.10.1993). These aspects of the matter were totally overlooked by theTribunal, as well as, by the High Court. These were vital facts, and needed to be examined, if the order passed by the Arbitrator was to be interfered with. In the absence of such consideration, the findings of fact recorded by theTribunal and by the High Court, are bound to be considered as perverse. Since the factual position attributed to the actions of 21.10.1993 and 28.10.1993, which emanated and emerged from Kalpana Mukherjee and Partha Mukherjee respectively, we are of the view that entire sequence of transfer, is rendered doubtful and suspicious.(x) The determination of the Arbitrator, on the subject of the transfer of the covered garage, to the name of Kalpana Mukherjee was also overlooked by theTribunal, as well as, by the High Court. From the facts already narrated above, it is clear that Pratima Chowdhury, had one covered garage space also. Whilst reference was made about the details of the flat sought to be transferred, in the transfer documents, no reference was made to the covered garage space. Based on the letter dated 11.11.1992, and the document dated 13.11.1992, flat no. 5D was transferred to the name of Kalpana Mukherjee. The instant transfer however did not include the covered garage space. Thereafter, based on an agreement executed between Kalpana Mukherjee (on the one hand), and the Society (on the other), the said covered garage space was transferred to the name of Kalpana Mukherjee, on 25.4.1995. The said transfer was not at the behest of, or with the concurrence of Pratima Chowdhury. Therefore, according to the view expressed by the Arbitrator, the covered garage space, must be deemed to have never been transferred to Kalpana Mukherje by its erstwhile owner. The Arbitrator also expressed the view, that the agreement dated 25.4.1995 could not have been executed without the participation of Pratima Chowdhury. The above factual position has not been disputed at the hands of Kalpana Mukherjee, before this Court. The above reasoning, in our considered view, was fully justified. The instant aspect of the matter was also totally overlooked by theTribunal, as well as, by the High Court. For the above reason also, the findings of the fact, recorded by theTribunal and by the High Court, are bound to be treated as perverse.For all the reasons recorded by us in foregoingwe are of the view that theTribunal as well as the High Court, seriously erred in recording their conclusions. We are satisfied in further recording, that the Arbitrator was wholly justified in allowing the Dispute Case filed by Pratima Chowdhury, by correctly appreciating the factual and legal position.30. TheTribunal as well as the High Court, had invoked the principle of justice and equity, and the doctrine of fairness, while recording their eventual findings in favour of Kalpana Mukherjee. It is, therefore, necessary for us, to delve upon the above aspect of the matter.In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it.While deciding the proposition in hand, we must keep in mind the law declared by this Court on the subject of fiduciary relationship. We will also proceed by keeping in mind, what we have already concluded in the preceding paragraph, i.e., that relationship between Partha Mukherjee and Pratima Chowdhury was a relationship of faith, trust and confidence. Partha Mukherjee was in a domineering position. He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P. Roy. Pratima Chowdhury has lived for a very long time in the house of H.P. Roy. During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Pratima Chowdhury, for over a decade. In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury, is a very delicate and sensitive one. It is therefore, that Pratima Chowdhury extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him, when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury. In such fact situation, we are of the view, that the onus of substantiating the validity and genuineness of the transfer of flat no. 5D, by Pratima Chowdhury, through the letter dated 11.11.1992 and the document dated 13.11.1992, rested squarely on the shoulders of Kalpana Mukherjee. Because it was only the relationship between Partha Mukherjee and Pratima Chowdhury, which came to be extended to Kalpana Mukherjee. The document dated 13.11.1992 clearly expressed, that the above transfer was without consideration. Kalpana Mukherjee in her written reply before the Arbitrator asserted, that the above transfer was on a consideration of Rs.The Arbitrator in his order dated 5.2.1999 concluded, that Kalpana Mukherjee could not establish the passing of the above consideration to Pratima Chowdhury.e Tribunal, aswell as, the High Court, despite the factual assertion of Kalpana Mukherjee were of the view, that passing of consideration was not essential in determination of the genuineness of the transaction. We are of the view, thate Tribunal, aswell as, the High Court seriously erred in their approach, to the determination of the controversy. Even though the onus of proof rested on Kalpana Mukherjee, the matter was examined by requiring Pratima Chowdhury to establish all the alleged facts.We are of the view, that Kalpana Mukherjee miserably failed to discharge the burden of proof, which essentially rested on her. Pratima Chowdhury led evidence to show, that she was at Bombay on 11.11.1992 and 13.11.1992. In view of the above, the letter dated 11.11.1992 and the document dated 13.11.1992, shown to have been executed at Calcutta could not be readily accepted as genuine, for the said documents fell in the zone of suspicion, more so, because the manuscript of the letter dated 11.11.1992 was in thehandwriting of Partha Mukherjee.Leading to the inference, that Partha Mukherjee was the author of the above letter. It is therefore not incorrect to infer, that there seems to be a ring of truth, in the assertion made by Pratima Chowdhury, that Partha Mukherjee had obtained her signatures for executing the letter and document referred to above. We find no justification whatsoever for Pratima Chowdhury, to have transferred flat no. 5D to Kalpana Mukherjee, free of cost, even though she had purchased the same for a consideration of Rs. 4 lakhs in the year 1987. Specially so, when she had no direct intimate relationship with Kalpana Mukherjee. By the time the flat was transferred, more than a decade had passed by, during which period, the price of above flat, must have escalated manifold. Numerous other factual aspects have been examined by us above, which also clearly negate the assertions made by Kalpana Mukherjee. The same need not be repeated here, for reasons of brevity. Keeping in mind the above noted aspects, we are of the considered view, that invocation of the principle of justice and equity, and the doctrine of fairness, would in fact result in returning a finding in favour of Pratima Chowdhury, and not Kalpana Mukherjee. | 1 | 21,619 | 5,533 | ### Instruction:
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showing that the transaction is fair and honest.13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburners Principles of Equity, 2nd Ed., p.229, thus:"When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donors will."” (emphasis is ours) The above conclusions recorded by this Court, came to be reiterated recently in Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558. 31. While deciding the proposition in hand, we must keep in mind the law declared by this Court on the subject of fiduciary relationship. We will also proceed by keeping in mind, what we have already concluded in the preceding paragraph, i.e., that relationship between Partha Mukherjee and Pratima Chowdhury was a relationship of faith, trust and confidence. Partha Mukherjee was in a domineering position. He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P. Roy. Pratima Chowdhury has lived for a very long time in the house of H.P. Roy. During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Pratima Chowdhury, for over a decade. In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury, is a very delicate and sensitive one. It is therefore, that Pratima Chowdhury extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him, when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury. In such fact situation, we are of the view, that the onus of substantiating the validity and genuineness of the transfer of flat no. 5D, by Pratima Chowdhury, through the letter dated 11.11.1992 and the document dated 13.11.1992, rested squarely on the shoulders of Kalpana Mukherjee. Because it was only the relationship between Partha Mukherjee and Pratima Chowdhury, which came to be extended to Kalpana Mukherjee. The document dated 13.11.1992 clearly expressed, that the above transfer was without consideration. Kalpana Mukherjee in her written reply before the Arbitrator asserted, that the above transfer was on a consideration of Rs.4,29,000/-. The Arbitrator in his order dated 5.2.1999 concluded, that Kalpana Mukherjee could not establish the passing of the above consideration to Pratima Chowdhury. The Cooperative Tribunal, as well as, the High Court, despite the factual assertion of Kalpana Mukherjee were of the view, that passing of consideration was not essential in determination of the genuineness of the transaction. We are of the view, that the Cooperative Tribunal, as well as, the High Court seriously erred in their approach, to the determination of the controversy. Even though the onus of proof rested on Kalpana Mukherjee, the matter was examined by requiring Pratima Chowdhury to establish all the alleged facts.We are of the view, that Kalpana Mukherjee miserably failed to discharge the burden of proof, which essentially rested on her. Pratima Chowdhury led evidence to show, that she was at Bombay on 11.11.1992 and 13.11.1992. In view of the above, the letter dated 11.11.1992 and the document dated 13.11.1992, shown to have been executed at Calcutta could not be readily accepted as genuine, for the said documents fell in the zone of suspicion, more so, because the manuscript of the letter dated 11.11.1992 was in the hand-writing of Partha Mukherjee. Leading to the inference, that Partha Mukherjee was the author of the above letter. It is therefore not incorrect to infer, that there seems to be a ring of truth, in the assertion made by Pratima Chowdhury, that Partha Mukherjee had obtained her signatures for executing the letter and document referred to above. We find no justification whatsoever for Pratima Chowdhury, to have transferred flat no. 5D to Kalpana Mukherjee, free of cost, even though she had purchased the same for a consideration of Rs. 4 lakhs in the year 1987. Specially so, when she had no direct intimate relationship with Kalpana Mukherjee. By the time the flat was transferred, more than a decade had passed by, during which period, the price of above flat, must have escalated manifold. Numerous other factual aspects have been examined by us above, which also clearly negate the assertions made by Kalpana Mukherjee. The same need not be repeated here, for reasons of brevity. Keeping in mind the above noted aspects, we are of the considered view, that invocation of the principle of justice and equity, and the doctrine of fairness, would in fact result in returning a finding in favour of Pratima Chowdhury, and not Kalpana Mukherjee.
### Response:
1
### Explanation:
the fact, recorded by theTribunal and by the High Court, are bound to be treated as perverse.For all the reasons recorded by us in foregoingwe are of the view that theTribunal as well as the High Court, seriously erred in recording their conclusions. We are satisfied in further recording, that the Arbitrator was wholly justified in allowing the Dispute Case filed by Pratima Chowdhury, by correctly appreciating the factual and legal position.30. TheTribunal as well as the High Court, had invoked the principle of justice and equity, and the doctrine of fairness, while recording their eventual findings in favour of Kalpana Mukherjee. It is, therefore, necessary for us, to delve upon the above aspect of the matter.In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it.While deciding the proposition in hand, we must keep in mind the law declared by this Court on the subject of fiduciary relationship. We will also proceed by keeping in mind, what we have already concluded in the preceding paragraph, i.e., that relationship between Partha Mukherjee and Pratima Chowdhury was a relationship of faith, trust and confidence. Partha Mukherjee was in a domineering position. He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P. Roy. Pratima Chowdhury has lived for a very long time in the house of H.P. Roy. During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Pratima Chowdhury, for over a decade. In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury, is a very delicate and sensitive one. It is therefore, that Pratima Chowdhury extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him, when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury. In such fact situation, we are of the view, that the onus of substantiating the validity and genuineness of the transfer of flat no. 5D, by Pratima Chowdhury, through the letter dated 11.11.1992 and the document dated 13.11.1992, rested squarely on the shoulders of Kalpana Mukherjee. Because it was only the relationship between Partha Mukherjee and Pratima Chowdhury, which came to be extended to Kalpana Mukherjee. The document dated 13.11.1992 clearly expressed, that the above transfer was without consideration. Kalpana Mukherjee in her written reply before the Arbitrator asserted, that the above transfer was on a consideration of Rs.The Arbitrator in his order dated 5.2.1999 concluded, that Kalpana Mukherjee could not establish the passing of the above consideration to Pratima Chowdhury.e Tribunal, aswell as, the High Court, despite the factual assertion of Kalpana Mukherjee were of the view, that passing of consideration was not essential in determination of the genuineness of the transaction. We are of the view, thate Tribunal, aswell as, the High Court seriously erred in their approach, to the determination of the controversy. Even though the onus of proof rested on Kalpana Mukherjee, the matter was examined by requiring Pratima Chowdhury to establish all the alleged facts.We are of the view, that Kalpana Mukherjee miserably failed to discharge the burden of proof, which essentially rested on her. Pratima Chowdhury led evidence to show, that she was at Bombay on 11.11.1992 and 13.11.1992. In view of the above, the letter dated 11.11.1992 and the document dated 13.11.1992, shown to have been executed at Calcutta could not be readily accepted as genuine, for the said documents fell in the zone of suspicion, more so, because the manuscript of the letter dated 11.11.1992 was in thehandwriting of Partha Mukherjee.Leading to the inference, that Partha Mukherjee was the author of the above letter. It is therefore not incorrect to infer, that there seems to be a ring of truth, in the assertion made by Pratima Chowdhury, that Partha Mukherjee had obtained her signatures for executing the letter and document referred to above. We find no justification whatsoever for Pratima Chowdhury, to have transferred flat no. 5D to Kalpana Mukherjee, free of cost, even though she had purchased the same for a consideration of Rs. 4 lakhs in the year 1987. Specially so, when she had no direct intimate relationship with Kalpana Mukherjee. By the time the flat was transferred, more than a decade had passed by, during which period, the price of above flat, must have escalated manifold. Numerous other factual aspects have been examined by us above, which also clearly negate the assertions made by Kalpana Mukherjee. The same need not be repeated here, for reasons of brevity. Keeping in mind the above noted aspects, we are of the considered view, that invocation of the principle of justice and equity, and the doctrine of fairness, would in fact result in returning a finding in favour of Pratima Chowdhury, and not Kalpana Mukherjee.
|
K. Kunhambu Vs. Chandramma | 95(2) of the Karnataka Land Revenue Act, 1964, leaving the remaining 36 acres and 6.5 guntas without any such conversion allowing it to continue as agricultural land. When acquisition proceedings were initiated to acquire the said land for purposes of Karnataka Improvement Boards Act, 1996, the Company sought to claim under Section 79B(2)(a) of the Act exemption on the ground that the entire extent in its possession was agricultural land and as such was eligible for exemption relying upon Section 81(1)(b)(ii) the lands having been mortgaged to Mysore State Financial Corporation. Though the initial authority countenanced the claim and the Appellate Authority rejected it, the Company approached successfully the High Court and obtained relief, which came to be challenged in this Court, in that context. The relevant observations of this Court at Paragraph 9, set out hereinafter, as to the nature and character of the land that was really the subject matter of consideration and the reasons which weighed with this Court to interfere with the order of the High Court would show that, rather helping the plea of the appellant, it would lend support to the stand of the 1st respondent in view of the peculiar facts of this case and the specific factual finding recorded in favour of the 1st respondent as to the long, continuous and consistent user of the land for non-agricultural purposes of running Saw Mill Industry. Paragraph 9 of the decision reported in Shankara Textiles Mills Ltd. (supra), reads as follows: Thus the High Court has proceeded on the basis that there is no specific finding regarding the nature and usage of the land as agricultural and hence, the Special Deputy Commissioner could not treat it to be an agricultural land merely on account of the fact that permission for conversion of the land under Section 95(2) of the Revenue Act was sought (but admittedly not given). Secondly, it has proceeded on the footing that the land in question does not satisfy any of the characteristics as required under the definition of `land in Section 2(18) of the Act, i.e., Karnataka Land Reforms Act, investing the authorities with the jurisdiction to take proceedings under Section 79-B of the Act. We are afraid that the High Court has misread the facts on record. The consistent stand taken by the authorities is that the land was never converted for non-agricultural use as required by the provisions of Section 95(2) of the Revenue Act. The mere fact that at the relevant time, the land was not used for agricultural purpose or purposes subservient thereto as mentioned in Section 2(18) of the Act or that it was used for non-agricultural purpose, assuming it to be so, would not convert the agricultural land into a non-agricultural land for the purposes either of the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold otherwise would defeat the object of both the Acts and would, in particular, render the provisions of Section 95(2) of the Revenue Act, nugatory. Such an interpretation is not permissible by any rule of the interpretation of statutes. What is further, the respondent-Company had itself filed a declaration under Section 79-B(2)(a) of the Act stating therein that the entire disputed land was agricultural land and had claimed exemption from the provisions of the said Section 79-B under Section 109 of the Act on the ground that the land was mortgaged to the Mysore State Financial Corporation. We are, therefore, unable to agree with the view taken by the High Court on the point. 10. The land that was the subject matter of consideration by this Court in above noted case was indisputably agriculture and in such cases of land, unless actual conversion under Section 95(2) of the Revenue Act was sought and obtained, it will not stand excluded from the definition in Section 2(A)(18) of the Land Reforms Act. The provision for conversion of the user of the agricultural land for non-agricultural purposes, as envisaged under the Revenue Act, cannot be pressed into aid to deny or deprive the benefit of the later part of the definition of land in Section 2(A)(18) of the Land Reforms Act to a landowner on the basis of its exclusive user for non-agricultural purposes. In substance whereas the past exclusive and continuous use for non-agricultural purposes becomes relevant for extending benefit of later part of Section 2(A)(18), Section 95(2) of the Revenue Act becomes relevant only for future conversions of an agricultural land for its non-agricultural user. But in this case on hand even long prior to the coming into force of the Land Reforms Act on 2.10.1965 or the Revenue Act, the land was shown to have been used for non-agricultural purposes of running Saw Mill Industry and by virtue of the very definition of land in Land Reforms Act which does not seem to have been either specifically noticed or considered in the earlier case, no exception could be taken to the decision of the High Court, according relief to the 1st respondent by sustaining her claim. The decision reported in Om Prakash Agarwal & Ors. (supra), also has no relevance, in that the very issue as to the character of the land and whether the said land answers the description and definition of land in Section 2(14) of the Orissa Land Reforms Act, 1960, itself has been remitted for consideration afresh by the Competent Authority in the absence of any evidence on record to adjudicate the same, with opportunity to lead evidence, and the appeal before this Court was against such a remand order only. The general observations made without any particular reference to the meaning or ambit of the definition can be of no assistance to the appellant in this case when, under the definition of the Karnataka Act, the exclusive user of the land for non-agricultural purposes has the inevitable consequence of excluding such land from the purview of the very definition engrafted in Section 2(A)(18) for the purposes of the Act. | 0[ds]8. That apart, it could be seen from the definition of Land in the Act that though it comprehends in the first part land actually cultivated or cultivable, the later exclusionary part of the definition, but does not include house site or land used exclusively for non-agricultural purposes makes it abundantly clear that the actual and exclusive user for non-agricultural purposes, even the land otherwise cultivable or capable of being used for any purposes related to agriculture as enumerated therein, would stand excluded and fall outside the purview of the said definition in Section 2(A)(18) of the Act. When the land in question is itself not land as defined for the purposes of the Act, there is no scope or room for falling back up on the so-called object or aim of the legislation to extend the provisions of the Act to areas specifically left outside it against the express legislative mandate and Will, policy and intention. In addition thereto, the facts specifically disclosed and categorically found by the High Court on the basis of the materials on record would equally belie the claim of the appellant being a tenant as defined in Section 2(A)(34) of the Act9. The decision in Shankara Textile Mills Ltd. case (supra), has been rendered in totally different context and circumstances and cannot lend, in our view, any assistance to support the claims of the appellant in this case. It could be seen from the facts of that case, the company, which owned an extent of 49 acres and 38.25 guntas was able to get only an extent of 13 acres and 32.25 guntas converted into non-agricultural land under Section 95(2) of the Karnataka Land Revenue Act, 1964, leaving the remaining 36 acres and 6.5 guntas without any such conversion allowing it to continue as agricultural land. When acquisition proceedings were initiated to acquire the said land for purposes of Karnataka Improvement Boards Act, 1996, the Company sought to claim under Section 79B(2)(a) of the Act exemption on the ground that the entire extent in its possession was agricultural land and as such was eligible for exemption relying upon Section 81(1)(b)(ii) the lands having been mortgaged to Mysore State Financial Corporation. Though the initial authority countenanced the claim and the Appellate Authority rejected it, the Company approached successfully the High Court and obtained relief, which came to be challenged in this Court, in that context. The relevant observations of this Court at Paragraph 9, set out hereinafter, as to the nature and character of the land that was really the subject matter of consideration and the reasons which weighed with this Court to interfere with the order of the High Court would show that, rather helping the plea of the appellant, it would lend support to the stand of the 1st respondent in view of the peculiar facts of this case and the specific factual finding recorded in favour of the 1st respondent as to the long, continuous and consistent user of the land for non-agricultural purposes of running Saw Mill Industry. Paragraph 9 of the decision reported in Shankara Textiles Mills Ltd. (supra), reads as follows:Thus the High Court has proceeded on the basis that there is no specific finding regarding the nature and usage of the land as agricultural and hence, the Special Deputy Commissioner could not treat it to be an agricultural land merely on account of the fact that permission for conversion of the land under Section 95(2) of the Revenue Act was sought (but admittedly not given). Secondly, it has proceeded on the footing that the land in question does not satisfy any of the characteristics as required under the definition of `land in Section 2(18) of the Act, i.e., Karnataka Land Reforms Act, investing the authorities with the jurisdiction to take proceedings under Section 79-B of the Act. We are afraid that the High Court has misread the facts on record. The consistent stand taken by the authorities is that the land was never converted for non-agricultural use as required by the provisions of Section 95(2) of the Revenue Act. The mere fact that at the relevant time, the land was not used for agricultural purpose or purposes subservient thereto as mentioned in Section 2(18) of the Act or that it was used for non-agricultural purpose, assuming it to be so, would not convert the agricultural land into a non-agricultural land for the purposes either of the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold otherwise would defeat the object of both the Acts and would, in particular, render the provisions of Section 95(2) of the Revenue Act, nugatory. Such an interpretation is not permissible by any rule of the interpretation of statutes. What is further, the respondent-Company had itself filed a declaration under Section 79-B(2)(a) of the Act stating therein that the entire disputed land was agricultural land and had claimed exemption from the provisions of the said Section 79-B under Section 109 of the Act on the ground that the land was mortgaged to the Mysore State Financial Corporation. We are, therefore, unable to agree with the view taken by the High Court on the point10. The land that was the subject matter of consideration by this Court in above noted case was indisputably agriculture and in such cases of land, unless actual conversion under Section 95(2) of the Revenue Act was sought and obtained, it will not stand excluded from the definition in Section 2(A)(18) of the Land Reforms Act. The provision for conversion of the user of the agricultural land for non-agricultural purposes, as envisaged under the Revenue Act, cannot be pressed into aid to deny or deprive the benefit of the later part of the definition of land in Section 2(A)(18) of the Land Reforms Act to a landowner on the basis of its exclusive user for non-agricultural purposes. In substance whereas the past exclusive and continuous use for non-agricultural purposes becomes relevant for extending benefit of later part of Section 2(A)(18), Section 95(2) of the Revenue Act becomes relevant only for future conversions of an agricultural land for its non-agricultural user. But in this case on hand even long prior to the coming into force of the Land Reforms Act on 2.10.1965 or the Revenue Act, the land was shown to have been used for non-agricultural purposes of running Saw Mill Industry and by virtue of the very definition of land in Land Reforms Act which does not seem to have been either specifically noticed or considered in the earlier case, no exception could be taken to the decision of the High Court, according relief to the 1st respondent by sustaining her claim. The decision reported in Om Prakash Agarwal & Ors. (supra), also has no relevance, in that the very issue as to the character of the land and whether the said land answers the description and definition of land in Section 2(14) of the Orissa Land Reforms Act, 1960, itself has been remitted for consideration afresh by the Competent Authority in the absence of any evidence on record to adjudicate the same, with opportunity to lead evidence, and the appeal before this Court was against such a remand order only. The general observations made without any particular reference to the meaning or ambit of the definition can be of no assistance to the appellant in this case when, under the definition of the Karnataka Act, the exclusive user of the land for non-agricultural purposes has the inevitable consequence of excluding such land from the purview of the very definition engrafted in Section 2(A)(18) for the purposes of the Act | 0 | 3,929 | 1,456 | ### 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:
95(2) of the Karnataka Land Revenue Act, 1964, leaving the remaining 36 acres and 6.5 guntas without any such conversion allowing it to continue as agricultural land. When acquisition proceedings were initiated to acquire the said land for purposes of Karnataka Improvement Boards Act, 1996, the Company sought to claim under Section 79B(2)(a) of the Act exemption on the ground that the entire extent in its possession was agricultural land and as such was eligible for exemption relying upon Section 81(1)(b)(ii) the lands having been mortgaged to Mysore State Financial Corporation. Though the initial authority countenanced the claim and the Appellate Authority rejected it, the Company approached successfully the High Court and obtained relief, which came to be challenged in this Court, in that context. The relevant observations of this Court at Paragraph 9, set out hereinafter, as to the nature and character of the land that was really the subject matter of consideration and the reasons which weighed with this Court to interfere with the order of the High Court would show that, rather helping the plea of the appellant, it would lend support to the stand of the 1st respondent in view of the peculiar facts of this case and the specific factual finding recorded in favour of the 1st respondent as to the long, continuous and consistent user of the land for non-agricultural purposes of running Saw Mill Industry. Paragraph 9 of the decision reported in Shankara Textiles Mills Ltd. (supra), reads as follows: Thus the High Court has proceeded on the basis that there is no specific finding regarding the nature and usage of the land as agricultural and hence, the Special Deputy Commissioner could not treat it to be an agricultural land merely on account of the fact that permission for conversion of the land under Section 95(2) of the Revenue Act was sought (but admittedly not given). Secondly, it has proceeded on the footing that the land in question does not satisfy any of the characteristics as required under the definition of `land in Section 2(18) of the Act, i.e., Karnataka Land Reforms Act, investing the authorities with the jurisdiction to take proceedings under Section 79-B of the Act. We are afraid that the High Court has misread the facts on record. The consistent stand taken by the authorities is that the land was never converted for non-agricultural use as required by the provisions of Section 95(2) of the Revenue Act. The mere fact that at the relevant time, the land was not used for agricultural purpose or purposes subservient thereto as mentioned in Section 2(18) of the Act or that it was used for non-agricultural purpose, assuming it to be so, would not convert the agricultural land into a non-agricultural land for the purposes either of the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold otherwise would defeat the object of both the Acts and would, in particular, render the provisions of Section 95(2) of the Revenue Act, nugatory. Such an interpretation is not permissible by any rule of the interpretation of statutes. What is further, the respondent-Company had itself filed a declaration under Section 79-B(2)(a) of the Act stating therein that the entire disputed land was agricultural land and had claimed exemption from the provisions of the said Section 79-B under Section 109 of the Act on the ground that the land was mortgaged to the Mysore State Financial Corporation. We are, therefore, unable to agree with the view taken by the High Court on the point. 10. The land that was the subject matter of consideration by this Court in above noted case was indisputably agriculture and in such cases of land, unless actual conversion under Section 95(2) of the Revenue Act was sought and obtained, it will not stand excluded from the definition in Section 2(A)(18) of the Land Reforms Act. The provision for conversion of the user of the agricultural land for non-agricultural purposes, as envisaged under the Revenue Act, cannot be pressed into aid to deny or deprive the benefit of the later part of the definition of land in Section 2(A)(18) of the Land Reforms Act to a landowner on the basis of its exclusive user for non-agricultural purposes. In substance whereas the past exclusive and continuous use for non-agricultural purposes becomes relevant for extending benefit of later part of Section 2(A)(18), Section 95(2) of the Revenue Act becomes relevant only for future conversions of an agricultural land for its non-agricultural user. But in this case on hand even long prior to the coming into force of the Land Reforms Act on 2.10.1965 or the Revenue Act, the land was shown to have been used for non-agricultural purposes of running Saw Mill Industry and by virtue of the very definition of land in Land Reforms Act which does not seem to have been either specifically noticed or considered in the earlier case, no exception could be taken to the decision of the High Court, according relief to the 1st respondent by sustaining her claim. The decision reported in Om Prakash Agarwal & Ors. (supra), also has no relevance, in that the very issue as to the character of the land and whether the said land answers the description and definition of land in Section 2(14) of the Orissa Land Reforms Act, 1960, itself has been remitted for consideration afresh by the Competent Authority in the absence of any evidence on record to adjudicate the same, with opportunity to lead evidence, and the appeal before this Court was against such a remand order only. The general observations made without any particular reference to the meaning or ambit of the definition can be of no assistance to the appellant in this case when, under the definition of the Karnataka Act, the exclusive user of the land for non-agricultural purposes has the inevitable consequence of excluding such land from the purview of the very definition engrafted in Section 2(A)(18) for the purposes of the Act.
### Response:
0
### Explanation:
under Section 95(2) of the Karnataka Land Revenue Act, 1964, leaving the remaining 36 acres and 6.5 guntas without any such conversion allowing it to continue as agricultural land. When acquisition proceedings were initiated to acquire the said land for purposes of Karnataka Improvement Boards Act, 1996, the Company sought to claim under Section 79B(2)(a) of the Act exemption on the ground that the entire extent in its possession was agricultural land and as such was eligible for exemption relying upon Section 81(1)(b)(ii) the lands having been mortgaged to Mysore State Financial Corporation. Though the initial authority countenanced the claim and the Appellate Authority rejected it, the Company approached successfully the High Court and obtained relief, which came to be challenged in this Court, in that context. The relevant observations of this Court at Paragraph 9, set out hereinafter, as to the nature and character of the land that was really the subject matter of consideration and the reasons which weighed with this Court to interfere with the order of the High Court would show that, rather helping the plea of the appellant, it would lend support to the stand of the 1st respondent in view of the peculiar facts of this case and the specific factual finding recorded in favour of the 1st respondent as to the long, continuous and consistent user of the land for non-agricultural purposes of running Saw Mill Industry. Paragraph 9 of the decision reported in Shankara Textiles Mills Ltd. (supra), reads as follows:Thus the High Court has proceeded on the basis that there is no specific finding regarding the nature and usage of the land as agricultural and hence, the Special Deputy Commissioner could not treat it to be an agricultural land merely on account of the fact that permission for conversion of the land under Section 95(2) of the Revenue Act was sought (but admittedly not given). Secondly, it has proceeded on the footing that the land in question does not satisfy any of the characteristics as required under the definition of `land in Section 2(18) of the Act, i.e., Karnataka Land Reforms Act, investing the authorities with the jurisdiction to take proceedings under Section 79-B of the Act. We are afraid that the High Court has misread the facts on record. The consistent stand taken by the authorities is that the land was never converted for non-agricultural use as required by the provisions of Section 95(2) of the Revenue Act. The mere fact that at the relevant time, the land was not used for agricultural purpose or purposes subservient thereto as mentioned in Section 2(18) of the Act or that it was used for non-agricultural purpose, assuming it to be so, would not convert the agricultural land into a non-agricultural land for the purposes either of the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold otherwise would defeat the object of both the Acts and would, in particular, render the provisions of Section 95(2) of the Revenue Act, nugatory. Such an interpretation is not permissible by any rule of the interpretation of statutes. What is further, the respondent-Company had itself filed a declaration under Section 79-B(2)(a) of the Act stating therein that the entire disputed land was agricultural land and had claimed exemption from the provisions of the said Section 79-B under Section 109 of the Act on the ground that the land was mortgaged to the Mysore State Financial Corporation. We are, therefore, unable to agree with the view taken by the High Court on the point10. The land that was the subject matter of consideration by this Court in above noted case was indisputably agriculture and in such cases of land, unless actual conversion under Section 95(2) of the Revenue Act was sought and obtained, it will not stand excluded from the definition in Section 2(A)(18) of the Land Reforms Act. The provision for conversion of the user of the agricultural land for non-agricultural purposes, as envisaged under the Revenue Act, cannot be pressed into aid to deny or deprive the benefit of the later part of the definition of land in Section 2(A)(18) of the Land Reforms Act to a landowner on the basis of its exclusive user for non-agricultural purposes. In substance whereas the past exclusive and continuous use for non-agricultural purposes becomes relevant for extending benefit of later part of Section 2(A)(18), Section 95(2) of the Revenue Act becomes relevant only for future conversions of an agricultural land for its non-agricultural user. But in this case on hand even long prior to the coming into force of the Land Reforms Act on 2.10.1965 or the Revenue Act, the land was shown to have been used for non-agricultural purposes of running Saw Mill Industry and by virtue of the very definition of land in Land Reforms Act which does not seem to have been either specifically noticed or considered in the earlier case, no exception could be taken to the decision of the High Court, according relief to the 1st respondent by sustaining her claim. The decision reported in Om Prakash Agarwal & Ors. (supra), also has no relevance, in that the very issue as to the character of the land and whether the said land answers the description and definition of land in Section 2(14) of the Orissa Land Reforms Act, 1960, itself has been remitted for consideration afresh by the Competent Authority in the absence of any evidence on record to adjudicate the same, with opportunity to lead evidence, and the appeal before this Court was against such a remand order only. The general observations made without any particular reference to the meaning or ambit of the definition can be of no assistance to the appellant in this case when, under the definition of the Karnataka Act, the exclusive user of the land for non-agricultural purposes has the inevitable consequence of excluding such land from the purview of the very definition engrafted in Section 2(A)(18) for the purposes of the Act
|
Bathutmal Raichand Oswal Vs. Laxmibai R. Tarta & Another | certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Art. 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Art.227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts.8. Here, when we turn to the judgment of the High Court, we find that the High Court has clearly misconceived the scope and extent of its power under Art. 227 and overstepped the limits of its jurisdiction under that Article. It has proceeded to reappreciate the evidence for the purpose of correcting errors of fact supposed to have been committed by the District Court. That was clearly impermissible to the High Court in the exercise of its jurisdiction under Article 227. The District Court was the final court of fact and there being no appeal provided against the findings of fact reached by the District Court it was not open to the High Court to question the propriety or reasonableness of the conclusions drawn from the evidence by the District Court. The High Court could not convert itself into a court of appeal and examine the correctness of the findings of fact arrived at by the District Court. The limited power of interference which the High Court possessed under the Art. 227 was to see that the District Court functions within the limits of its authority and so far as that was concerned, there was no complaint against the District Court that it transgressed the limits of its authority. It is true that the High Court claimed to interfere with the findings of the fact reached by the District Court on the ground that the District Court had misread a part of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do under Art. 227. This is precisely what the High Court did in Nagendra Nath Boras case, 1958 SCR 1240 = (AIR 1958 SC 398 ) (supra) while setting aside the orders of the Appellate Authority under the Excise Act and that was disapproved by this Court in clearest terms. The exercise of the power of interference in that case was sought to be justified by reference both to Articles 226 and 227. So far as the exercise of jurisdiction under Art 226 is concerned, this Court pointed out that a writ or order of Certiorari could be issued by the High Court only if there was an error of law apparent on the face of the record and no error of fact, howsoever apparent on the face of the record, could be a ground for interference by the High Court exercising its writ jurisdiction. It was observed by this Court, while applying this principle to the facts of appeals before it:"In the judgments and orders impugned in these appeals, the High Court has exercised its supervisory jurisdiction in respect of errors which cannot be said to be errors of law apparent on the face of the record. If at all they are errors, they are errors in appreciation of documentary evidence of affidavits, errors in drawing inferences or omission to draw inferences. In other words, those are errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected.""The High Court, in its several Judgments and orders has scrutinised, in great detail, the order passed by the excise authorities under the Act. we have not thought it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the High Court or of this Court to do so. The jurisdiction under Art. 226 of the Constitution is limited to seeing that the judicial or quasi-judicial tribunals or administrative bodies exercising quasi-judicial powers, do not exercise their powers in excess of their statutory jurisdiction but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. The Act has created its own hierarchy of officers and appellate authorities as indicated above, to administer the law. So long as those Authorities function within the letter and spirit of the law the High Court has no concern with the manner in which these powers have been exercised. In the instant cases, the High Court appears to have gone beyond the limits of its powers under Art. 226."This Court also held that the High Court was not justified in interfering with the orders of the Appellate Authority in exercise of its jurisdiction under Article 227. since this jurisdiction was limited only to seeing that the District Court functions within the limits of its authority and did not extend to correction of mere errors. What this Court said in that case applies with equal force in the present case and we must hold that the High Court acted beyond the limits of its jurisdiction under Art. 227 in interfering with the findings of fact reached by the District Court. Even if the Special Civil Application had been under Art. 226 that would have made no difference and the High Court would still have had no jurisdiction to disturb these findings of fact. Now, if these findings of fact stand, as they must, it is obvious that the dominant or primary user of the shop by the appellant was for business and not residence and there was accordingly no change of user of the shop, and if that be so, the respondents were not entitled to recover possession of the shop from the appellant either under clause (a) or clause (k) of sub-section (1) of Section 13. | 1[ds]We were taken through the judgment of the District Court as also through the judgment of the High Court and it was contended before us that the judgment of the District Court was based on a close and careful appreciation of the evidence and there was no justification at all for the High Court to set it aside on the assumption that it misread or ignored any part of the evidence or drew any inferences and conclusions which were unwarranted or unjustified. The consideration of this second contention would require us to examine the large mass of evidence on record and scrutinise the judgments of the District Court as well as the High court, but it is not necessary to go through this long and tedious exercise since we are of the view that the first contention raised on behalf of the appellant is well founded and the High Court plainly acted outside the limits of its jurisdiction under Article 227 in disturbing the findings of fact reached by the District Court.Here, when we turn to the judgment of the High Court, we find that the High Court has clearly misconceived the scope and extent of its power under Art. 227 and overstepped the limits of its jurisdiction under that Article. It has proceeded to reappreciate the evidence for the purpose of correcting errors of fact supposed to have been committed by the District Court. That was clearly impermissible to the High Court in the exercise of its jurisdiction under Article 227. The District Court was the final court of fact and there being no appeal provided against the findings of fact reached by the District Court it was not open to the High Court to question the propriety or reasonableness of the conclusions drawn from the evidence by the District Court. The High Court could not convert itself into a court of appeal and examine the correctness of the findings of fact arrived at by the District Court. The limited power of interference which the High Court possessed under the Art. 227 was to see that the District Court functions within the limits of its authority and so far as that was concerned, there was no complaint against the District Court that it transgressed the limits of its authority. It is true that the High Court claimed to interfere with the findings of the fact reached by the District Court on the ground that the District Court had misread a part of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do under Art. 227. This is precisely what the High Court did in Nagendra Nath Boras case, 1958 SCR 1240 = (AIR 1958 SC 398 ) (supra) while setting aside the orders of the Appellate Authority under the Excise Act and that was disapproved by this Court in clearest terms. The exercise of the power of interference in that case was sought to be justified by reference both to Articles 226 and 227. So far as the exercise of jurisdiction under Art 226 is concerned, this Court pointed out that a writ or order of Certiorari could be issued by the High Court only if there was an error of law apparent on the face of the record and no error of fact, howsoever apparent on the face of the record, could be a ground for interference by the High Court exercising its writwas observed by this Court, while applying this principle to the facts of appeals before it:"In the judgments and orders impugned in these appeals, the High Court has exercised its supervisory jurisdiction in respect of errors which cannot be said to be errors of law apparent on the face of the record. If at all they are errors, they are errors in appreciation of documentary evidence of affidavits, errors in drawing inferences or omission to draw inferences. In other words, those are errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected.""The High Court, in its several Judgments and orders has scrutinised, in great detail, the order passed by the excise authorities under the Act. we have not thought it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the High Court or of this Court to do so. The jurisdiction under Art. 226 of the Constitution is limited to seeing that the judicial ortribunals or administrative bodies exercisingpowers, do not exercise their powers in excess of their statutory jurisdiction but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. The Act has created its own hierarchy of officers and appellate authorities as indicated above, to administer the law. So long as those Authorities function within the letter and spirit of the law the High Court has no concern with the manner in which these powers have been exercised. In the instant cases, the High Court appears to have gone beyond the limits of its powers under Art. 226."This Court also held that the High Court was not justified in interfering with the orders of the Appellate Authority in exercise of its jurisdiction under Article 227. since this jurisdiction was limited only to seeing that the District Court functions within the limits of its authority and did not extend to correction of mere errors. What this Court said in that case applies with equal force in the present case and we must hold that the High Court acted beyond the limits of its jurisdiction under Art. 227 in interfering with the findings of fact reached by the District Court. Even if the Special Civil Application had been under Art. 226 that would have made no difference and the High Court would still have had no jurisdiction to disturb these findings of fact. Now, if these findings of fact stand, as they must, it is obvious that the dominant or primary user of the shop by the appellant was for business and not residence and there was accordingly no change of user of the shop, and if that be so, the respondents were not entitled to recover possession of the shop from the appellant either under clause (a) or clause (k) ofsubsection (1) of | 1 | 4,456 | 1,140 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Art. 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Art.227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts.8. Here, when we turn to the judgment of the High Court, we find that the High Court has clearly misconceived the scope and extent of its power under Art. 227 and overstepped the limits of its jurisdiction under that Article. It has proceeded to reappreciate the evidence for the purpose of correcting errors of fact supposed to have been committed by the District Court. That was clearly impermissible to the High Court in the exercise of its jurisdiction under Article 227. The District Court was the final court of fact and there being no appeal provided against the findings of fact reached by the District Court it was not open to the High Court to question the propriety or reasonableness of the conclusions drawn from the evidence by the District Court. The High Court could not convert itself into a court of appeal and examine the correctness of the findings of fact arrived at by the District Court. The limited power of interference which the High Court possessed under the Art. 227 was to see that the District Court functions within the limits of its authority and so far as that was concerned, there was no complaint against the District Court that it transgressed the limits of its authority. It is true that the High Court claimed to interfere with the findings of the fact reached by the District Court on the ground that the District Court had misread a part of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do under Art. 227. This is precisely what the High Court did in Nagendra Nath Boras case, 1958 SCR 1240 = (AIR 1958 SC 398 ) (supra) while setting aside the orders of the Appellate Authority under the Excise Act and that was disapproved by this Court in clearest terms. The exercise of the power of interference in that case was sought to be justified by reference both to Articles 226 and 227. So far as the exercise of jurisdiction under Art 226 is concerned, this Court pointed out that a writ or order of Certiorari could be issued by the High Court only if there was an error of law apparent on the face of the record and no error of fact, howsoever apparent on the face of the record, could be a ground for interference by the High Court exercising its writ jurisdiction. It was observed by this Court, while applying this principle to the facts of appeals before it:"In the judgments and orders impugned in these appeals, the High Court has exercised its supervisory jurisdiction in respect of errors which cannot be said to be errors of law apparent on the face of the record. If at all they are errors, they are errors in appreciation of documentary evidence of affidavits, errors in drawing inferences or omission to draw inferences. In other words, those are errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected.""The High Court, in its several Judgments and orders has scrutinised, in great detail, the order passed by the excise authorities under the Act. we have not thought it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the High Court or of this Court to do so. The jurisdiction under Art. 226 of the Constitution is limited to seeing that the judicial or quasi-judicial tribunals or administrative bodies exercising quasi-judicial powers, do not exercise their powers in excess of their statutory jurisdiction but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. The Act has created its own hierarchy of officers and appellate authorities as indicated above, to administer the law. So long as those Authorities function within the letter and spirit of the law the High Court has no concern with the manner in which these powers have been exercised. In the instant cases, the High Court appears to have gone beyond the limits of its powers under Art. 226."This Court also held that the High Court was not justified in interfering with the orders of the Appellate Authority in exercise of its jurisdiction under Article 227. since this jurisdiction was limited only to seeing that the District Court functions within the limits of its authority and did not extend to correction of mere errors. What this Court said in that case applies with equal force in the present case and we must hold that the High Court acted beyond the limits of its jurisdiction under Art. 227 in interfering with the findings of fact reached by the District Court. Even if the Special Civil Application had been under Art. 226 that would have made no difference and the High Court would still have had no jurisdiction to disturb these findings of fact. Now, if these findings of fact stand, as they must, it is obvious that the dominant or primary user of the shop by the appellant was for business and not residence and there was accordingly no change of user of the shop, and if that be so, the respondents were not entitled to recover possession of the shop from the appellant either under clause (a) or clause (k) of sub-section (1) of Section 13.
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it misread or ignored any part of the evidence or drew any inferences and conclusions which were unwarranted or unjustified. The consideration of this second contention would require us to examine the large mass of evidence on record and scrutinise the judgments of the District Court as well as the High court, but it is not necessary to go through this long and tedious exercise since we are of the view that the first contention raised on behalf of the appellant is well founded and the High Court plainly acted outside the limits of its jurisdiction under Article 227 in disturbing the findings of fact reached by the District Court.Here, when we turn to the judgment of the High Court, we find that the High Court has clearly misconceived the scope and extent of its power under Art. 227 and overstepped the limits of its jurisdiction under that Article. It has proceeded to reappreciate the evidence for the purpose of correcting errors of fact supposed to have been committed by the District Court. That was clearly impermissible to the High Court in the exercise of its jurisdiction under Article 227. The District Court was the final court of fact and there being no appeal provided against the findings of fact reached by the District Court it was not open to the High Court to question the propriety or reasonableness of the conclusions drawn from the evidence by the District Court. The High Court could not convert itself into a court of appeal and examine the correctness of the findings of fact arrived at by the District Court. The limited power of interference which the High Court possessed under the Art. 227 was to see that the District Court functions within the limits of its authority and so far as that was concerned, there was no complaint against the District Court that it transgressed the limits of its authority. It is true that the High Court claimed to interfere with the findings of the fact reached by the District Court on the ground that the District Court had misread a part of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do under Art. 227. This is precisely what the High Court did in Nagendra Nath Boras case, 1958 SCR 1240 = (AIR 1958 SC 398 ) (supra) while setting aside the orders of the Appellate Authority under the Excise Act and that was disapproved by this Court in clearest terms. The exercise of the power of interference in that case was sought to be justified by reference both to Articles 226 and 227. So far as the exercise of jurisdiction under Art 226 is concerned, this Court pointed out that a writ or order of Certiorari could be issued by the High Court only if there was an error of law apparent on the face of the record and no error of fact, howsoever apparent on the face of the record, could be a ground for interference by the High Court exercising its writwas observed by this Court, while applying this principle to the facts of appeals before it:"In the judgments and orders impugned in these appeals, the High Court has exercised its supervisory jurisdiction in respect of errors which cannot be said to be errors of law apparent on the face of the record. If at all they are errors, they are errors in appreciation of documentary evidence of affidavits, errors in drawing inferences or omission to draw inferences. In other words, those are errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected.""The High Court, in its several Judgments and orders has scrutinised, in great detail, the order passed by the excise authorities under the Act. we have not thought it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the High Court or of this Court to do so. The jurisdiction under Art. 226 of the Constitution is limited to seeing that the judicial ortribunals or administrative bodies exercisingpowers, do not exercise their powers in excess of their statutory jurisdiction but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. The Act has created its own hierarchy of officers and appellate authorities as indicated above, to administer the law. So long as those Authorities function within the letter and spirit of the law the High Court has no concern with the manner in which these powers have been exercised. In the instant cases, the High Court appears to have gone beyond the limits of its powers under Art. 226."This Court also held that the High Court was not justified in interfering with the orders of the Appellate Authority in exercise of its jurisdiction under Article 227. since this jurisdiction was limited only to seeing that the District Court functions within the limits of its authority and did not extend to correction of mere errors. What this Court said in that case applies with equal force in the present case and we must hold that the High Court acted beyond the limits of its jurisdiction under Art. 227 in interfering with the findings of fact reached by the District Court. Even if the Special Civil Application had been under Art. 226 that would have made no difference and the High Court would still have had no jurisdiction to disturb these findings of fact. Now, if these findings of fact stand, as they must, it is obvious that the dominant or primary user of the shop by the appellant was for business and not residence and there was accordingly no change of user of the shop, and if that be so, the respondents were not entitled to recover possession of the shop from the appellant either under clause (a) or clause (k) ofsubsection (1) of
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Magathane Samyukta Sahakari Sheti Sanstha Vs. Trustees of Seth Mulraj Khatau Trust Settlement & Others | argued that on the "tillers day" i.e., April 1, 1957, as prescribed by Section 32 of the Tenancy Act, every tenant must be deemed to have purchased from his landlord free of all encumbrances, the land held by him as a tenant. This deeming provision must, according to the Counsel, be taken to its logical end with the result that once the tenants in the present case had by fiction become the purchasers of the land there was no question of the tenants later expressing their unwillingness to purchase the same. We are unable to agree with this submission. Section 32(1) of the Tenancy Act on which reliance is placed for this argument itself states in express terms that this fiction is subject to the other provisions of Section 32 and to the provisions of the next succeeding sections of the Act. So far as the present case is concerned we need only refer to Section 32-G which requires the Tribunal soon after the tillers day to publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon : (a) all tenants who under Section 32 are deemed to have purchased the lands, (b) all landlords of such lands, and (c) all other persons interested therein, to appear before it on the specified date. Notices are also required to be issued individually to each such tenant and landlord and, as far as possible, to other persons to appear before it on such date. The Tribunal is then required to record in the prescribed manner the statement of the tenant whether or not he is willing to purchase the land held by him as a tenant. When a tenant fails to appear or makes a statement that he is not willing to purchase the land the tribunal is enjoined to declare by a written order that such tenant is not willing to purchase the land and that the purchase is ineffective. These provisions which are contained in sub-sections (1) to (3) of Section 32-G furnish a complete answer to the appellants contention. It is particularly noteworthy that where a tenant fails to appear, even in that event the Tribunal has to declare by a written order that the purchase is ineffective. 4. When confronted with this position the appellants learned Counsel submitted that the appellant Society had stepped into the shoes of the tenants and it was this Society which was entitled to claim the right to purchase the land. According to the arguments it was the Society which should have been called by means of a notice under Section 32-G(1) and asked whether it was willing to purchase the land. The tenants, Shri Patel contended, could not deprive the Society of this right. This submission is equally untenable. As observed by the Tribunal in the impugned order the Society had neither obtained possession of the land nor had it acquired any interest therein. In face of this conclusion it is not possible to hold that the Society had a right to purchase the land. This conclusion was arrived at after going through all the relevant evidence on the record and other material circumstances. Every aspect of the controversy appears to have been taken into consideration by the Tribunal. No error of law in the impugned order while dealing with this aspect was pointed out on behalf of the appellant and we are unable to find any cogent ground for interfering with this conclusion on appeal under Article 136 of the Constitution. 5. As last resort Shri Patel submitted that the original pooling agreements by means of which the land in question was passed on to the Society were actually produced on the record of this case and they were either clandestinely removed by some one from the record or otherwise lost. He attempted to substantiate this submission by pointing out that in this Court the State, as a respondent, had intimated to the office to print the pooling agreements. In the list of documents to be printed on behalf of the State the agreements are entered at serial No. 70. It was further pointed out that the office of this Court had sought the state Counsel Shri Dhebars assistance in tracing those documents from the record. We are unable to hold on the basis of this entry in the list that the original pooling agreements had in fact been produced in the record. The finding of the Tribunal that the pooling agreements had not been produced is certainly indicative at least of the fact that they had not been brought to its notice during the arguments. It is not the appellants case before us that the Tribunals attention was in fact drawn to these agreements and the Tribunal was in error in not considering them on the erroneous assumption that they had not been produced. This aspect also militates against the appellants suggestion that the documents had actually been produced. But assuming they were, as observed by the Tribunal, that too would not show that the Society had acquired any interest in the land in question. Our attention was not drawn to any provision of the statute according to which the Society in the circumstances of the present case could be considered to have become a tenant so a : (1) to be deemed to have purchased the land on the "tillers day" and (2) to be entitled to notice under Section 32-G for the purpose of claiming title as purchaser to the land in question. On the view that we have taken it is unnecessary to go into the submission urged by Shri Patel that an enquiry should now be held by this Court or on remand by the Tribunal into the question whether or not the original pooling agreements were actually produced on the record and that they disappeared thereafter. The conclusions of Tribunal appear to us to be binding and not open to any valid criticism. 6. | 0[ds]We are unable to agree with this submission. Section 32(1) of the Tenancy Act on which reliance is placed for this argument itself states in express terms that this fiction is subject to the other provisions of Section 32 and to the provisions of the next succeeding sections of the Act. So far as the present case is concerned we need only refer to SectionG which requires the Tribunal soon after the tillers day to publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon : (a) all tenants who under Section 32 are deemed to have purchased the lands, (b) all landlords of such lands, and (c) all other persons interested therein, to appear before it on the specified date. Notices are also required to be issued individually to each such tenant and landlord and, as far as possible, to other persons to appear before it on such date. The Tribunal is then required to record in the prescribed manner the statement of the tenant whether or not he is willing to purchase the land held by him as a tenant. When a tenant fails to appear or makes a statement that he is not willing to purchase the land the tribunal is enjoined to declare by a written order that such tenant is not willing to purchase the land and that the purchase is ineffective. These provisions which are contained ins (1) to (3) of SectionG furnish a complete answer to the appellants contention. It is particularly noteworthy that where a tenant fails to appear, even in that event the Tribunal has to declare by a written order that the purchase is ineffectiveThis submission is equally untenable. As observed by the Tribunal in the impugned order the Society had neither obtained possession of the land nor had it acquired any interest therein. In face of this conclusion it is not possible to hold that the Society had a right to purchase the land. This conclusion was arrived at after going through all the relevant evidence on the record and other material circumstances. Every aspect of the controversy appears to have been taken into consideration by the Tribunal. No error of law in the impugned order while dealing with this aspect was pointed out on behalf of the appellant and we are unable to find any cogent ground for interfering with this conclusion on appeal under Article 136 of the ConstitutionWe are unable to hold on the basis of this entry in the list that the original pooling agreements had in fact been produced in the record. The finding of the Tribunal that the pooling agreements had not been produced is certainly indicative at least of the fact that they had not been brought to its notice during the arguments. It is not the appellants case before us that the Tribunals attention was in fact drawn to these agreements and the Tribunal was in error in not considering them on the erroneous assumption that they had not been produced. This aspect also militates against the appellants suggestion that the documents had actually been produced. But assuming they were, as observed by the Tribunal, that too would not show that the Society had acquired any interest in the land in question. Our attention was not drawn to any provision of the statute according to which the Society in the circumstances of the present case could be considered to have become a tenant so a : (1) to be deemed to have purchased the land on the "tillers day" and (2) to be entitled to notice under SectionG for the purpose of claiming title as purchaser to the land in question. On the view that we have taken it is unnecessary to go into the submission urged by Shri Patel that an enquiry should now be held by this Court or on remand by the Tribunal into the question whether or not the original pooling agreements were actually produced on the record and that they disappeared thereafter. The conclusions of Tribunal appear to us to be binding and not open to any valid criticism. | 0 | 2,733 | 745 | ### 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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argued that on the "tillers day" i.e., April 1, 1957, as prescribed by Section 32 of the Tenancy Act, every tenant must be deemed to have purchased from his landlord free of all encumbrances, the land held by him as a tenant. This deeming provision must, according to the Counsel, be taken to its logical end with the result that once the tenants in the present case had by fiction become the purchasers of the land there was no question of the tenants later expressing their unwillingness to purchase the same. We are unable to agree with this submission. Section 32(1) of the Tenancy Act on which reliance is placed for this argument itself states in express terms that this fiction is subject to the other provisions of Section 32 and to the provisions of the next succeeding sections of the Act. So far as the present case is concerned we need only refer to Section 32-G which requires the Tribunal soon after the tillers day to publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon : (a) all tenants who under Section 32 are deemed to have purchased the lands, (b) all landlords of such lands, and (c) all other persons interested therein, to appear before it on the specified date. Notices are also required to be issued individually to each such tenant and landlord and, as far as possible, to other persons to appear before it on such date. The Tribunal is then required to record in the prescribed manner the statement of the tenant whether or not he is willing to purchase the land held by him as a tenant. When a tenant fails to appear or makes a statement that he is not willing to purchase the land the tribunal is enjoined to declare by a written order that such tenant is not willing to purchase the land and that the purchase is ineffective. These provisions which are contained in sub-sections (1) to (3) of Section 32-G furnish a complete answer to the appellants contention. It is particularly noteworthy that where a tenant fails to appear, even in that event the Tribunal has to declare by a written order that the purchase is ineffective. 4. When confronted with this position the appellants learned Counsel submitted that the appellant Society had stepped into the shoes of the tenants and it was this Society which was entitled to claim the right to purchase the land. According to the arguments it was the Society which should have been called by means of a notice under Section 32-G(1) and asked whether it was willing to purchase the land. The tenants, Shri Patel contended, could not deprive the Society of this right. This submission is equally untenable. As observed by the Tribunal in the impugned order the Society had neither obtained possession of the land nor had it acquired any interest therein. In face of this conclusion it is not possible to hold that the Society had a right to purchase the land. This conclusion was arrived at after going through all the relevant evidence on the record and other material circumstances. Every aspect of the controversy appears to have been taken into consideration by the Tribunal. No error of law in the impugned order while dealing with this aspect was pointed out on behalf of the appellant and we are unable to find any cogent ground for interfering with this conclusion on appeal under Article 136 of the Constitution. 5. As last resort Shri Patel submitted that the original pooling agreements by means of which the land in question was passed on to the Society were actually produced on the record of this case and they were either clandestinely removed by some one from the record or otherwise lost. He attempted to substantiate this submission by pointing out that in this Court the State, as a respondent, had intimated to the office to print the pooling agreements. In the list of documents to be printed on behalf of the State the agreements are entered at serial No. 70. It was further pointed out that the office of this Court had sought the state Counsel Shri Dhebars assistance in tracing those documents from the record. We are unable to hold on the basis of this entry in the list that the original pooling agreements had in fact been produced in the record. The finding of the Tribunal that the pooling agreements had not been produced is certainly indicative at least of the fact that they had not been brought to its notice during the arguments. It is not the appellants case before us that the Tribunals attention was in fact drawn to these agreements and the Tribunal was in error in not considering them on the erroneous assumption that they had not been produced. This aspect also militates against the appellants suggestion that the documents had actually been produced. But assuming they were, as observed by the Tribunal, that too would not show that the Society had acquired any interest in the land in question. Our attention was not drawn to any provision of the statute according to which the Society in the circumstances of the present case could be considered to have become a tenant so a : (1) to be deemed to have purchased the land on the "tillers day" and (2) to be entitled to notice under Section 32-G for the purpose of claiming title as purchaser to the land in question. On the view that we have taken it is unnecessary to go into the submission urged by Shri Patel that an enquiry should now be held by this Court or on remand by the Tribunal into the question whether or not the original pooling agreements were actually produced on the record and that they disappeared thereafter. The conclusions of Tribunal appear to us to be binding and not open to any valid criticism. 6.
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We are unable to agree with this submission. Section 32(1) of the Tenancy Act on which reliance is placed for this argument itself states in express terms that this fiction is subject to the other provisions of Section 32 and to the provisions of the next succeeding sections of the Act. So far as the present case is concerned we need only refer to SectionG which requires the Tribunal soon after the tillers day to publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon : (a) all tenants who under Section 32 are deemed to have purchased the lands, (b) all landlords of such lands, and (c) all other persons interested therein, to appear before it on the specified date. Notices are also required to be issued individually to each such tenant and landlord and, as far as possible, to other persons to appear before it on such date. The Tribunal is then required to record in the prescribed manner the statement of the tenant whether or not he is willing to purchase the land held by him as a tenant. When a tenant fails to appear or makes a statement that he is not willing to purchase the land the tribunal is enjoined to declare by a written order that such tenant is not willing to purchase the land and that the purchase is ineffective. These provisions which are contained ins (1) to (3) of SectionG furnish a complete answer to the appellants contention. It is particularly noteworthy that where a tenant fails to appear, even in that event the Tribunal has to declare by a written order that the purchase is ineffectiveThis submission is equally untenable. As observed by the Tribunal in the impugned order the Society had neither obtained possession of the land nor had it acquired any interest therein. In face of this conclusion it is not possible to hold that the Society had a right to purchase the land. This conclusion was arrived at after going through all the relevant evidence on the record and other material circumstances. Every aspect of the controversy appears to have been taken into consideration by the Tribunal. No error of law in the impugned order while dealing with this aspect was pointed out on behalf of the appellant and we are unable to find any cogent ground for interfering with this conclusion on appeal under Article 136 of the ConstitutionWe are unable to hold on the basis of this entry in the list that the original pooling agreements had in fact been produced in the record. The finding of the Tribunal that the pooling agreements had not been produced is certainly indicative at least of the fact that they had not been brought to its notice during the arguments. It is not the appellants case before us that the Tribunals attention was in fact drawn to these agreements and the Tribunal was in error in not considering them on the erroneous assumption that they had not been produced. This aspect also militates against the appellants suggestion that the documents had actually been produced. But assuming they were, as observed by the Tribunal, that too would not show that the Society had acquired any interest in the land in question. Our attention was not drawn to any provision of the statute according to which the Society in the circumstances of the present case could be considered to have become a tenant so a : (1) to be deemed to have purchased the land on the "tillers day" and (2) to be entitled to notice under SectionG for the purpose of claiming title as purchaser to the land in question. On the view that we have taken it is unnecessary to go into the submission urged by Shri Patel that an enquiry should now be held by this Court or on remand by the Tribunal into the question whether or not the original pooling agreements were actually produced on the record and that they disappeared thereafter. The conclusions of Tribunal appear to us to be binding and not open to any valid criticism.
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Rite Approach Group Ltd Vs. Rosoboron Export | arguments were heard and order was reserved awaiting the decision of the seven-Judge Bench. Now recently on 26.10.2005 the seven-Judge Bench has delivered its decision in Civil Appeal No. 4168 of 2003=VIII (2005) SLT 405, M/s. S.B.P. & Co. v. M/s. Patel Engineering Ltd. & Anr. and the earlier decision rendered in the case of Konkan Railway Corporation Ltd. And Another v. Rani Construction Pvt. Ltd., I (2002) SLT 533=I (2002) CLT 177 (SC)=(2002) 2 SCC 388 , has been reversed and now it has been held that the order passed by the Judge on designation by the Hon’ble Chief Justice, the order shall be judicial order and not administrative order as was held in Konkan Railway case (supra). Therefore now legal position has been crystallized that the order passed by the Judge on nomination of the Hon’ble Chief Justice of India under Section 11 shall be judicial order not amenable to any appeal. The legal position has been summarized as under in above decision ofM/s. S.B.P. & Co. (supra): “46. We, therefore, sum up our conclusions as follows:(i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power.(ii) The power under Section 11(6) of the Act, in its entirety, could be delegated by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court.(iii) In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated Judge would be that of the Chief Justice as conferred by the statute.(iv) The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the Arbitrator or Arbitrators. The Chief Justice or the Judge designated would be entitled to seek the opinion of an institution in the matter of nominating an Arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the Arbitrator could only be that of the Chief Justice or the Judge designate.(v) Designation of a District Judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act.(vi) Once the matter reaches the arbitral Tribunal or the sole Arbitrator, the High Court would not interfere with orders passed by the Arbitrator or the arbitral Tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.(vii) Since an order passed by the Chief Justice of the High Court or by the designated Judge of that Court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution of India to the Supreme Court.(viii) There can be no appeal against an order of the Chief Justice of India or a Judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act.(ix) In a case where an arbitral Tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act.(x) Since all were guided by the decision of this Court in Konkan Railway Corpn. Lts. & Anr. v. Rani Construction Pvt. Ltd. (supra), and orders under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of Arbitrators or arbitral Tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11(6) of the Act.(xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11(6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the concerned High Court or a Judge of that Court designated by the Chief Justice.(xii) The decision in Konkan Railway Corpn. Ltd. & Anr. v. Rani Construction Pvt. Ltd., (supra), is overruled.” 20. In the present case, as per the Agency Agreement dated 14.4.2000, Clause 6.2 categorically states that if any dispute arises between the parties then the same shall be submitted to Arbitration Court under the Chamber of Commerce and Trade of the Russian Federation. Therefore there is a specific clause mentioned in the Agency Agreement as to which Court will have jurisdiction to try and dispose of the matter.21. In view of the specific provision specifying the jurisdiction of the Court to decide the matter, this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on particular Court to decide the matter then it automatically ousts the jurisdiction of other Court. In this agreement, the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved. In view of the specific arbitration clause conferring power on the Chamber of Commerce and Trade of the Russian Federation, it is that authority which alone will arbitrate the matter and the finding of that arbitral Tribunal shall be final and obligatory for both the parties. | 0[ds]17. The respondent opposed the petition by filing a detailed reply and one of the principal submissions of thelearned Counsel for the respondent was that Clause 6.2 of the Agency Agreement dated 14.4.2000 provides that in case of dispute between the parties, the parties will resort to arbitration for resolution of their dispute and they will submit to Arbitration Court under the Chamber of Commerce and Trade of the Russian Federation.Therefore this Court has no jurisdiction to entertain this petition.In the present case, as per the Agency Agreement dated 14.4.2000, Clause 6.2 categorically states that if any dispute arises between the parties then the same shall be submitted to Arbitration Court under the Chamber of Commerce and Trade of the Russian Federation. Therefore there is a specific clause mentioned in the Agency Agreement as to which Court will have jurisdiction to try and dispose of the matter.21. In view of the specific provision specifying the jurisdiction of the Court to decide the matter, this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on particular Court to decide the matter then it automatically ousts the jurisdiction of other Court. In this agreement, the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved. In view of the specific arbitration clause conferring power on the Chamber of Commerce and Trade of the Russian Federation, it is that authority which alone will arbitrate the matter and the finding of that arbitral Tribunal shall be final and obligatory for both the parties. | 0 | 2,910 | 286 | ### 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:
arguments were heard and order was reserved awaiting the decision of the seven-Judge Bench. Now recently on 26.10.2005 the seven-Judge Bench has delivered its decision in Civil Appeal No. 4168 of 2003=VIII (2005) SLT 405, M/s. S.B.P. & Co. v. M/s. Patel Engineering Ltd. & Anr. and the earlier decision rendered in the case of Konkan Railway Corporation Ltd. And Another v. Rani Construction Pvt. Ltd., I (2002) SLT 533=I (2002) CLT 177 (SC)=(2002) 2 SCC 388 , has been reversed and now it has been held that the order passed by the Judge on designation by the Hon’ble Chief Justice, the order shall be judicial order and not administrative order as was held in Konkan Railway case (supra). Therefore now legal position has been crystallized that the order passed by the Judge on nomination of the Hon’ble Chief Justice of India under Section 11 shall be judicial order not amenable to any appeal. The legal position has been summarized as under in above decision ofM/s. S.B.P. & Co. (supra): “46. We, therefore, sum up our conclusions as follows:(i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power.(ii) The power under Section 11(6) of the Act, in its entirety, could be delegated by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court.(iii) In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated Judge would be that of the Chief Justice as conferred by the statute.(iv) The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the Arbitrator or Arbitrators. The Chief Justice or the Judge designated would be entitled to seek the opinion of an institution in the matter of nominating an Arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the Arbitrator could only be that of the Chief Justice or the Judge designate.(v) Designation of a District Judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act.(vi) Once the matter reaches the arbitral Tribunal or the sole Arbitrator, the High Court would not interfere with orders passed by the Arbitrator or the arbitral Tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.(vii) Since an order passed by the Chief Justice of the High Court or by the designated Judge of that Court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution of India to the Supreme Court.(viii) There can be no appeal against an order of the Chief Justice of India or a Judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act.(ix) In a case where an arbitral Tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act.(x) Since all were guided by the decision of this Court in Konkan Railway Corpn. Lts. & Anr. v. Rani Construction Pvt. Ltd. (supra), and orders under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of Arbitrators or arbitral Tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11(6) of the Act.(xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11(6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the concerned High Court or a Judge of that Court designated by the Chief Justice.(xii) The decision in Konkan Railway Corpn. Ltd. & Anr. v. Rani Construction Pvt. Ltd., (supra), is overruled.” 20. In the present case, as per the Agency Agreement dated 14.4.2000, Clause 6.2 categorically states that if any dispute arises between the parties then the same shall be submitted to Arbitration Court under the Chamber of Commerce and Trade of the Russian Federation. Therefore there is a specific clause mentioned in the Agency Agreement as to which Court will have jurisdiction to try and dispose of the matter.21. In view of the specific provision specifying the jurisdiction of the Court to decide the matter, this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on particular Court to decide the matter then it automatically ousts the jurisdiction of other Court. In this agreement, the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved. In view of the specific arbitration clause conferring power on the Chamber of Commerce and Trade of the Russian Federation, it is that authority which alone will arbitrate the matter and the finding of that arbitral Tribunal shall be final and obligatory for both the parties.
### Response:
0
### Explanation:
17. The respondent opposed the petition by filing a detailed reply and one of the principal submissions of thelearned Counsel for the respondent was that Clause 6.2 of the Agency Agreement dated 14.4.2000 provides that in case of dispute between the parties, the parties will resort to arbitration for resolution of their dispute and they will submit to Arbitration Court under the Chamber of Commerce and Trade of the Russian Federation.Therefore this Court has no jurisdiction to entertain this petition.In the present case, as per the Agency Agreement dated 14.4.2000, Clause 6.2 categorically states that if any dispute arises between the parties then the same shall be submitted to Arbitration Court under the Chamber of Commerce and Trade of the Russian Federation. Therefore there is a specific clause mentioned in the Agency Agreement as to which Court will have jurisdiction to try and dispose of the matter.21. In view of the specific provision specifying the jurisdiction of the Court to decide the matter, this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on particular Court to decide the matter then it automatically ousts the jurisdiction of other Court. In this agreement, the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved. In view of the specific arbitration clause conferring power on the Chamber of Commerce and Trade of the Russian Federation, it is that authority which alone will arbitrate the matter and the finding of that arbitral Tribunal shall be final and obligatory for both the parties.
|
Prabhakar Ramakrishna Jodh Vs. A. L. Pande And Another | confirmed in the service of the college :- (a) Without holding a full enquiry into the matter, the teacher concerned shall be given in writing a statement of charges against him and afforded every possible opportunity of defending himself. His previous service and character shall also be taken into consideration; (b) No decision for such termination of service, or reduction of pay shall have any effect unless passed by a majority of two- thirds of the members of the Governing Body; (c) At the request of the teacher concerned any difference or dispute either arising out of the contract, or, otherwise, shall be referred to a Tribunal of Arbitration consisting of the Vice-Chancellor, and two other persons appointed by the Executive Council of the University, one of whom shall possess a status not lower than that of a District Judge. The decision of this Tribunal shall be final and binding on both the parties." Clause 7 of the "College Code" states that all teachers of the colleges shall be appointed on a written contract in the form prescribed in Schedule A except in the case of teachers appointed temporarily for a period of one year or less. Para 9 of agreement mentioned in Sch. A provides as follows :- "9. After confirmation, the services of the party of the first part can be terminated only on the following grounds :- a. Wilful and persistant neglect of duty, b. Misconduct, c. Breach of any of the terms of contract, d. Physical or mental unfitness, e. Incompetence, f. Abolition of the posts Provided firstly, that the plea of incompetence shall not be used against the party of the first part after he has served the party of the second part for five years or more L4Sup./65-12 Provided, secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Saugar University."It is not disputed on behalf of the respondents that the "College Code" has been made by the University in exercise of statutory power conferred by s. 32 and under s. 6(6) of the Act. It is also conceded on behalf of the respondents that the "College Code" is intra vires of the powers of the University contained in s. 32 read with s. 6(6) of the Act. In our opinion, the provisions of Ordinance 20, otherwise called the "College Code have the force of law. It confers legal rights on the teachers of the affiliated colleges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship between the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the "College Code" constitute power of management. On the contrary we are of the view that the provisions of the "College Code" relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch. A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers service conditions and, as we have already pointed out, the provisions of the "College Code" in this regard are validly made by the University in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore, that the "College Code" creates legal rights in favour of teachers , of affiliated colleges and the view taken by the High Court is erroneous.It was urged on behalf of the appellant in the next place that there was violation of the procedure prescribed in Clause 8 (vi) (a) of the "College Code and the order of the Governing Body dated June 30, 1960 terminating the appellants services was illegal and ultra vires and must be quashed by grant of writ in the nature of certiorari. Counsel for the respondents contended that there was no violation of the Procedure prescribed under Clause 8(vi) (a) of the "College Code" and that the order of the Governing Body, dated June 30, 1960 was not defective in law. Since the question has not been investigated by the High Court we consider that it is necessary that this case should go back on remand to the High Court for deciding the question whether there was a violation of the procedure prescribed under Clause 8 (vi) (a) of the "College Code" and whether the order of the Governing Body, dated June 30, 1960 is consequently illegal and ultra vires and whether the appellant is entitled to the grant of a writ under Art. 226 of the Constitution. 5. We should like to add that Counsel for the respondent raised two preliminary objections in the course of argument. The argument was stressed in the first place that the appellant had an alternative remedy under Clause 8 (vi) (c) of the "College Code which provides that the aggrieved teacher may request for a reference of the dispute to a Tribunal of Arbitration consisting of the Vice-Chancellor and two other persons appointed by the Executive Council of the University. It was contended on behalf of the respondents in the second place that the Governing Body of the College was not a statutory body performing public duties and no writ in the nature of mandamus may, therefore, be issued to the Governing Body of the College. On behalf of the respon- dents it was conceded that these objections were not pressed before the High Court. We are, therefore, unable to entertain these preliminary arguments at this stage and they must be over-ruled. | 1[ds]Section 2 4(i) provides that the Executive Council shall admit colleges to the privileges of the University subject to the provisions of this Act and such conditions as may be prescribed in the Statutes. The "College Code" is an Ordinance made under the provisions of s. 32 of the Act read with s. 6(6) of the Act and Clause 8 of the Ordinance deals with conditions of service of teachers of affiliated colleges. Clause 8 (vi) of the "College Code" reads as follows "8. (vi) The Governing Body of the College shall not terminate the service or reduce the pay of any teacher confirmed in the service of the college :- (a) Without holding a full enquiry into the matter, the teacher concerned shall be given in writing a statement of charges against him and afforded every possible opportunity of defending himself. His previous service and character shall also be taken into consideration; (b) No decision for such termination of service, or reduction of pay shall have any effect unless passed by a majority of two- thirds of the members of the Governing Body; (c) At the request of the teacher concerned any difference or dispute either arising out of the contract, or, otherwise, shall be referred to a Tribunal of Arbitration consisting of the Vice-Chancellor, and two other persons appointed by the Executive Council of the University, one of whom shall possess a status not lower than that of a District Judge. The decision of this Tribunal shall be final and binding on both the parties." Clause 7 of the "College Code" states that all teachers of the colleges shall be appointed on a written contract in the form prescribed in Schedule A except in the case of teachers appointed temporarily for a period of one year or less. Para 9 of agreement mentioned in Sch. A provides as follows :- "9. After confirmation, the services of the party of the first part can be terminated only on the following grounds :- a. Wilful and persistant neglect of duty, b. Misconduct, c. Breach of any of the terms of contract, d. Physical or mental unfitness, e. Incompetence, f. Abolition of the posts Provided firstly, that the plea of incompetence shall not be used against the party of the first part after he has served the party of the second part for five years or more L4Sup./65-12 Provided, secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Saugar University."It is not disputed on behalf of the respondents that the "College Code" has been made by the University in exercise of statutory power conferred by s. 32 and under s. 6(6) of the Act. It is also conceded on behalf of the respondents that the "College Code" is intra vires of the powers of the University contained in s. 32 read with s. 6(6) of the Act. In our opinion, the provisions of Ordinance 20, otherwise called the "College Code have the force of law. It confers legal rights on the teachers of the affiliated colleges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship between the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the "College Code" constitute power of management. On the contrary we are of the view that the provisions of the "College Code" relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch. A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers service conditions and, as we have already pointed out, the provisions of the "College Code" in this regard are validly made by the University in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore, that the "College Code" creates legal rights in favour of teachers , of affiliated colleges and the view taken by the High Court is erroneous.It was urged on behalf of the appellant in the next place that there was violation of the procedure prescribed in Clause 8 (vi) (a) of the "College Code and the order of the Governing Body dated June 30, 1960 terminating the appellants services was illegal and ultra vires and must be quashed by grant of writ in the nature of certiorari. Counsel for the respondents contended that there was no violation of the Procedure prescribed under Clause 8(vi) (a) of the "College Code" and that the order of the Governing Body, dated June 30, 1960 was not defective in law. Since the question has not been investigated by the High Court we consider that it is necessary that this case should go back on remand to the High Court for deciding the question whether there was a violation of the procedure prescribed under Clause 8 (vi) (a) of the "College Code" and whether the order of the Governing Body, dated June 30, 1960 is consequently illegal and ultra vires and whether the appellant is entitled to the grant of a writ under Art. 226 of the ConstitutionWe should like to add that Counsel for the respondent raised two preliminary objections in the course of argument. The argument was stressed in the first place that the appellant had an alternative remedy under Clause 8 (vi) (c) of the "College Code which provides that the aggrieved teacher may request for a reference of the dispute to a Tribunal of Arbitration consisting of the Vice-Chancellor and two other persons appointed by the Executive Council of the University. It was contended on behalf of the respondents in the second place that the Governing Body of the College was not a statutory body performing public duties and no writ in the nature of mandamus may, therefore, be issued to the Governing Body of the College. On behalf of the respon- dents it was conceded that these objections were not pressed before the High Court. We are, therefore, unable to entertain these preliminary arguments at this stage and they must be over-ruled. | 1 | 2,446 | 1,247 | ### 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:
confirmed in the service of the college :- (a) Without holding a full enquiry into the matter, the teacher concerned shall be given in writing a statement of charges against him and afforded every possible opportunity of defending himself. His previous service and character shall also be taken into consideration; (b) No decision for such termination of service, or reduction of pay shall have any effect unless passed by a majority of two- thirds of the members of the Governing Body; (c) At the request of the teacher concerned any difference or dispute either arising out of the contract, or, otherwise, shall be referred to a Tribunal of Arbitration consisting of the Vice-Chancellor, and two other persons appointed by the Executive Council of the University, one of whom shall possess a status not lower than that of a District Judge. The decision of this Tribunal shall be final and binding on both the parties." Clause 7 of the "College Code" states that all teachers of the colleges shall be appointed on a written contract in the form prescribed in Schedule A except in the case of teachers appointed temporarily for a period of one year or less. Para 9 of agreement mentioned in Sch. A provides as follows :- "9. After confirmation, the services of the party of the first part can be terminated only on the following grounds :- a. Wilful and persistant neglect of duty, b. Misconduct, c. Breach of any of the terms of contract, d. Physical or mental unfitness, e. Incompetence, f. Abolition of the posts Provided firstly, that the plea of incompetence shall not be used against the party of the first part after he has served the party of the second part for five years or more L4Sup./65-12 Provided, secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Saugar University."It is not disputed on behalf of the respondents that the "College Code" has been made by the University in exercise of statutory power conferred by s. 32 and under s. 6(6) of the Act. It is also conceded on behalf of the respondents that the "College Code" is intra vires of the powers of the University contained in s. 32 read with s. 6(6) of the Act. In our opinion, the provisions of Ordinance 20, otherwise called the "College Code have the force of law. It confers legal rights on the teachers of the affiliated colleges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship between the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the "College Code" constitute power of management. On the contrary we are of the view that the provisions of the "College Code" relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch. A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers service conditions and, as we have already pointed out, the provisions of the "College Code" in this regard are validly made by the University in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore, that the "College Code" creates legal rights in favour of teachers , of affiliated colleges and the view taken by the High Court is erroneous.It was urged on behalf of the appellant in the next place that there was violation of the procedure prescribed in Clause 8 (vi) (a) of the "College Code and the order of the Governing Body dated June 30, 1960 terminating the appellants services was illegal and ultra vires and must be quashed by grant of writ in the nature of certiorari. Counsel for the respondents contended that there was no violation of the Procedure prescribed under Clause 8(vi) (a) of the "College Code" and that the order of the Governing Body, dated June 30, 1960 was not defective in law. Since the question has not been investigated by the High Court we consider that it is necessary that this case should go back on remand to the High Court for deciding the question whether there was a violation of the procedure prescribed under Clause 8 (vi) (a) of the "College Code" and whether the order of the Governing Body, dated June 30, 1960 is consequently illegal and ultra vires and whether the appellant is entitled to the grant of a writ under Art. 226 of the Constitution. 5. We should like to add that Counsel for the respondent raised two preliminary objections in the course of argument. The argument was stressed in the first place that the appellant had an alternative remedy under Clause 8 (vi) (c) of the "College Code which provides that the aggrieved teacher may request for a reference of the dispute to a Tribunal of Arbitration consisting of the Vice-Chancellor and two other persons appointed by the Executive Council of the University. It was contended on behalf of the respondents in the second place that the Governing Body of the College was not a statutory body performing public duties and no writ in the nature of mandamus may, therefore, be issued to the Governing Body of the College. On behalf of the respon- dents it was conceded that these objections were not pressed before the High Court. We are, therefore, unable to entertain these preliminary arguments at this stage and they must be over-ruled.
### Response:
1
### Explanation:
any teacher confirmed in the service of the college :- (a) Without holding a full enquiry into the matter, the teacher concerned shall be given in writing a statement of charges against him and afforded every possible opportunity of defending himself. His previous service and character shall also be taken into consideration; (b) No decision for such termination of service, or reduction of pay shall have any effect unless passed by a majority of two- thirds of the members of the Governing Body; (c) At the request of the teacher concerned any difference or dispute either arising out of the contract, or, otherwise, shall be referred to a Tribunal of Arbitration consisting of the Vice-Chancellor, and two other persons appointed by the Executive Council of the University, one of whom shall possess a status not lower than that of a District Judge. The decision of this Tribunal shall be final and binding on both the parties." Clause 7 of the "College Code" states that all teachers of the colleges shall be appointed on a written contract in the form prescribed in Schedule A except in the case of teachers appointed temporarily for a period of one year or less. Para 9 of agreement mentioned in Sch. A provides as follows :- "9. After confirmation, the services of the party of the first part can be terminated only on the following grounds :- a. Wilful and persistant neglect of duty, b. Misconduct, c. Breach of any of the terms of contract, d. Physical or mental unfitness, e. Incompetence, f. Abolition of the posts Provided firstly, that the plea of incompetence shall not be used against the party of the first part after he has served the party of the second part for five years or more L4Sup./65-12 Provided, secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Saugar University."It is not disputed on behalf of the respondents that the "College Code" has been made by the University in exercise of statutory power conferred by s. 32 and under s. 6(6) of the Act. It is also conceded on behalf of the respondents that the "College Code" is intra vires of the powers of the University contained in s. 32 read with s. 6(6) of the Act. In our opinion, the provisions of Ordinance 20, otherwise called the "College Code have the force of law. It confers legal rights on the teachers of the affiliated colleges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship between the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the "College Code" constitute power of management. On the contrary we are of the view that the provisions of the "College Code" relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch. A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers service conditions and, as we have already pointed out, the provisions of the "College Code" in this regard are validly made by the University in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore, that the "College Code" creates legal rights in favour of teachers , of affiliated colleges and the view taken by the High Court is erroneous.It was urged on behalf of the appellant in the next place that there was violation of the procedure prescribed in Clause 8 (vi) (a) of the "College Code and the order of the Governing Body dated June 30, 1960 terminating the appellants services was illegal and ultra vires and must be quashed by grant of writ in the nature of certiorari. Counsel for the respondents contended that there was no violation of the Procedure prescribed under Clause 8(vi) (a) of the "College Code" and that the order of the Governing Body, dated June 30, 1960 was not defective in law. Since the question has not been investigated by the High Court we consider that it is necessary that this case should go back on remand to the High Court for deciding the question whether there was a violation of the procedure prescribed under Clause 8 (vi) (a) of the "College Code" and whether the order of the Governing Body, dated June 30, 1960 is consequently illegal and ultra vires and whether the appellant is entitled to the grant of a writ under Art. 226 of the ConstitutionWe should like to add that Counsel for the respondent raised two preliminary objections in the course of argument. The argument was stressed in the first place that the appellant had an alternative remedy under Clause 8 (vi) (c) of the "College Code which provides that the aggrieved teacher may request for a reference of the dispute to a Tribunal of Arbitration consisting of the Vice-Chancellor and two other persons appointed by the Executive Council of the University. It was contended on behalf of the respondents in the second place that the Governing Body of the College was not a statutory body performing public duties and no writ in the nature of mandamus may, therefore, be issued to the Governing Body of the College. On behalf of the respon- dents it was conceded that these objections were not pressed before the High Court. We are, therefore, unable to entertain these preliminary arguments at this stage and they must be over-ruled.
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PRATAP MEHTA Vs. SUNIL GUPTA | must stand dismissed with costs.? 31. The above decision in no manner support the case of the appellant rather it reiterates that the High Court under Articles 226 and 227 can interfere with an arbitrary order passed by an authority. The next judgment relied by the appellant is Constitution Bench judgment of this Court in Syed Yakoob (supra). This Court had elaborately considered the scope of Article 226 of the Constitution in the aforesaid case. This Court held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals. It was further held that jurisdiction of High Court under Article 226 to issue a writ of certiorari is a supervisory jurisdiction and the High Court exercising it is not entitled to act as an appellate court. 32. The findings of the fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. There cannot be any dispute to the above propositions laid down by the Constitution Bench of this Court. However, in the same judgment, in paragraph 8, following was laid down by this Court:- ?8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record……………………..? 33. Applying the above proposition in the present case, it was clear that High Court had referred to statutory provisions of Bar Council of India Rules and came to the conclusion that there was no notice of agenda for holding election of the State Bar Council member in the Bar Council of India for meeting dated 02.08.2014. An obvious error of law was committed by Bar Council of India in dismissing the election petition of Shri Sunil Gupta. The High Court was right in exercise of its certiorari jurisdiction to set aside the erroneous order of the Bar Council of India. The High Court was, thus, well within its jurisdiction in deciding the writ petition and submission of the learned counsel for the appellant cannot be accepted that the High Court exceeded its jurisdiction in deciding the writ petition. 34. Learned counsel for the appellant has also relied on K. Narasimhiah Vs. H.C. Singri Gowda and others, AIR 1966 SCC 330. In the above case, this Court held that three days clear notice to Councillors for holding a special general meeting is not mandatory. What was held that period of notice in the facts of that case was not mandatory. Present is not a case where any one has complained that there was no notice for meeting to be held on 02.08.2014. In the above case also, the notice was received by members, some of them have received three days notice, some of them had received notice of less than three days. In the above circumstances, this Court held that provision of three days notice was only directory and not mandatory. The said judgment has no application in the present case. 35. Another judgment relied by the appellant is P. Kasilingam Vs. P.S.G. College of Technology, AIR 1981 SC 789 . In the said case, this Court was dealing with a question regarding effectiveness of resignation and consequence of withdrawal of resignation before the effective date. The said case has no application in the present case. Last case relied by the appellant is V.S. Krishnan and others Vs. Westfort Hi-tech Hospital Ltd. and Others, (2008) 3 SCC 363. In the above case, the Court held that when there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. In paragraph 29, following has been held:- ?29. Section 172 as well as Section 53 emphasised ?giving notice?. We have already adverted to how notice should be given for AGM as per Section 172(2) and Sections 53(1) and (2) of the Act. In view of the fact that the Company has placed materials to substantiate that notices, in terms of the above provisions, were given, as rightly pointed out by learned Senior Counsel for the contesting respondents, statutory presumption under Section 53 will apply though the said act is rebuttable. In view of the fact that there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. The High Court, on verification of those materials, has concluded that ?postal receipt with post office seal was produced to show that notice was sent to all shareholders by certificate of posting in the correct address as per the report?.? | 0[ds]18. A conjoint reading of the aforesaid Rules indicate that for holding election of a member of Bar Council of India to be elected by State Bar Council, notice and agenda has to be issued by the Secretary of the State Bar Council, which is a statutory requirement. There is no issue between the parties regarding the fact that agenda dated 09.06.2014 was issued for the meeting of the members of the State Bar Council on 29.06.2014 including the agenda for electing a member from the State Bar Council to the Bar Council of India as noticed above. Minutes of the meeting dated 29.06.2014 has been brought on the record in Civil Appeal Nos. 8174-8177 of 2018 as Annexure A4. A perusal of the proceeding indicates that all 25 elected members and learned Advocate General, who is Ex-officio member was present and meeting started at 11.00 am and by 12.00 noon, the election of the Chairman was completed. The Minutes record that for greeting the newly elected Chairman and to see-off learned Advocate General, the proceeding of the meeting were stayed/adjourned and thereafter again the meeting started in presence of members for election of rest of the office bearers and members of the Committees.It is clear from the aforesaid that notices dated 16.07.2014 and 19.07.2014 were issued not for convening any adjourned meeting rather special meeting was convened to consider two set of letters given by members of the Council requesting for convening a meeting for holding elections of office bearers and the members of different Committees including representative to Bar Council of India and for considering no confidence motion against the Chairman of the State Bar Council. In the notice dated 16.07.2014 as well as notice dated 19.07.2014, the subject of special meeting was thus for disposal of letters received by the members of the Council. It is to be noted that the minutes of the proceeding dated 29.06.2014 has recorded and signed by Chairman containing the election of not only the Chairman rather election of other office bearers and different representatives, which is clear from the proceedings brought on the record by Bar Council of India itself as Annexure A4. It is a well established principle that minutes of the proceeding signed by the Chairman are prima facie evidence of proceeding and decisions recorded therein are deemed to be valid until contrary is proved.Thus, the letters issued by the members on 29.06.2014 and 13.07.2014 raised a dispute containing allegations disputing minutes of the proceeding of the meeting dated 29.06.2014. Thus, it was a disputed matter as to what actually happened on 29.06.2014, i.e. as to whether the election of other office bearers and representatives were validly completed on 29.06.2014 or after the election of the Chairman, the meeting was adjourned. This dispute was to be resolved in the special meeting dated 02.08.2014, which was clearly indicated by notice dated 16.07.2014 and 19.07.2014 as indicated above. The issue of agenda alongwith the notice is requirement of a valid meeting and it is only in context of adjourned meeting that no fresh agenda need to be issued. The notices dated 16.07.2014 and 19.07.2014 having not contained any agenda and the meeting also not being described as adjourned meeting, issuance of agenda for the meeting was necessary. Issuance of an agenda, if any election was to be conducted on 02.08.2014 was necessary.We, thus, do not find any infirmity in the view of the High Court - both of learned Single Judge as well as the Division Bench that no election could have been conducted on 02.08.2014 for electing member to the Bar Council of India from the State Bar Council. Further, the election of the member to the Bar Council of India is statutorily regulated by Bar Council of India Rules and Rule 7 require notice by the Secretary of the State Council fixing a date for the election of the member to the Council. The notices dated 16.07.2014 and 19.07.2014 cannot be read as notice as required under Rule 7 for holding election of a member to the Bar Council of India from the State Bar Council, hence, the conduct of election of a member as a representative from State Bar Council to Bar Council of India in the meeting dated 02.08.2014 cannot be said to be in conformity with Rule 7 of Bar Council of India Rules. The High Court was, thus, clearly right in its view that election of Shri Pratap Mehta on 02.08.2014 as member of the Bar Council of India was not a valid election. The learned Single Judge having already taken a view that election dated 29.06.2014 electing Shri Sunil Gupta as the representative to the Bar Council of India was not a valid election, which issue was not, however, agitated either by the State Council or by Shri Sunil Gupta, there is no need to ponder over the above election. Both the elections dated 29.06.2014 and 02.08.2014 to elect a member in the Bar Council of India having been held to be invalid, the High Court was right in issuing directions for conducting a fresh election to elect a member in the Bar Council of India, which was necessary and just.Applying the above proposition in the present case, it was clear that High Court had referred to statutory provisions of Bar Council of India Rules and came to the conclusion that there was no notice of agenda for holding election of the State Bar Council member in the Bar Council of India for meeting dated 02.08.2014. An obvious error of law was committed by Bar Council of India in dismissing the election petition of Shri Sunil Gupta. The High Court was right in exercise of its certiorari jurisdiction to set aside the erroneous order of the Bar Council of India. The High Court was, thus, well within its jurisdiction in deciding the writ petition and submission of the learned counsel for the appellant cannot be accepted that the High Court exceeded its jurisdiction in deciding the writ petition.Learned counsel for the appellant has also relied on K. Narasimhiah Vs. H.C. Singri Gowda and others, AIR 1966 SCC 330. In the above case, this Court held that three days clear notice to Councillors for holding a special general meeting is not mandatory. What was held that period of notice in the facts of that case was not mandatory. Present is not a case where any one has complained that there was no notice for meeting to be held on 02.08.2014. In the above case also, the notice was received by members, some of them have received three days notice, some of them had received notice of less than three days. In the above circumstances, this Court held that provision of three days notice was only directory and not mandatory. The said judgment has no application in the present case. | 0 | 8,087 | 1,217 | ### Instruction:
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must stand dismissed with costs.? 31. The above decision in no manner support the case of the appellant rather it reiterates that the High Court under Articles 226 and 227 can interfere with an arbitrary order passed by an authority. The next judgment relied by the appellant is Constitution Bench judgment of this Court in Syed Yakoob (supra). This Court had elaborately considered the scope of Article 226 of the Constitution in the aforesaid case. This Court held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals. It was further held that jurisdiction of High Court under Article 226 to issue a writ of certiorari is a supervisory jurisdiction and the High Court exercising it is not entitled to act as an appellate court. 32. The findings of the fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. There cannot be any dispute to the above propositions laid down by the Constitution Bench of this Court. However, in the same judgment, in paragraph 8, following was laid down by this Court:- ?8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record……………………..? 33. Applying the above proposition in the present case, it was clear that High Court had referred to statutory provisions of Bar Council of India Rules and came to the conclusion that there was no notice of agenda for holding election of the State Bar Council member in the Bar Council of India for meeting dated 02.08.2014. An obvious error of law was committed by Bar Council of India in dismissing the election petition of Shri Sunil Gupta. The High Court was right in exercise of its certiorari jurisdiction to set aside the erroneous order of the Bar Council of India. The High Court was, thus, well within its jurisdiction in deciding the writ petition and submission of the learned counsel for the appellant cannot be accepted that the High Court exceeded its jurisdiction in deciding the writ petition. 34. Learned counsel for the appellant has also relied on K. Narasimhiah Vs. H.C. Singri Gowda and others, AIR 1966 SCC 330. In the above case, this Court held that three days clear notice to Councillors for holding a special general meeting is not mandatory. What was held that period of notice in the facts of that case was not mandatory. Present is not a case where any one has complained that there was no notice for meeting to be held on 02.08.2014. In the above case also, the notice was received by members, some of them have received three days notice, some of them had received notice of less than three days. In the above circumstances, this Court held that provision of three days notice was only directory and not mandatory. The said judgment has no application in the present case. 35. Another judgment relied by the appellant is P. Kasilingam Vs. P.S.G. College of Technology, AIR 1981 SC 789 . In the said case, this Court was dealing with a question regarding effectiveness of resignation and consequence of withdrawal of resignation before the effective date. The said case has no application in the present case. Last case relied by the appellant is V.S. Krishnan and others Vs. Westfort Hi-tech Hospital Ltd. and Others, (2008) 3 SCC 363. In the above case, the Court held that when there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. In paragraph 29, following has been held:- ?29. Section 172 as well as Section 53 emphasised ?giving notice?. We have already adverted to how notice should be given for AGM as per Section 172(2) and Sections 53(1) and (2) of the Act. In view of the fact that the Company has placed materials to substantiate that notices, in terms of the above provisions, were given, as rightly pointed out by learned Senior Counsel for the contesting respondents, statutory presumption under Section 53 will apply though the said act is rebuttable. In view of the fact that there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. The High Court, on verification of those materials, has concluded that ?postal receipt with post office seal was produced to show that notice was sent to all shareholders by certificate of posting in the correct address as per the report?.?
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at 11.00 am and by 12.00 noon, the election of the Chairman was completed. The Minutes record that for greeting the newly elected Chairman and to see-off learned Advocate General, the proceeding of the meeting were stayed/adjourned and thereafter again the meeting started in presence of members for election of rest of the office bearers and members of the Committees.It is clear from the aforesaid that notices dated 16.07.2014 and 19.07.2014 were issued not for convening any adjourned meeting rather special meeting was convened to consider two set of letters given by members of the Council requesting for convening a meeting for holding elections of office bearers and the members of different Committees including representative to Bar Council of India and for considering no confidence motion against the Chairman of the State Bar Council. In the notice dated 16.07.2014 as well as notice dated 19.07.2014, the subject of special meeting was thus for disposal of letters received by the members of the Council. It is to be noted that the minutes of the proceeding dated 29.06.2014 has recorded and signed by Chairman containing the election of not only the Chairman rather election of other office bearers and different representatives, which is clear from the proceedings brought on the record by Bar Council of India itself as Annexure A4. It is a well established principle that minutes of the proceeding signed by the Chairman are prima facie evidence of proceeding and decisions recorded therein are deemed to be valid until contrary is proved.Thus, the letters issued by the members on 29.06.2014 and 13.07.2014 raised a dispute containing allegations disputing minutes of the proceeding of the meeting dated 29.06.2014. Thus, it was a disputed matter as to what actually happened on 29.06.2014, i.e. as to whether the election of other office bearers and representatives were validly completed on 29.06.2014 or after the election of the Chairman, the meeting was adjourned. This dispute was to be resolved in the special meeting dated 02.08.2014, which was clearly indicated by notice dated 16.07.2014 and 19.07.2014 as indicated above. The issue of agenda alongwith the notice is requirement of a valid meeting and it is only in context of adjourned meeting that no fresh agenda need to be issued. The notices dated 16.07.2014 and 19.07.2014 having not contained any agenda and the meeting also not being described as adjourned meeting, issuance of agenda for the meeting was necessary. Issuance of an agenda, if any election was to be conducted on 02.08.2014 was necessary.We, thus, do not find any infirmity in the view of the High Court - both of learned Single Judge as well as the Division Bench that no election could have been conducted on 02.08.2014 for electing member to the Bar Council of India from the State Bar Council. Further, the election of the member to the Bar Council of India is statutorily regulated by Bar Council of India Rules and Rule 7 require notice by the Secretary of the State Council fixing a date for the election of the member to the Council. The notices dated 16.07.2014 and 19.07.2014 cannot be read as notice as required under Rule 7 for holding election of a member to the Bar Council of India from the State Bar Council, hence, the conduct of election of a member as a representative from State Bar Council to Bar Council of India in the meeting dated 02.08.2014 cannot be said to be in conformity with Rule 7 of Bar Council of India Rules. The High Court was, thus, clearly right in its view that election of Shri Pratap Mehta on 02.08.2014 as member of the Bar Council of India was not a valid election. The learned Single Judge having already taken a view that election dated 29.06.2014 electing Shri Sunil Gupta as the representative to the Bar Council of India was not a valid election, which issue was not, however, agitated either by the State Council or by Shri Sunil Gupta, there is no need to ponder over the above election. Both the elections dated 29.06.2014 and 02.08.2014 to elect a member in the Bar Council of India having been held to be invalid, the High Court was right in issuing directions for conducting a fresh election to elect a member in the Bar Council of India, which was necessary and just.Applying the above proposition in the present case, it was clear that High Court had referred to statutory provisions of Bar Council of India Rules and came to the conclusion that there was no notice of agenda for holding election of the State Bar Council member in the Bar Council of India for meeting dated 02.08.2014. An obvious error of law was committed by Bar Council of India in dismissing the election petition of Shri Sunil Gupta. The High Court was right in exercise of its certiorari jurisdiction to set aside the erroneous order of the Bar Council of India. The High Court was, thus, well within its jurisdiction in deciding the writ petition and submission of the learned counsel for the appellant cannot be accepted that the High Court exceeded its jurisdiction in deciding the writ petition.Learned counsel for the appellant has also relied on K. Narasimhiah Vs. H.C. Singri Gowda and others, AIR 1966 SCC 330. In the above case, this Court held that three days clear notice to Councillors for holding a special general meeting is not mandatory. What was held that period of notice in the facts of that case was not mandatory. Present is not a case where any one has complained that there was no notice for meeting to be held on 02.08.2014. In the above case also, the notice was received by members, some of them have received three days notice, some of them had received notice of less than three days. In the above circumstances, this Court held that provision of three days notice was only directory and not mandatory. The said judgment has no application in the present case.
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Workmen of Jessop and Company Limited Vs. Jessop and Company, Limited, and Others | up to Rs. 50 and those drawing wages between Rs. 51 and Rs. 100. It fixed dearness allowance for the first category of staff at Rs. 53 and for the second at Rs. 63, i.e., and Rs. 10 more, which was in accord with the third engineering tribunal. Its final decision was that there was no reason to give the Bengal Chamber of Commerce dearness allowance to the subordinate staff at the head office. It ordered that the subordinate staff at the factory should continue to get the present dearness allowance as fixed in the third engineering award, and as for the subordinate staff at the head office it fixed Rs. 53 for those drawing up to Rs. 50 per mensem and Rs. 63 for those drawing wages between Rs. 51 and Rs. 100 per mensem. The tribunal has in our opinion gone into the question of dearness allowance with care and we see no reason to disagree with the reasons given by it for fixing the dearness allowance as it did. Finally the tribunal ordered that the new dearness allowance should come into force from 1 January 1960. The contention under this head must there fore fail.6. Regarding (3) - Overtime allowance. - Coming now to overtime, the contention of the appellants is that they should have been awarded overtime at the rate of ordinary wages, i.e., basic pay and dearness allowance, while the tribunal has awarded one and a half times the basic rate only. It is, however, usual to give overtime allowance on the basis of ordinary rate of wages which means basic wages plus dearness allowance (see S.59 of the Factories Act, no. 63 of 1948, and S.33 of the Mines Act, No. 35 of 1952). We think that the same system of allowing overtime at one and a half times the ordinary rate of wages, i.e., basic wages plus dearness allowance, should be followed for the head office also to bring it into line with the general pattern of overtime allowance. We therefore accept the contention and allow overtime allowance at one and a half times the ordinary rate of wages, i.e. basic wages plus dearness allowance., for the workmen at the head office.7. Regarding (4) - Retiring age. - The tribunal has rejected the demand for increasing the retirement age from 55 to 65 as claimed by the appellants. The reason given by the tribunal for this decision is that"the wage structure, the retiring benefits and the climate of the place, the prevailing system in other concerns of similar nature, all go to support that the age of retirement should not be increased."8. We feel however that the time has now come for increasing the age of retirement in the case of clerical staff and the subordinate staff. The question was considered by this court in Guest, Keen, Williams (private), Ltd. v. P. J. Sterling and others [1959 - II L.L.J. 405] and the considerations to be taken into account in fixing the date of retirement were there indicated. Bearing those considerations in mind we are of opinion that age of retirement for clerical staff and subordinate staff should be increased as a first step to 58. We do not think the wage-structure, the retiring benefits or the climate of that region is such that the age of retirement must be kept at 55; but taking into account the prevailing system in similar concerns to which the tribunal has referred we think that a beginning should be made to increase the age of retirement for clerical staff and subordinate staff other than those who are workers under the Factories Act to 58. We therefore accept this contention to this extent that the age of retirement for clerical staff and subordinate staff other than those who are workers under the Factories Act shall be raised to 58. This part of the decision will come into force from the date of this judgment.Regarding (5) - Gratuity. - As to gratuity scheme, the tribunal thought that it was not feasible at that stage to introduce a gratuity scheme in this company. We are however told that since then the company has introduced a gratuity scheme. Learned counsel for the appellants wants to urge that some features of the gratuity scheme introduced by the company require revision. That is however a matter which cannot be gone into in the present reference. In the circumstances, as the gratuity scheme has since been introduced. It is unnecessary to go into the matter any further.9. Lastly, we come to the question of the date from which the award should be introduced. The tribunal fixed this date as 1 January, 1960. The appellants claim that the award should have been given effect to at least from the date of reference which was made on 28 October, 1957. This Court generally does not interfere with the orders of the tribunal in the matter of fixing the date from which the award should come into force as that is a question which is mainly within the discretion of the tribunal. It is however urged on behalf of the appellants that there was more than two years delay between the date of reference and the award of the tribunal and that this was due to the action of the respondent-company and therefore the tribunal should have fixed on earlier date from which the award should come into force. We do not think that this is a case where there was any deliberate action on the part of the respondent-company to delay the decision of the reference, though it appears that at one stage the company had moved an application under Art. 226 of the Constitution before the High Court which resulted in the stay of proceedings for about six months. That in our opinion is not sufficient reason for us to differ from the tribunal as to the date from which the award should come into force. In the circumstance this contention must also fail. | 1[ds]4. Regarding (1)Grades of payed that wages including wagescales are fixed onbasis, and one of the reasons behind this principle is that concerns of more or less the same standing in the same industry should have as nearly as possible same wages so that they might stand on a par with one another in the matter of competition. Otherwise, if disparate rates of wages are fixed in a particular concern, which are much higher than the prevailing rates of wages in concerns of similar standing in the same industry, it will be put at a disadvantage when it comes to compete in the market in the sale of its product. It is for this reason that when scales of pay are being fixed that tribunals look at what are called comparable concerns in framingWe are therefore of opinion that the tribunal was right in refusing to treat the four concerns on theof which the appellants relied as comparable concerns for fixing theny. As we have already pointed out, three of these concerns have nothing to do with engineering industry while the fourth, namely, Volkart Brothers, Ltd., is also not an engineering concern as such, though it has some engineering business. We are further of opinion that the tribunal was right in taking into account for purposes of comparison the scales of pay fixed by the third engineering tribunal in West Bengal, which dealt with the major engineering concerns in that region. In these circumstances we see no reason to differ from the tribunal in the matter of fixation of scales of wages in theAs the award shows, these scales have been fixed after properly taking into account the scales fixed by the third engineering tribunal. It may be added that there were three engineering tribunals which fixed scales for the major engineering concerns in the region. The tribunals has taken into account the scales fixed by the three engineering tribunals in fixing the scales in theing now to the dearness allowance for the subordinate staff, the claim of the appellants was that the subordinate staff should also be paid dearness allowance on the scale of the Bengal Chamber of Commerce dearness allowance. That scale is based on the cost of living index prepared by the periodical Capital for clerical staff and so far as the subordinate staff is concerned, there was a flat rate for it even in that scale. The tribunal was of the view that there was no reason why the Bengal Chamber of Commerce dearness allowance scale which is meant for clerical staff should be introduced in the case of subordinate staff at the head office. The tribunal again relied upon the awards of the three engineering tribunals and found that the first engineering tribunal had fixed the dearness allowance for those drawing wages up to Rs. 50 at Rs. 25. This was gradually increased by the second engineering tribunal and finally was fixed at Rs. 36 by the third engineering tribunal. But the tribunal found that the scale of dearness allowance for the head office staff remained constant at Rs. 42. It therefore ordered that the head office staff should get further sum of Rs. 11 as dearness allowance as that was the amount by which the dearness allowance for the factory staff had been raised during this period. It also held that as in the case of the engineering tribunal, the subordinate staff drawing up to Rs. 100 which was till then treated as one class should be divided into two classes, i.e. those drawing up to Rs. 50 and those drawing wages between Rs. 51 and Rs. 100. It fixed dearness allowance for the first category of staff at Rs. 53 and for the second at Rs. 63, i.e., and Rs. 10 more, which was in accord with the third engineering tribunal. Its final decision was that there was no reason to give the Bengal Chamber of Commerce dearness allowance to the subordinate staff at the head office. It ordered that the subordinate staff at the factory should continue to get the present dearness allowance as fixed in the third engineering award, and as for the subordinate staff at the head office it fixed Rs. 53 for those drawing up to Rs. 50 per mensem and Rs. 63 for those drawing wages between Rs. 51 and Rs. 100 per mensem. The tribunal has in our opinion gone into the question of dearness allowance with care and we see no reason to disagree with the reasons given by it for fixing the dearness allowance as it did. Finally the tribunal ordered that the new dearness allowance should come into force from 1 January 1960. The contention under this head must there fore fail.6. Regarding (3)ng now to overtime, the contention of the appellants is that they should have been awarded overtime at the rate of ordinary wages, i.e., basic pay and dearness allowance, while the tribunal has awarded one and a half times the basic rate only. It is, however, usual to give overtime allowance on the basis of ordinary rate of wages which means basic wages plus dearness allowance (see S.59 of the Factories Act, no. 63 of 1948, and S.33 of the Mines Act, No. 35 of 1952). We think that the same system of allowing overtime at one and a half times the ordinary rate of wages, i.e., basic wages plus dearness allowance, should be followed for the head office also to bring it into line with the general pattern of overtime allowance. We therefore accept the contention and allow overtime allowance at one and a half times the ordinary rate of wages, i.e. basic wages plus dearness allowance., for the workmen at the head office.We feel however that the time has now come for increasing the age of retirement in the case of clerical staff and the subordinate staff. The question was considered by this court in Guest, Keen, Williams (private), Ltd. v. P. J. Sterling and others [1959II L.L.J. 405] and the considerations to be taken into account in fixing the date of retirement were there indicated. Bearing those considerations in mind we are of opinion that age of retirement for clerical staff and subordinate staff should be increased as a first step to 58. We do not think thethe retiring benefits or the climate of that region is such that the age of retirement must be kept at 55; but taking into account the prevailing system in similar concerns to which the tribunal has referred we think that a beginning should be made to increase the age of retirement for clerical staff and subordinate staff other than those who are workers under the Factories Act to 58. We therefore accept this contention to this extent that the age of retirement for clerical staff and subordinate staff other than those who are workers under the Factories Act shall be raised to 58. This part of the decision will come into force from the date of this judgment.Regarding (5)As to gratuity scheme, the tribunal thought that it was not feasible at that stage to introduce a gratuity scheme in this company. We are however told that since then the company has introduced a gratuity scheme.Learned counsel for the appellants wants to urge that some features of the gratuity scheme introduced by the company require revision.That is however a matter which cannot be gone into in the present reference. In the circumstances, as the gratuity scheme has since been introduced. It is unnecessary to go into the matter any further.9. Lastly, we come to the question of the date from which the award should be introduced. The tribunal fixed this date as 1 January, 1960. The appellants claim that the award should have been given effect to at least from the date of reference which was made on 28 October, 1957. This Court generally does not interfere with the orders of the tribunal in the matter of fixing the date from which the award should come into force as that is a question which is mainly within the discretion of the tribunal. It is however urged on behalf of the appellants that there was more than two years delay between the date of reference and the award of the tribunal and that this was due to the action of theand therefore the tribunal should have fixed on earlier date from which the award should come into force. We do not think that this is a case where there was any deliberate action on the part of theto delay the decision of the reference, though it appears that at one stage the company had moved an application under Art. 226 of the Constitution before the High Court which resulted in the stay of proceedings for about six months. That in our opinion is not sufficient reason for us to differ from the tribunal as to the date from which the award should come into force. In the circumstance this contention must also fail. | 1 | 2,352 | 1,630 | ### 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:
up to Rs. 50 and those drawing wages between Rs. 51 and Rs. 100. It fixed dearness allowance for the first category of staff at Rs. 53 and for the second at Rs. 63, i.e., and Rs. 10 more, which was in accord with the third engineering tribunal. Its final decision was that there was no reason to give the Bengal Chamber of Commerce dearness allowance to the subordinate staff at the head office. It ordered that the subordinate staff at the factory should continue to get the present dearness allowance as fixed in the third engineering award, and as for the subordinate staff at the head office it fixed Rs. 53 for those drawing up to Rs. 50 per mensem and Rs. 63 for those drawing wages between Rs. 51 and Rs. 100 per mensem. The tribunal has in our opinion gone into the question of dearness allowance with care and we see no reason to disagree with the reasons given by it for fixing the dearness allowance as it did. Finally the tribunal ordered that the new dearness allowance should come into force from 1 January 1960. The contention under this head must there fore fail.6. Regarding (3) - Overtime allowance. - Coming now to overtime, the contention of the appellants is that they should have been awarded overtime at the rate of ordinary wages, i.e., basic pay and dearness allowance, while the tribunal has awarded one and a half times the basic rate only. It is, however, usual to give overtime allowance on the basis of ordinary rate of wages which means basic wages plus dearness allowance (see S.59 of the Factories Act, no. 63 of 1948, and S.33 of the Mines Act, No. 35 of 1952). We think that the same system of allowing overtime at one and a half times the ordinary rate of wages, i.e., basic wages plus dearness allowance, should be followed for the head office also to bring it into line with the general pattern of overtime allowance. We therefore accept the contention and allow overtime allowance at one and a half times the ordinary rate of wages, i.e. basic wages plus dearness allowance., for the workmen at the head office.7. Regarding (4) - Retiring age. - The tribunal has rejected the demand for increasing the retirement age from 55 to 65 as claimed by the appellants. The reason given by the tribunal for this decision is that"the wage structure, the retiring benefits and the climate of the place, the prevailing system in other concerns of similar nature, all go to support that the age of retirement should not be increased."8. We feel however that the time has now come for increasing the age of retirement in the case of clerical staff and the subordinate staff. The question was considered by this court in Guest, Keen, Williams (private), Ltd. v. P. J. Sterling and others [1959 - II L.L.J. 405] and the considerations to be taken into account in fixing the date of retirement were there indicated. Bearing those considerations in mind we are of opinion that age of retirement for clerical staff and subordinate staff should be increased as a first step to 58. We do not think the wage-structure, the retiring benefits or the climate of that region is such that the age of retirement must be kept at 55; but taking into account the prevailing system in similar concerns to which the tribunal has referred we think that a beginning should be made to increase the age of retirement for clerical staff and subordinate staff other than those who are workers under the Factories Act to 58. We therefore accept this contention to this extent that the age of retirement for clerical staff and subordinate staff other than those who are workers under the Factories Act shall be raised to 58. This part of the decision will come into force from the date of this judgment.Regarding (5) - Gratuity. - As to gratuity scheme, the tribunal thought that it was not feasible at that stage to introduce a gratuity scheme in this company. We are however told that since then the company has introduced a gratuity scheme. Learned counsel for the appellants wants to urge that some features of the gratuity scheme introduced by the company require revision. That is however a matter which cannot be gone into in the present reference. In the circumstances, as the gratuity scheme has since been introduced. It is unnecessary to go into the matter any further.9. Lastly, we come to the question of the date from which the award should be introduced. The tribunal fixed this date as 1 January, 1960. The appellants claim that the award should have been given effect to at least from the date of reference which was made on 28 October, 1957. This Court generally does not interfere with the orders of the tribunal in the matter of fixing the date from which the award should come into force as that is a question which is mainly within the discretion of the tribunal. It is however urged on behalf of the appellants that there was more than two years delay between the date of reference and the award of the tribunal and that this was due to the action of the respondent-company and therefore the tribunal should have fixed on earlier date from which the award should come into force. We do not think that this is a case where there was any deliberate action on the part of the respondent-company to delay the decision of the reference, though it appears that at one stage the company had moved an application under Art. 226 of the Constitution before the High Court which resulted in the stay of proceedings for about six months. That in our opinion is not sufficient reason for us to differ from the tribunal as to the date from which the award should come into force. In the circumstance this contention must also fail.
### Response:
1
### Explanation:
the scale of dearness allowance for the head office staff remained constant at Rs. 42. It therefore ordered that the head office staff should get further sum of Rs. 11 as dearness allowance as that was the amount by which the dearness allowance for the factory staff had been raised during this period. It also held that as in the case of the engineering tribunal, the subordinate staff drawing up to Rs. 100 which was till then treated as one class should be divided into two classes, i.e. those drawing up to Rs. 50 and those drawing wages between Rs. 51 and Rs. 100. It fixed dearness allowance for the first category of staff at Rs. 53 and for the second at Rs. 63, i.e., and Rs. 10 more, which was in accord with the third engineering tribunal. Its final decision was that there was no reason to give the Bengal Chamber of Commerce dearness allowance to the subordinate staff at the head office. It ordered that the subordinate staff at the factory should continue to get the present dearness allowance as fixed in the third engineering award, and as for the subordinate staff at the head office it fixed Rs. 53 for those drawing up to Rs. 50 per mensem and Rs. 63 for those drawing wages between Rs. 51 and Rs. 100 per mensem. The tribunal has in our opinion gone into the question of dearness allowance with care and we see no reason to disagree with the reasons given by it for fixing the dearness allowance as it did. Finally the tribunal ordered that the new dearness allowance should come into force from 1 January 1960. The contention under this head must there fore fail.6. Regarding (3)ng now to overtime, the contention of the appellants is that they should have been awarded overtime at the rate of ordinary wages, i.e., basic pay and dearness allowance, while the tribunal has awarded one and a half times the basic rate only. It is, however, usual to give overtime allowance on the basis of ordinary rate of wages which means basic wages plus dearness allowance (see S.59 of the Factories Act, no. 63 of 1948, and S.33 of the Mines Act, No. 35 of 1952). We think that the same system of allowing overtime at one and a half times the ordinary rate of wages, i.e., basic wages plus dearness allowance, should be followed for the head office also to bring it into line with the general pattern of overtime allowance. We therefore accept the contention and allow overtime allowance at one and a half times the ordinary rate of wages, i.e. basic wages plus dearness allowance., for the workmen at the head office.We feel however that the time has now come for increasing the age of retirement in the case of clerical staff and the subordinate staff. The question was considered by this court in Guest, Keen, Williams (private), Ltd. v. P. J. Sterling and others [1959II L.L.J. 405] and the considerations to be taken into account in fixing the date of retirement were there indicated. Bearing those considerations in mind we are of opinion that age of retirement for clerical staff and subordinate staff should be increased as a first step to 58. We do not think thethe retiring benefits or the climate of that region is such that the age of retirement must be kept at 55; but taking into account the prevailing system in similar concerns to which the tribunal has referred we think that a beginning should be made to increase the age of retirement for clerical staff and subordinate staff other than those who are workers under the Factories Act to 58. We therefore accept this contention to this extent that the age of retirement for clerical staff and subordinate staff other than those who are workers under the Factories Act shall be raised to 58. This part of the decision will come into force from the date of this judgment.Regarding (5)As to gratuity scheme, the tribunal thought that it was not feasible at that stage to introduce a gratuity scheme in this company. We are however told that since then the company has introduced a gratuity scheme.Learned counsel for the appellants wants to urge that some features of the gratuity scheme introduced by the company require revision.That is however a matter which cannot be gone into in the present reference. In the circumstances, as the gratuity scheme has since been introduced. It is unnecessary to go into the matter any further.9. Lastly, we come to the question of the date from which the award should be introduced. The tribunal fixed this date as 1 January, 1960. The appellants claim that the award should have been given effect to at least from the date of reference which was made on 28 October, 1957. This Court generally does not interfere with the orders of the tribunal in the matter of fixing the date from which the award should come into force as that is a question which is mainly within the discretion of the tribunal. It is however urged on behalf of the appellants that there was more than two years delay between the date of reference and the award of the tribunal and that this was due to the action of theand therefore the tribunal should have fixed on earlier date from which the award should come into force. We do not think that this is a case where there was any deliberate action on the part of theto delay the decision of the reference, though it appears that at one stage the company had moved an application under Art. 226 of the Constitution before the High Court which resulted in the stay of proceedings for about six months. That in our opinion is not sufficient reason for us to differ from the tribunal as to the date from which the award should come into force. In the circumstance this contention must also fail.
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Atcom Technologies Limited Vs. Y.A. Chunawala and Co. and Ors | that order was affirmed by the Division Bench (and now even by this Court). While dealing with the instant matter, the High Court failed to consider those orders passed by the co-ordinate Benches.12. We find force and due merit in the aforesaid submissions of the learned Counsel for the Appellant.13. We shall proceed on the basis that summons in Suit No. 4870 of 1999 were served only in the year 2009. In this behalf, it may be stated that in this suit, unconditional leave to defend was granted by the learned Single Judge on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the Court, Respondents were appearing having knowledge about the Suit No. 4870 of 1999 as well. Obviously, this leave to defend was granted after the Respondents had put in appearance and filed application for grant of leave to defend. Thus, summons in the suit were served upon the Respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter, Writ of Summons were not served again upon the Respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the Respondents to show as to in what manner they were prevented from filing the written statement.14. It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the Defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. Proviso thereto enables the Court to extend the period upto ninety days from the date of service of summons for sufficient reasons. Order VIII Rule 1 of the Code of Civil Procedure, 1908 reads as under:1. Written statement.-The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:Provided that where the Defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.15. This provision has come up for interpretation before this Court in number of cases. No doubt, the words shall not be later than ninety days do not take away the power of the Court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344 :21....There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.16. In such a situation, onus upon the Defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?17. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned by balancing the rights and equities is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the Respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the Defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically. It is also to be borne in mind that when the matter was listed on January 29, 2015, it was specifically recorded that no written statement was filed and the two suits were adjourned for ex-parte decree. In other suit i.e. Suit No. 3813 of 2000, similar Notice of Motion seeking condonation of delay was rejected though it contained same kind of explanation and that order has been upheld till this Court. On this ground also, there was no reason to take a contrary view in the instant matter when both the suits were taken up together and proceed simultaneously. | 1[ds]12. We find force and due merit in the aforesaid submissions of the learned Counsel for the Appellant13. We shall proceed on the basis that summons in Suit No. 4870 of 1999 were served only in the year 2009. In this behalf, it may be stated that in this suit, unconditional leave to defend was granted by the learned Single Judge on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the Court, Respondents were appearing having knowledge about the Suit No. 4870 of 1999 as well. Obviously, this leave to defend was granted after the Respondents had put in appearance and filed application for grant of leave to defend. Thus, summons in the suit were served upon the Respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter, Writ of Summons were not served again upon the Respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the Respondents to show as to in what manner they were prevented from filing the written statement14. It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the Defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons16. In such a situation, onus upon the Defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?17. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned by balancing the rights and equities is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the Respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the Defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically. It is also to be borne in mind that when the matter was listed on January 29, 2015, it was specifically recorded that no written statement was filed and the two suits were adjourned for ex-parte decree. In other suit i.e. Suit No. 3813 of 2000, similar Notice of Motion seeking condonation of delay was rejected though it contained same kind of explanation and that order has been upheld till this Court. On this ground also, there was no reason to take a contrary view in the instant matter when both the suits were taken up together and proceed simultaneously. | 1 | 3,795 | 669 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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that order was affirmed by the Division Bench (and now even by this Court). While dealing with the instant matter, the High Court failed to consider those orders passed by the co-ordinate Benches.12. We find force and due merit in the aforesaid submissions of the learned Counsel for the Appellant.13. We shall proceed on the basis that summons in Suit No. 4870 of 1999 were served only in the year 2009. In this behalf, it may be stated that in this suit, unconditional leave to defend was granted by the learned Single Judge on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the Court, Respondents were appearing having knowledge about the Suit No. 4870 of 1999 as well. Obviously, this leave to defend was granted after the Respondents had put in appearance and filed application for grant of leave to defend. Thus, summons in the suit were served upon the Respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter, Writ of Summons were not served again upon the Respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the Respondents to show as to in what manner they were prevented from filing the written statement.14. It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the Defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. Proviso thereto enables the Court to extend the period upto ninety days from the date of service of summons for sufficient reasons. Order VIII Rule 1 of the Code of Civil Procedure, 1908 reads as under:1. Written statement.-The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:Provided that where the Defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.15. This provision has come up for interpretation before this Court in number of cases. No doubt, the words shall not be later than ninety days do not take away the power of the Court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344 :21....There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.16. In such a situation, onus upon the Defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?17. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned by balancing the rights and equities is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the Respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the Defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically. It is also to be borne in mind that when the matter was listed on January 29, 2015, it was specifically recorded that no written statement was filed and the two suits were adjourned for ex-parte decree. In other suit i.e. Suit No. 3813 of 2000, similar Notice of Motion seeking condonation of delay was rejected though it contained same kind of explanation and that order has been upheld till this Court. On this ground also, there was no reason to take a contrary view in the instant matter when both the suits were taken up together and proceed simultaneously.
### Response:
1
### Explanation:
12. We find force and due merit in the aforesaid submissions of the learned Counsel for the Appellant13. We shall proceed on the basis that summons in Suit No. 4870 of 1999 were served only in the year 2009. In this behalf, it may be stated that in this suit, unconditional leave to defend was granted by the learned Single Judge on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the Court, Respondents were appearing having knowledge about the Suit No. 4870 of 1999 as well. Obviously, this leave to defend was granted after the Respondents had put in appearance and filed application for grant of leave to defend. Thus, summons in the suit were served upon the Respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter, Writ of Summons were not served again upon the Respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the Respondents to show as to in what manner they were prevented from filing the written statement14. It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the Defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons16. In such a situation, onus upon the Defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?17. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned by balancing the rights and equities is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the Respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the Defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically. It is also to be borne in mind that when the matter was listed on January 29, 2015, it was specifically recorded that no written statement was filed and the two suits were adjourned for ex-parte decree. In other suit i.e. Suit No. 3813 of 2000, similar Notice of Motion seeking condonation of delay was rejected though it contained same kind of explanation and that order has been upheld till this Court. On this ground also, there was no reason to take a contrary view in the instant matter when both the suits were taken up together and proceed simultaneously.
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ASHARAFI DEVI (D) THR. LRS Vs. STATE OF U.P. THROUGH COLLECTOR/DISTRICT MAGISTRATE | M.P. Raju, learned counsel for the respondents. 9. It is clear from the record that the original appellant (writ petitioner) never challenged the legality and correctness of the main order dated 14.03.2008 passed in the writ petition (10557/2002) but confined her challenge only to the order dated 16.12.2008 passed in the review application. 10. Though, learned counsel for the appellant contended that reading of the list of dates in this appeal shows that the original appellant has challenged the main order dated 14.03.2008 also along with the review order dated 16.12.2008, but we do not find it to be so. 11. In our opinion, the original appellant not having challenged the legality of the main order dated 14.03.2008 in a separate SLP or in this appeal, this Court is not called upon to examine the legality and correctness of the main order dated 14.03.2008 in the present appeal. 12. Mr. Jayant Bhushan, learned senior counsel for the appellants, however, argued that this Court should invoke the powers under Article 142 of the Constitution and permit the appellants to challenge the main order. We find no merit in this submission for three reasons. 13. First, the original appellant did not assign any reason as to what prevented her in the last almost 11 years in not filing the SLP against the main order; 14. Second, there was no legal impediment on the appellants? right to file the SLP in this Court as soon as the main order dated 14.03.2008 was passed and lastly, when the present SLP was filed in the year 2010 against the review order, the original appellant again did not challenge the main order dated 14.03.2008. 15. In the light of these three reasons, we find no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants(legal representatives of original appellant) to question the legality of main order dated 14.03.2008 in this appeal. 16. Now coming to the merits of the case, we have to only examine the question as to whether the High Court was right in dismissing the review application filed by the original appellant holding that there was no error apparent on the face of the main order dated 14.03.2008 within the meaning of Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?). 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal 18. While examining the legality of the review order, we cannot examine the legality of main order dated 14.03.2008 on its merits because, as mentioned above, this appeal does not arise out of the main order. Therefore, we have to confine our inquiry with a view to find out whether the review order is legally sustainable or not. 19. On perusal of the main order dated 14.03.2008, we find that the High Court dismissed the writ petition holding that the writ petitioner (original appellant herein) failed to prove her possession over the land in question on the date of repeal. It was held that the State had taken possession of the land in the year 1982 as per the panchnama prepared by the State. 20. In review, the High Court held that while recording the aforementioned finding in the main order, no apparent error, whether on facts or law within the meaning of Order 47 Rule 1 of the Code, was committed attracting the rigor of Order 47 Rule 1 of the Code. 21 It is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. 22 Learned counsel for the appellants then argued the appeal as if this appeal arises out of the main order dated 14.03.2008. He extensively referred to the pleadings and several documents as if we are called upon to examine the legality of the main order itself 23. We find no merit in any of his submissions for more than one reason. First, as mentioned above, this appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court. 24. Second, we examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order dated 14.03.2008 holding that it did not contain any error/mistake apparent on the face of the record. 25. In other words, we examined the issue only with a view to find out as to whether the review order, which is subject matter of this appeal, was passed in conformity with the requirements of Order 47 Rule 1 of the Code or not. 26. Third, having examined, we are of the view that the review order was passed in conformity with the requirements of Order 47 Rule 1 of the Code and, therefore, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s) within the meaning of Order 47 of the Code so as to entitle the review Court to recall the same in its review jurisdiction. 27. And lastly, once the finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence. | 0[ds]9. It is clear from the record that the original appellant (writ petitioner) never challenged the legality and correctness of the main order dated 14.03.2008 passed in the writ petition (10557/2002) but confined her challenge only to the order dated 16.12.2008 passed in the review application.Though, learned counsel for the appellant contended that reading of the list of dates in this appeal shows that the original appellant has challenged the main order dated 14.03.2008 also along with the review order dated 16.12.2008, but we do not find it to be so.In our opinion, the original appellant not having challenged the legality of the main order dated 14.03.2008 in a separate SLP or in this appeal, this Court is not called upon to examine the legality and correctness of the main order dated 14.03.2008 in the present appeal.Mr. Jayant Bhushan, learned senior counsel for the appellants, however, argued that this Court should invoke the powers under Article 142 of the Constitution and permit the appellants to challenge the main order.We find no merit in this submission for three reasons.First, the original appellant did not assign any reason as to what prevented her in the last almost 11 years in not filing the SLP against the mainSecond, there was no legal impediment on the appellants? right to file the SLP in this Court as soon as the main order dated 14.03.2008 was passed and lastly, when the present SLP was filed in the year 2010 against the review order, the original appellant again did not challenge the main order dated 14.03.2008.In the light of these three reasons, we find no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants(legal representatives of original appellant) to question the legality of main order dated 14.03.2008 in this appeal.Now coming to the merits of the case, we have to only examine the question as to whether the High Court was right in dismissing the review application filed by the original appellant holding that there was no error apparent on the face of the main order dated 14.03.2008 within the meaning of Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?).Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in thisWhile examining the legality of the review order, we cannot examine the legality of main order dated 14.03.2008 on its merits because, as mentioned above, this appeal does not arise out of the main order. Therefore, we have to confine our inquiry with a view to find out whether the review order is legally sustainable or not.On perusal of the main order dated 14.03.2008, we find that the High Court dismissed the writ petition holding that the writ petitioner (original appellant herein) failed to prove her possession over the land in question on the date of repeal. It was held that the State had taken possession of the land in the year 1982 as per the panchnama prepared by the State.In review, the High Court held that while recording the aforementioned finding in the main order, no apparent error, whether on facts or law within the meaning of Order 47 Rule 1 of the Code, was committed attracting the rigor of Order 47 Rule 1 of theIt is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case.We find no merit in any of his submissions for more than one reason. First, as mentioned above, this appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court.Second, we examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order dated 14.03.2008 holding that it did not contain any error/mistake apparent on the face of the record.In other words, we examined the issue only with a view to find out as to whether the review order, which is subject matter of this appeal, was passed in conformity with the requirements of Order 47 Rule 1 of the Code or not.Third, having examined, we are of the view that the review order was passed in conformity with the requirements of Order 47 Rule 1 of the Code and, therefore, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s) within the meaning of Order 47 of the Code so as to entitle the review Court to recall the same in its review jurisdiction.And lastly, once the finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence. | 0 | 1,476 | 983 | ### Instruction:
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M.P. Raju, learned counsel for the respondents. 9. It is clear from the record that the original appellant (writ petitioner) never challenged the legality and correctness of the main order dated 14.03.2008 passed in the writ petition (10557/2002) but confined her challenge only to the order dated 16.12.2008 passed in the review application. 10. Though, learned counsel for the appellant contended that reading of the list of dates in this appeal shows that the original appellant has challenged the main order dated 14.03.2008 also along with the review order dated 16.12.2008, but we do not find it to be so. 11. In our opinion, the original appellant not having challenged the legality of the main order dated 14.03.2008 in a separate SLP or in this appeal, this Court is not called upon to examine the legality and correctness of the main order dated 14.03.2008 in the present appeal. 12. Mr. Jayant Bhushan, learned senior counsel for the appellants, however, argued that this Court should invoke the powers under Article 142 of the Constitution and permit the appellants to challenge the main order. We find no merit in this submission for three reasons. 13. First, the original appellant did not assign any reason as to what prevented her in the last almost 11 years in not filing the SLP against the main order; 14. Second, there was no legal impediment on the appellants? right to file the SLP in this Court as soon as the main order dated 14.03.2008 was passed and lastly, when the present SLP was filed in the year 2010 against the review order, the original appellant again did not challenge the main order dated 14.03.2008. 15. In the light of these three reasons, we find no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants(legal representatives of original appellant) to question the legality of main order dated 14.03.2008 in this appeal. 16. Now coming to the merits of the case, we have to only examine the question as to whether the High Court was right in dismissing the review application filed by the original appellant holding that there was no error apparent on the face of the main order dated 14.03.2008 within the meaning of Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?). 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal 18. While examining the legality of the review order, we cannot examine the legality of main order dated 14.03.2008 on its merits because, as mentioned above, this appeal does not arise out of the main order. Therefore, we have to confine our inquiry with a view to find out whether the review order is legally sustainable or not. 19. On perusal of the main order dated 14.03.2008, we find that the High Court dismissed the writ petition holding that the writ petitioner (original appellant herein) failed to prove her possession over the land in question on the date of repeal. It was held that the State had taken possession of the land in the year 1982 as per the panchnama prepared by the State. 20. In review, the High Court held that while recording the aforementioned finding in the main order, no apparent error, whether on facts or law within the meaning of Order 47 Rule 1 of the Code, was committed attracting the rigor of Order 47 Rule 1 of the Code. 21 It is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. 22 Learned counsel for the appellants then argued the appeal as if this appeal arises out of the main order dated 14.03.2008. He extensively referred to the pleadings and several documents as if we are called upon to examine the legality of the main order itself 23. We find no merit in any of his submissions for more than one reason. First, as mentioned above, this appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court. 24. Second, we examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order dated 14.03.2008 holding that it did not contain any error/mistake apparent on the face of the record. 25. In other words, we examined the issue only with a view to find out as to whether the review order, which is subject matter of this appeal, was passed in conformity with the requirements of Order 47 Rule 1 of the Code or not. 26. Third, having examined, we are of the view that the review order was passed in conformity with the requirements of Order 47 Rule 1 of the Code and, therefore, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s) within the meaning of Order 47 of the Code so as to entitle the review Court to recall the same in its review jurisdiction. 27. And lastly, once the finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence.
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9. It is clear from the record that the original appellant (writ petitioner) never challenged the legality and correctness of the main order dated 14.03.2008 passed in the writ petition (10557/2002) but confined her challenge only to the order dated 16.12.2008 passed in the review application.Though, learned counsel for the appellant contended that reading of the list of dates in this appeal shows that the original appellant has challenged the main order dated 14.03.2008 also along with the review order dated 16.12.2008, but we do not find it to be so.In our opinion, the original appellant not having challenged the legality of the main order dated 14.03.2008 in a separate SLP or in this appeal, this Court is not called upon to examine the legality and correctness of the main order dated 14.03.2008 in the present appeal.Mr. Jayant Bhushan, learned senior counsel for the appellants, however, argued that this Court should invoke the powers under Article 142 of the Constitution and permit the appellants to challenge the main order.We find no merit in this submission for three reasons.First, the original appellant did not assign any reason as to what prevented her in the last almost 11 years in not filing the SLP against the mainSecond, there was no legal impediment on the appellants? right to file the SLP in this Court as soon as the main order dated 14.03.2008 was passed and lastly, when the present SLP was filed in the year 2010 against the review order, the original appellant again did not challenge the main order dated 14.03.2008.In the light of these three reasons, we find no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants(legal representatives of original appellant) to question the legality of main order dated 14.03.2008 in this appeal.Now coming to the merits of the case, we have to only examine the question as to whether the High Court was right in dismissing the review application filed by the original appellant holding that there was no error apparent on the face of the main order dated 14.03.2008 within the meaning of Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?).Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in thisWhile examining the legality of the review order, we cannot examine the legality of main order dated 14.03.2008 on its merits because, as mentioned above, this appeal does not arise out of the main order. Therefore, we have to confine our inquiry with a view to find out whether the review order is legally sustainable or not.On perusal of the main order dated 14.03.2008, we find that the High Court dismissed the writ petition holding that the writ petitioner (original appellant herein) failed to prove her possession over the land in question on the date of repeal. It was held that the State had taken possession of the land in the year 1982 as per the panchnama prepared by the State.In review, the High Court held that while recording the aforementioned finding in the main order, no apparent error, whether on facts or law within the meaning of Order 47 Rule 1 of the Code, was committed attracting the rigor of Order 47 Rule 1 of theIt is a settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case.We find no merit in any of his submissions for more than one reason. First, as mentioned above, this appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court.Second, we examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order dated 14.03.2008 holding that it did not contain any error/mistake apparent on the face of the record.In other words, we examined the issue only with a view to find out as to whether the review order, which is subject matter of this appeal, was passed in conformity with the requirements of Order 47 Rule 1 of the Code or not.Third, having examined, we are of the view that the review order was passed in conformity with the requirements of Order 47 Rule 1 of the Code and, therefore, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s) within the meaning of Order 47 of the Code so as to entitle the review Court to recall the same in its review jurisdiction.And lastly, once the finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence.
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BANGALORE INTERNATIONAL AIRPORT AREA PLANNING AUTHORITY Vs. BIRLA SUPRER BULK TERMINAL(NOW A UNIT OF ULTRA TECH CEMENT LIMITED | and the interpretation thereof by the court should be to secure that object. In so far as the industrial area allotted by KIADB, the interpretation given by the High Court to the provisions of KTCP Act would render the existence of the Planning Authority like the appellant to futility. While on the one hand, the High Court has directed the first respondent to obtain permission from the Planning Authority under KTCP Act and that the appellant- Authority to scrutinise those plans only to ensure that they are in conformity with the Regulations etc. At the same time, the High Court is saying that the appellant-Authority cannot collect the betterment fees. In our considered view, such findings are contradictory to each other and cannot be sustained. 31. The High Court held that KIAD Act being a Special Act, the same will prevail over KTCP Act which is a General Act. KTCP Act is applicable to all the developmental activities in respect of any land coming within the area of Outline Development Plan (ODP) and the lands in question even though situated in industrial area comes within the area of ODP of the Planning Authority. The developmental activities over the said land have to be carried on only with the permission of the Authority and both the enactments have to be harmoniously construed so as to give effect to each of the Acts enacted by the State Government. 32. The question to be considered in this regard is whether KIAD Act is a special enactment and KTCP Act a general Act and whether the maxim Generalia Specialibus Non Derogant is applicable as held by the High Court. Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act. As discussed earlier, as per the preamble of the KIAD Act, it is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein. KTCP Act on the other hand, as we have pointed out earlier, was enacted to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Thus, considering the legislative intent of the two enactments, it is seen that there is nothing in the KIAD Act to destroy the authority of the Appellant which has its own assigned role to perform under the provisions of the KTCP Act. Considering the object and purpose for which both the Acts were enacted, there is no inconsistency or overlapping between the two enactments and the power of authorities constituted under the Acts. As the areas of operation of KIAD Act and KTCP Act are wholly different, there is no question of applicability of the maxim Generalia Specialibus Non Derogant. 33. Seeking grant of permission for construction of industrial buildings – Bulk Cement Terminal near Dodaballapur Railway Station, the first respondent submitted its application to the appellant-Authority on 08.06.1998. On that application for sanctioning the development plan consisting of the plan of storage, packing and administrative office buildings in the plot in question, the appellant-Authority vide order dated 17.09.1988 levied betterment charges, road charges etc. of Rs.1,48,29,173/- under various heads. In response to the same, the first respondent has sent its reply on 16.10.1998 inter alia stating that:- (i) since the first respondent has made payment to KIADB towards allotment of lands considering the first respondent as commercial establishment and levy of development at the rate of Rs.75/- per sq. mtr. may not be necessary; (ii) the construction put up by the first respondent are industrial buildings and not commercial establishments; and (iii) the first respondent is situated in Bengaluru Rural (North) District and it is not situated in Bengaluru Urban District attracting levy of such higher fee. 34. By careful perusal of the first respondents response dated 16.10.1998, it is seen that the first respondent has not challenged the jurisdiction of appellant-Authority to levy betterment charges and that the objections that the first respondent has raised were regarding the rate of betterment fee treating the first respondent as commercial establishment and the fact that they are situated in Bengaluru Rural (North) District and not in Bengaluru Urban District. When the first respondent has not raised the objection regarding the jurisdiction/competence of the appellant-Authority to levy betterment fee, the first respondent was not justified in turning around and challenging the powers of the appellant-Planning Authority to levy betterment charges. The High Court, in our view, did not properly consider the response of the first respondent and the High Court erred in saying that the role of KTCP is only to scrutinise the application to ensure that the plan is in conformity with the provisions of the KTCP Act and that it cannot levy the fee. 35. It is also pertinent to note that for obtaining sanction of their plan, the other allottees of industrial plots by KIADB have paid the betterment charges and also the road cess as demanded by the appellant-Authority. In this regard, the learned senior counsel for the appellant has drawn our attention to the communication from ITC Limited including the Pay Order dated 01.08.1997 for payment of betterment charges of Rs.3,01,71,600/-. When other allottees of industrial plots by KIADB have paid betterment charges and road cess for obtaining sanction of the plan, the first respondent cannot challenge the levy and contend that they are not liable to pay the betterment charges. 36. The High Court, in our view, ignored the important provisions of KTCP i.e. Sections 14 and 15 regarding the development act and the development activities including the industrial areas fall within the scope of the appellant-Authority and that the first respondent while obtaining the approval from the appellant-Authority for its plan is bound to pay the betterment charges, road cess and other charges as per the laws. | 0[ds]22. By careful reading of the provisions of both the Acts, it is seen that the object of KIAD Act is to make special provisions for securing the establishments of industrial areas in the State and to generally promote the establishment and orderly development of the industries. On the other hand, KTCP Act is for regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State. Both the Acts i.e. KIAD Act and KTCP Act operate in different fields. Considering the objects of both the enactments, we find that there is no merit in the plea of the fifth respondent that once a land is acquired for the purpose of industries under the KIAD Act and made over to the Board, the use of the land becomes use for industrial purpose and no further permission for change of use of land by KTCP or any other authority is required23. Though heading of Section 18 of the KTCP Act isRecovery of a fee in certain cases of permission for change in the use of land or building, the levy of prescribed fee is not only for permission for change of land use but also for development of land or building as contemplated under Section 14A or Section 14B or Section 15 or Section 17 of the Act. As pointed out earlier, development is defined in Section) of KTCP Act which inter alia provides forin the use of any building or land and includes. From a combined reading of Section 18 with Section) of KTCP Act, it is clear that the levy of prescribed fee under Section 18 of the Act is not merely for change of land use but also for development of land or building. The language of expression used in Section 18 that permission for change of land used….. and development of land or building…. is to be interpreted in the light of the object of KTCP Act as enunciated in the Preamble of the ActWhen the government of Karnataka, Finance Department and other departments and also the Commissioner for Industrial Development and other departments have participated in the abovesaid meeting and were all parties to the above decisions, it is not open to KIADB to resile from the minutes and put forth claim contrarily. Having been a party to the discussion in the meeting held on 04.12.1999, the State of Karnataka is also not justified in contending that the lands in question are included in the industrial area declared by the State Government and hence, not bound to pay the development fee under Section 18 of the Act27. Section 14 read with Section 18 of the KTCP Act clearly connotes that the Planning Authority is entrusted with the function of granting licence to put up construction on the land including the land acquired and allotted by the Board under KIAD Act. This is also clear from the provisions contained in theM of the KTCP Act which declares that the provisions of the said Act and the Rules, Regulations ands made thereunder shall have effect notwithstanding anything inconsistent contained in any other law. There is nothing in the provisions of this Act to exclude or exempt the lands which are covered by the KIAD Act29. The High Court, on the one hand, took the view that Sections 14, 15 and 18 of KTCP Act are not applicable to the industrial area which is governed by KIAD Act. On the other hand, the High Court held that for compliance of the provisions of Sections 14 and 15 of the KTCP Act for all the establishment of the industrial unit, the allottee has to seek approval of the Planning Authority constituted under KTCP Act and KTCP is to scrutinise the plan and other documents so as to ensure that the establishment of the industrial unit by the allottee in the industrial area is in conformity with the Zonal Regulations etc; but KTCP is not to levy betterment fee. The findings of the High Court are30. As discussed earlier, the Planning Authority constituted under KTCP Act is entrusted with the functions of granting approval for any development on the land within its jurisdiction including the land acquired and allotted by the Board under KIAD Act. Per contra, the enactment of KIAD Act is to make special provision for securing the establishment of the industrial area in the State and for that purpose to establish Industrial Areas Development Board. The provisions of both the Acts make the intention of the legislature very clear. As rightly submitted by the learned senior counsel for the appellant that if there are two possible interpretations of an enactment, one should avoid the construction which would reduce the legislation to futility and should rather accept the broader interpretation. A statute is designed to be workable and the interpretation thereof by the court should be to secure that object. In so far as the industrial area allotted by KIADB, the interpretation given by the High Court to the provisions of KTCP Act would render the existence of the Planning Authority like the appellant to futility. While on the one hand, the High Court has directed the first respondent to obtain permission from the Planning Authority under KTCP Act and that the appellantAuthority to scrutinise those plans only to ensure that they are in conformity with the Regulations etc. At the same time, the High Court is saying that they cannot collect the betterment fees. In our considered view, such findings are contradictory to each other and cannot be sustained31. The High Court held that KIAD Act being a Special Act, the same will prevail over KTCP Act which is a General Act. KTCP Act is applicable to all the developmental activities in respect of any land coming within the area of Outline Development Plan (ODP) and the lands in question even though situated in industrial area comes within the area of ODP of the Planning Authority. The developmental activities over the said land have to be carried on only with the permission of the Authority and both the enactments have to be harmoniously construed so as to give effect to each of the Acts enacted by the State Government32. The question to be considered in this regard is whether KIAD Act is a special enactment and KTCP Act a general Act and whether the maxim Generalia Specialibus Non Derogant is applicable as held by the High Court. Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act. As discussed earlier, as per the preamble of the KIAD Act, it is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein. KTCP Act on the other hand, as we have pointed out earlier, was enacted to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Thus, considering the legislative intent of the two enactments, it is seen that there is nothing in the KIAD Act to destroy the authority of the Appellant which has its own assigned role to perform under the provisions of the KTCP Act. Considering the object and purpose for which both the Acts were enacted, there is no inconsistency or overlapping between the two enactments and the power of authorities constituted under the Acts. As the areas of operation of KIAD Act and KTCP Act are wholly different, there is no question of applicability of the maxim Generalia Specialibus Non Derogant33. Seeking grant of permission for construction of industrial buildings – Bulk Cement Terminal near Dodaballapur Railway Station, the first respondent submitted its application to they on 08.06.1998. On that application for sanctioning the development plan consisting of the plan of storage, packing and administrative office buildings in the plot in question, they vide order dated 17.09.1988 levied betterment charges, road charges etc. of Rs.1,48,29,173/under various heads. In response to the same, the first respondent has sent its reply on 16.10.1998 inter alia stating that:(i) since the first respondent has made payment to KIADB towards allotment of lands considering the first respondent as commercial establishment and levy of development at the rate of Rs.75/per sq. mtr. may not be necessary; (ii) the construction put up by the first respondent are industrial buildings and not commercial establishments; and (iii) the first respondent is situated in Bengaluru Rural (North) District and it is not situated in Bengaluru Urban District attracting levy of such higher fee34. By careful perusal of the first respondents response dated 16.10.1998, it is seen that the first respondent has not challenged the jurisdiction ofy to levy betterment charges and that the objections that the first respondent has raised were regarding the rate of betterment fee treating the first respondent as commercial establishment and the fact that they are situated in Bengaluru Rural (North) District and not in Bengaluru Urban District. When the first respondent has not raised the objection regarding the jurisdiction/competence of they to levy betterment fee, the first respondent was not justified in turning around and challenging the powers of theg Authority to levy betterment charges. The High Court, in our view, did not properly consider the response of the first respondent and the High Court erred in saying that the role of KTCP is only to scrutinise the application to ensure that the plan is in conformity with the provisions of the KTCP Act and that it cannot levy the fee35. It is also pertinent to note that for obtaining sanction of their plan, the other allottees of industrial plots by KIADB have paid the betterment charges and also the road cess as demanded by the. In this regard, the learned senior counsel for the appellant has drawn our attention to the communication from ITC Limited including the Pay Order dated 01.08.1997 for payment of betterment charges of Rs.. When other allottees of industrial plots by KIADB have paid betterment charges and road cess for obtaining sanction of the plan, the first respondent cannot challenge the levy and contend that they are not liable to pay the betterment charges36. The High Court, in our view, ignored the important provisions of KTCP i.e. Sections 14 and 15 regarding the development act and the development activities including the industrial areas fall within the scope of they and that the first respondent while obtaining the approval from they for its plan is bound to pay the betterment charges, road cess and other charges as per the laws. | 0 | 6,925 | 1,917 | ### 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:
and the interpretation thereof by the court should be to secure that object. In so far as the industrial area allotted by KIADB, the interpretation given by the High Court to the provisions of KTCP Act would render the existence of the Planning Authority like the appellant to futility. While on the one hand, the High Court has directed the first respondent to obtain permission from the Planning Authority under KTCP Act and that the appellant- Authority to scrutinise those plans only to ensure that they are in conformity with the Regulations etc. At the same time, the High Court is saying that the appellant-Authority cannot collect the betterment fees. In our considered view, such findings are contradictory to each other and cannot be sustained. 31. The High Court held that KIAD Act being a Special Act, the same will prevail over KTCP Act which is a General Act. KTCP Act is applicable to all the developmental activities in respect of any land coming within the area of Outline Development Plan (ODP) and the lands in question even though situated in industrial area comes within the area of ODP of the Planning Authority. The developmental activities over the said land have to be carried on only with the permission of the Authority and both the enactments have to be harmoniously construed so as to give effect to each of the Acts enacted by the State Government. 32. The question to be considered in this regard is whether KIAD Act is a special enactment and KTCP Act a general Act and whether the maxim Generalia Specialibus Non Derogant is applicable as held by the High Court. Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act. As discussed earlier, as per the preamble of the KIAD Act, it is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein. KTCP Act on the other hand, as we have pointed out earlier, was enacted to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Thus, considering the legislative intent of the two enactments, it is seen that there is nothing in the KIAD Act to destroy the authority of the Appellant which has its own assigned role to perform under the provisions of the KTCP Act. Considering the object and purpose for which both the Acts were enacted, there is no inconsistency or overlapping between the two enactments and the power of authorities constituted under the Acts. As the areas of operation of KIAD Act and KTCP Act are wholly different, there is no question of applicability of the maxim Generalia Specialibus Non Derogant. 33. Seeking grant of permission for construction of industrial buildings – Bulk Cement Terminal near Dodaballapur Railway Station, the first respondent submitted its application to the appellant-Authority on 08.06.1998. On that application for sanctioning the development plan consisting of the plan of storage, packing and administrative office buildings in the plot in question, the appellant-Authority vide order dated 17.09.1988 levied betterment charges, road charges etc. of Rs.1,48,29,173/- under various heads. In response to the same, the first respondent has sent its reply on 16.10.1998 inter alia stating that:- (i) since the first respondent has made payment to KIADB towards allotment of lands considering the first respondent as commercial establishment and levy of development at the rate of Rs.75/- per sq. mtr. may not be necessary; (ii) the construction put up by the first respondent are industrial buildings and not commercial establishments; and (iii) the first respondent is situated in Bengaluru Rural (North) District and it is not situated in Bengaluru Urban District attracting levy of such higher fee. 34. By careful perusal of the first respondents response dated 16.10.1998, it is seen that the first respondent has not challenged the jurisdiction of appellant-Authority to levy betterment charges and that the objections that the first respondent has raised were regarding the rate of betterment fee treating the first respondent as commercial establishment and the fact that they are situated in Bengaluru Rural (North) District and not in Bengaluru Urban District. When the first respondent has not raised the objection regarding the jurisdiction/competence of the appellant-Authority to levy betterment fee, the first respondent was not justified in turning around and challenging the powers of the appellant-Planning Authority to levy betterment charges. The High Court, in our view, did not properly consider the response of the first respondent and the High Court erred in saying that the role of KTCP is only to scrutinise the application to ensure that the plan is in conformity with the provisions of the KTCP Act and that it cannot levy the fee. 35. It is also pertinent to note that for obtaining sanction of their plan, the other allottees of industrial plots by KIADB have paid the betterment charges and also the road cess as demanded by the appellant-Authority. In this regard, the learned senior counsel for the appellant has drawn our attention to the communication from ITC Limited including the Pay Order dated 01.08.1997 for payment of betterment charges of Rs.3,01,71,600/-. When other allottees of industrial plots by KIADB have paid betterment charges and road cess for obtaining sanction of the plan, the first respondent cannot challenge the levy and contend that they are not liable to pay the betterment charges. 36. The High Court, in our view, ignored the important provisions of KTCP i.e. Sections 14 and 15 regarding the development act and the development activities including the industrial areas fall within the scope of the appellant-Authority and that the first respondent while obtaining the approval from the appellant-Authority for its plan is bound to pay the betterment charges, road cess and other charges as per the laws.
### Response:
0
### Explanation:
reduce the legislation to futility and should rather accept the broader interpretation. A statute is designed to be workable and the interpretation thereof by the court should be to secure that object. In so far as the industrial area allotted by KIADB, the interpretation given by the High Court to the provisions of KTCP Act would render the existence of the Planning Authority like the appellant to futility. While on the one hand, the High Court has directed the first respondent to obtain permission from the Planning Authority under KTCP Act and that the appellantAuthority to scrutinise those plans only to ensure that they are in conformity with the Regulations etc. At the same time, the High Court is saying that they cannot collect the betterment fees. In our considered view, such findings are contradictory to each other and cannot be sustained31. The High Court held that KIAD Act being a Special Act, the same will prevail over KTCP Act which is a General Act. KTCP Act is applicable to all the developmental activities in respect of any land coming within the area of Outline Development Plan (ODP) and the lands in question even though situated in industrial area comes within the area of ODP of the Planning Authority. The developmental activities over the said land have to be carried on only with the permission of the Authority and both the enactments have to be harmoniously construed so as to give effect to each of the Acts enacted by the State Government32. The question to be considered in this regard is whether KIAD Act is a special enactment and KTCP Act a general Act and whether the maxim Generalia Specialibus Non Derogant is applicable as held by the High Court. Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act. As discussed earlier, as per the preamble of the KIAD Act, it is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein. KTCP Act on the other hand, as we have pointed out earlier, was enacted to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Thus, considering the legislative intent of the two enactments, it is seen that there is nothing in the KIAD Act to destroy the authority of the Appellant which has its own assigned role to perform under the provisions of the KTCP Act. Considering the object and purpose for which both the Acts were enacted, there is no inconsistency or overlapping between the two enactments and the power of authorities constituted under the Acts. As the areas of operation of KIAD Act and KTCP Act are wholly different, there is no question of applicability of the maxim Generalia Specialibus Non Derogant33. Seeking grant of permission for construction of industrial buildings – Bulk Cement Terminal near Dodaballapur Railway Station, the first respondent submitted its application to they on 08.06.1998. On that application for sanctioning the development plan consisting of the plan of storage, packing and administrative office buildings in the plot in question, they vide order dated 17.09.1988 levied betterment charges, road charges etc. of Rs.1,48,29,173/under various heads. In response to the same, the first respondent has sent its reply on 16.10.1998 inter alia stating that:(i) since the first respondent has made payment to KIADB towards allotment of lands considering the first respondent as commercial establishment and levy of development at the rate of Rs.75/per sq. mtr. may not be necessary; (ii) the construction put up by the first respondent are industrial buildings and not commercial establishments; and (iii) the first respondent is situated in Bengaluru Rural (North) District and it is not situated in Bengaluru Urban District attracting levy of such higher fee34. By careful perusal of the first respondents response dated 16.10.1998, it is seen that the first respondent has not challenged the jurisdiction ofy to levy betterment charges and that the objections that the first respondent has raised were regarding the rate of betterment fee treating the first respondent as commercial establishment and the fact that they are situated in Bengaluru Rural (North) District and not in Bengaluru Urban District. When the first respondent has not raised the objection regarding the jurisdiction/competence of they to levy betterment fee, the first respondent was not justified in turning around and challenging the powers of theg Authority to levy betterment charges. The High Court, in our view, did not properly consider the response of the first respondent and the High Court erred in saying that the role of KTCP is only to scrutinise the application to ensure that the plan is in conformity with the provisions of the KTCP Act and that it cannot levy the fee35. It is also pertinent to note that for obtaining sanction of their plan, the other allottees of industrial plots by KIADB have paid the betterment charges and also the road cess as demanded by the. In this regard, the learned senior counsel for the appellant has drawn our attention to the communication from ITC Limited including the Pay Order dated 01.08.1997 for payment of betterment charges of Rs.. When other allottees of industrial plots by KIADB have paid betterment charges and road cess for obtaining sanction of the plan, the first respondent cannot challenge the levy and contend that they are not liable to pay the betterment charges36. The High Court, in our view, ignored the important provisions of KTCP i.e. Sections 14 and 15 regarding the development act and the development activities including the industrial areas fall within the scope of they and that the first respondent while obtaining the approval from they for its plan is bound to pay the betterment charges, road cess and other charges as per the laws.
|
Dwarika Prasad Sahu Vs. State of Bihar & Others | waived until further orders" and one of such conditions was: "In the cash memo to be issued to the customers the names and addresses of the customers need not be mentioned and it will be sufficient if only the registration number of motor vehicles is noted in the cash memo". The requirement of clause (7) of the licence to mention the names and addresses of the customers in die cash memos was, therefore, dispensed with by the State Government with effect from 11th July, 1966 until further orders and this dispensation was in force at the time when sales were made by the petitioner under the cash memos described in Schedule to the rounds of detention. The absence of mention of the names and addresses of the purchasers in these cash memos did not, therefore, constitute contravention of clause (7) of the licence and no inference could rationally he drawn by the District Magistrate, from mere absence of names and addresses of the customers in the cash memos, without anything more, that the sales under the cash, memos were to fictitious persons. Ground No. 5 was, therefore, wholly unfounded. It was based on a complete misapprehension of what was required to be set out in the cash memos. It is rather surprising that the District Magistrate should not have known that the requirement of clause (7) of the licence in regard to mention of names and addresses of the customers in the cash memos bad been dispensed with by the State Government as far back as 11th July, 1966. If only the District Magistrate had properly applied his mind and made the necessary inquiries for the purpose of satisfying himself in regard to the charge in ground No. 5, he would have immediately realised that not mentioning the names and addresses of the customers in the cash memos was no longer a breach of clause (7) of the licence and it could not support an inference that the sales covered by the cash memos were to fictitious persons. But it appears that the District Magistrate mechanically subscribed to the grounds of detention without even caring to examine whether ground No. 5 was correct or not and proceeded to make the order of detention. We have tried t o see whether we could, even by taking a liberal or indulgent view, sustain ground No. 5, but we find it impossible to do so. In fact the learned counsel appearing on behalf of the State frankly conceded that it was not possible for him to support this ground.7. If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non- existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity, because it can never be predicated to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were before the detaining authority. See the decisions of this Court hi Shibban Lal Saxena v. The State of Uttar Pradesh, ([1954] S. C. R. 418.) Dr. Ram Manohar Lohia v. State of Bihar &Ors.([1956] 1 S. C. R. 709.) and Pushkar Mukherjee &Ors. v. The State of West Bengal. ([1969] 2 S.C.R 635) Even as recently as this year a Division Bench of this Court pointed out in Biram Chand v. State of Uttar Pradesh(A.I.R. 1974 S.C. 1161.) that "It is well settled that in an order under the present Act the decision of the authority is a subjective one and if one of the grounds is non-existent or irrelevant or is not available under the law, the entire detention order will fall since it is not possible to predicate as to whether the detaining authority would have made an order for detention even in the absence of non-existent or irrelevant ground".8. The conclusion is, therefore, inescapable that since ground No. 5 was wholly misconceived, non-existent and "not available under the law", the order of detention must be held to be invalid.9. Though, on this view we are taking as regards the invalidity of ground No. 5, it is not necessary for us to say anything in regard to the other grounds, we think we ought to draw the attention of the detaining authority to one other infirmity, s o that the detaining authority can, while exercising the power of detention in future, avoid such infirmity. That infirmity is to be found in ground No. 1 and it discloses yet another instance of non-application of mind on the part of the District Magistrate. The allegation in ground No. 1 was that cash memo No. 70996, dated 14th February, 1974 showed a sale of 1200 litres of high speed diesel oil to one Mr. Griffiths, but this allegation was patently incorrect as the cash memo in fact, as frankly admitted on behalf of the respondents, related only to the sale of 200 litres of high speed diesel oil to Mr. Griffiths and for the sale of further 1000 litres of high speed diesel oil to Mr. Griffiths. there was another cash memo No. 71120, dated 16th February, 1974 which did not find mention in ground No. 1. This circumstance also is indicative of the rather casual manner in which the District Magistrate proceeded to make the order of detention without proper application of mind and it could have an invalidating consequence on the order of detention. We hope and trust that the District Magistrate will be more careful in the future when he has occasion to exercise the enormous powers of preventive detention entrusted to him by the Parliament. | 1[ds]We think there is great force in this contention urged on behalf of the petitioner and the order of detention must on the basis of this contention alone be held to be bad.6. The gravamen of the charge against the petitioner in ground No. 5 was that he supplied 762 litres of high speed diesel oil under several cash memos described in Schedule I to the ground s of detention without giving the names and addresses of the purchasers and this was not only in contravention of clause (7) of the licence, but it also indicated that the supplies under these cash memos were made to fictitious persons. Now, it is true that clause (7) of the licence issued to the petitioner provided that the licensee shall issue to every customer a correct receipt or invoice, as the case may be, giving inter alia the name and address of the customer and, therefore, if t his requirement prescribed by clause (7) were operative at the material time, there can be, no doubt that the action of the petitioner in issuing cash memos to the purchasers without giving their names and addresses would have been in contravention of clause, (7) and it might have been a legitimate inference for the District Magistrate to draw that the sales were to fictitious persons, because. otherwise their names and addresses would have been mentioned in the cash memos as required by clause (7). But the order12706/S.C., dated 11th July, 1966 was issued by the State Government providing that " as regards high speed diesel oil, the enforcement of the following condition of the licence shall be waived until further orders" and one of such conditions was: "In the cash memo to be issued to the customers the names and addresses of the customers need not be mentioned and it will be sufficient if only the registration number of motor vehicles is noted in the cash memo". The requirement of clause (7) of the licence to mention the names and addresses of the customers in die cash memos was, therefore, dispensed with by the State Government with effect from 11th July, 1966 until further orders and this dispensation was in force at the time when sales were made by the petitioner under the cash memos described in Schedule to the rounds of detention. The absence of mention of the names and addresses of the purchasers in these cash memos did not, therefore, constitute contravention of clause (7) of the licence and no inference could rationally he drawn by the District Magistrate, from mere absence of names and addresses of the customers in the cash memos, without anything more, that the sales under the cash, memos were to fictitious persons. Ground No. 5 was, therefore, wholly unfounded. It was based on a complete misapprehension of what was required to be set out in the cash memos. It is rather surprising that the District Magistrate should not have known that the requirement of clause (7) of the licence in regard to mention of names and addresses of the customers in the cash memos bad been dispensed with by the State Government as far back as 11th July, 1966. If only the District Magistrate had properly applied his mind and made the necessary inquiries for the purpose of satisfying himself in regard to the charge in ground No. 5, he would have immediately realised that not mentioning the names and addresses of the customers in the cash memos was no longer a breach of clause (7) of the licence and it could not support an inference that the sales covered by the cash memos were to fictitious persons. But it appears that the District Magistrate mechanically subscribed to the grounds of detention without even caring to examine whether ground No. 5 was correct or not and proceeded to make the order of detention. We have tried t o see whether we could, even by taking a liberal or indulgent view, sustain ground No. 5, but we find it impossible to do so. In fact the learned counsel appearing on behalf of the State frankly conceded that it was not possible for him to support this ground.7. If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is nonexistent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity, because it can never be predicated to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were before the detaining authority. See the decisions of this Court hi Shibban Lal Saxena v. The State of Uttar Pradesh, ([1954] S. C. R. 418.) Dr. Ram Manohar Lohia v. State of Bihar &Ors.([1956] 1 S. C. R. 709.) and Pushkar Mukherjee &Ors. v. The State of West Bengal. ([1969] 2 S.C.R 635) Even as recently as this year a Division Bench of this Court pointed out in Biram Chand v. State of Uttar Pradesh(A.I.R. 1974 S.C. 1161.) that "It is well settled that in an order under the present Act the decision of the authority is a subjective one and if one of the grounds isor irrelevant or is not available under the law, the entire detention order will fall since it is not possible to predicate as to whether the detaining authority would have made an order for detention even in the absence ofor irrelevant ground".8. The conclusion is, therefore, inescapable that since ground No. 5 was wholly misconceived,and "not available under the law", the order of detention must be held to be invalid.9. Though, on this view we are taking as regards the invalidity of ground No. 5, it is not necessary for us to say anything in regard to the other grounds, we think we ought to draw the attention of the detaining authority to one other infirmity, s o that the detaining authority can, while exercising the power of detention in future, avoid such infirmity. That infirmity is to be found in ground No. 1 and it discloses yet another instance ofof mind on the part of the District Magistrate. The allegation in ground No. 1 was that cash memo No. 70996, dated 14th February, 1974 showed a sale of 1200 litres of high speed diesel oil to one Mr. Griffiths, but this allegation was patently incorrect as the cash memo in fact, as frankly admitted on behalf of the respondents, related only to the sale of 200 litres of high speed diesel oil to Mr. Griffiths and for the sale of further 1000 litres of high speed diesel oil to Mr. Griffiths. there was another cash memo No. 71120, dated 16th February, 1974 which did not find mention in ground No. 1. This circumstance also is indicative of the rather casual manner in which the District Magistrate proceeded to make the order of detention without proper application of mind and it could have an invalidating consequence on the order of detention. We hope and trust that the District Magistrate will be more careful in the future when he has occasion to exercise the enormous powers of preventive detention entrusted to him by the Parliament. | 1 | 2,972 | 1,409 | ### 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:
waived until further orders" and one of such conditions was: "In the cash memo to be issued to the customers the names and addresses of the customers need not be mentioned and it will be sufficient if only the registration number of motor vehicles is noted in the cash memo". The requirement of clause (7) of the licence to mention the names and addresses of the customers in die cash memos was, therefore, dispensed with by the State Government with effect from 11th July, 1966 until further orders and this dispensation was in force at the time when sales were made by the petitioner under the cash memos described in Schedule to the rounds of detention. The absence of mention of the names and addresses of the purchasers in these cash memos did not, therefore, constitute contravention of clause (7) of the licence and no inference could rationally he drawn by the District Magistrate, from mere absence of names and addresses of the customers in the cash memos, without anything more, that the sales under the cash, memos were to fictitious persons. Ground No. 5 was, therefore, wholly unfounded. It was based on a complete misapprehension of what was required to be set out in the cash memos. It is rather surprising that the District Magistrate should not have known that the requirement of clause (7) of the licence in regard to mention of names and addresses of the customers in the cash memos bad been dispensed with by the State Government as far back as 11th July, 1966. If only the District Magistrate had properly applied his mind and made the necessary inquiries for the purpose of satisfying himself in regard to the charge in ground No. 5, he would have immediately realised that not mentioning the names and addresses of the customers in the cash memos was no longer a breach of clause (7) of the licence and it could not support an inference that the sales covered by the cash memos were to fictitious persons. But it appears that the District Magistrate mechanically subscribed to the grounds of detention without even caring to examine whether ground No. 5 was correct or not and proceeded to make the order of detention. We have tried t o see whether we could, even by taking a liberal or indulgent view, sustain ground No. 5, but we find it impossible to do so. In fact the learned counsel appearing on behalf of the State frankly conceded that it was not possible for him to support this ground.7. If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non- existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity, because it can never be predicated to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were before the detaining authority. See the decisions of this Court hi Shibban Lal Saxena v. The State of Uttar Pradesh, ([1954] S. C. R. 418.) Dr. Ram Manohar Lohia v. State of Bihar &Ors.([1956] 1 S. C. R. 709.) and Pushkar Mukherjee &Ors. v. The State of West Bengal. ([1969] 2 S.C.R 635) Even as recently as this year a Division Bench of this Court pointed out in Biram Chand v. State of Uttar Pradesh(A.I.R. 1974 S.C. 1161.) that "It is well settled that in an order under the present Act the decision of the authority is a subjective one and if one of the grounds is non-existent or irrelevant or is not available under the law, the entire detention order will fall since it is not possible to predicate as to whether the detaining authority would have made an order for detention even in the absence of non-existent or irrelevant ground".8. The conclusion is, therefore, inescapable that since ground No. 5 was wholly misconceived, non-existent and "not available under the law", the order of detention must be held to be invalid.9. Though, on this view we are taking as regards the invalidity of ground No. 5, it is not necessary for us to say anything in regard to the other grounds, we think we ought to draw the attention of the detaining authority to one other infirmity, s o that the detaining authority can, while exercising the power of detention in future, avoid such infirmity. That infirmity is to be found in ground No. 1 and it discloses yet another instance of non-application of mind on the part of the District Magistrate. The allegation in ground No. 1 was that cash memo No. 70996, dated 14th February, 1974 showed a sale of 1200 litres of high speed diesel oil to one Mr. Griffiths, but this allegation was patently incorrect as the cash memo in fact, as frankly admitted on behalf of the respondents, related only to the sale of 200 litres of high speed diesel oil to Mr. Griffiths and for the sale of further 1000 litres of high speed diesel oil to Mr. Griffiths. there was another cash memo No. 71120, dated 16th February, 1974 which did not find mention in ground No. 1. This circumstance also is indicative of the rather casual manner in which the District Magistrate proceeded to make the order of detention without proper application of mind and it could have an invalidating consequence on the order of detention. We hope and trust that the District Magistrate will be more careful in the future when he has occasion to exercise the enormous powers of preventive detention entrusted to him by the Parliament.
### Response:
1
### Explanation:
of the following condition of the licence shall be waived until further orders" and one of such conditions was: "In the cash memo to be issued to the customers the names and addresses of the customers need not be mentioned and it will be sufficient if only the registration number of motor vehicles is noted in the cash memo". The requirement of clause (7) of the licence to mention the names and addresses of the customers in die cash memos was, therefore, dispensed with by the State Government with effect from 11th July, 1966 until further orders and this dispensation was in force at the time when sales were made by the petitioner under the cash memos described in Schedule to the rounds of detention. The absence of mention of the names and addresses of the purchasers in these cash memos did not, therefore, constitute contravention of clause (7) of the licence and no inference could rationally he drawn by the District Magistrate, from mere absence of names and addresses of the customers in the cash memos, without anything more, that the sales under the cash, memos were to fictitious persons. Ground No. 5 was, therefore, wholly unfounded. It was based on a complete misapprehension of what was required to be set out in the cash memos. It is rather surprising that the District Magistrate should not have known that the requirement of clause (7) of the licence in regard to mention of names and addresses of the customers in the cash memos bad been dispensed with by the State Government as far back as 11th July, 1966. If only the District Magistrate had properly applied his mind and made the necessary inquiries for the purpose of satisfying himself in regard to the charge in ground No. 5, he would have immediately realised that not mentioning the names and addresses of the customers in the cash memos was no longer a breach of clause (7) of the licence and it could not support an inference that the sales covered by the cash memos were to fictitious persons. But it appears that the District Magistrate mechanically subscribed to the grounds of detention without even caring to examine whether ground No. 5 was correct or not and proceeded to make the order of detention. We have tried t o see whether we could, even by taking a liberal or indulgent view, sustain ground No. 5, but we find it impossible to do so. In fact the learned counsel appearing on behalf of the State frankly conceded that it was not possible for him to support this ground.7. If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is nonexistent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity, because it can never be predicated to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were before the detaining authority. See the decisions of this Court hi Shibban Lal Saxena v. The State of Uttar Pradesh, ([1954] S. C. R. 418.) Dr. Ram Manohar Lohia v. State of Bihar &Ors.([1956] 1 S. C. R. 709.) and Pushkar Mukherjee &Ors. v. The State of West Bengal. ([1969] 2 S.C.R 635) Even as recently as this year a Division Bench of this Court pointed out in Biram Chand v. State of Uttar Pradesh(A.I.R. 1974 S.C. 1161.) that "It is well settled that in an order under the present Act the decision of the authority is a subjective one and if one of the grounds isor irrelevant or is not available under the law, the entire detention order will fall since it is not possible to predicate as to whether the detaining authority would have made an order for detention even in the absence ofor irrelevant ground".8. The conclusion is, therefore, inescapable that since ground No. 5 was wholly misconceived,and "not available under the law", the order of detention must be held to be invalid.9. Though, on this view we are taking as regards the invalidity of ground No. 5, it is not necessary for us to say anything in regard to the other grounds, we think we ought to draw the attention of the detaining authority to one other infirmity, s o that the detaining authority can, while exercising the power of detention in future, avoid such infirmity. That infirmity is to be found in ground No. 1 and it discloses yet another instance ofof mind on the part of the District Magistrate. The allegation in ground No. 1 was that cash memo No. 70996, dated 14th February, 1974 showed a sale of 1200 litres of high speed diesel oil to one Mr. Griffiths, but this allegation was patently incorrect as the cash memo in fact, as frankly admitted on behalf of the respondents, related only to the sale of 200 litres of high speed diesel oil to Mr. Griffiths and for the sale of further 1000 litres of high speed diesel oil to Mr. Griffiths. there was another cash memo No. 71120, dated 16th February, 1974 which did not find mention in ground No. 1. This circumstance also is indicative of the rather casual manner in which the District Magistrate proceeded to make the order of detention without proper application of mind and it could have an invalidating consequence on the order of detention. We hope and trust that the District Magistrate will be more careful in the future when he has occasion to exercise the enormous powers of preventive detention entrusted to him by the Parliament.
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G. Narayana Raju Vs. G. Chamaraju & Others | and conduct. But it is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention. In the present case, the High Court has examined the evidence on the part of Muniswami Raju to throw the separate business of Ambika Stores into the common stock, nor was it his intention to treat it as a joint family business. Company on behalf of the appellant referred to the recital in Ex. E describing the properties being those of the executants and that the borrowing was for trade and benefit of the family and it was argued that there was a clear intention on the part of Muniswami Raju to treat the business as joint family business. We have already referred to this document and indicated that the recitials were probably made for the purpose of securing a loan and cannot be construed as consent on the part of the members of the joint family to treat the business as the joint family business. Further, there is ample evidence to show that in all succeeding years before his death Muniswami Raju had always described himself and conducted himself as the sole proprietor of Ambika Stores. Such an attitude on the part of Muniswami Raju was not consistent with any intention on his part either to abandon his exclusive right to the business or to allow the business to be treated as joint family business. Exhibits XXXV to SLVI are all documents executed by third parties in favour of Muniswami Raju in which Muniswami Raju has been described as the proprietor of Ambika Stores. Exhibits III, XXIII, XXIV, 51, 52, 56, 58, ZZ, AAA series and BBB are all communications addressed by institutions like Banks etc., in which Muniswami Raju has been described as the proprietor of Ambika Stores. It may be stated that the appellant himself has admitted in his evidence that he was not drawing any moneys from the business of Ambika Stores and that whenever he wanted any money, he would ask Muniswami Raju and obtain it from him. If really the appellant had considered himself to be a co-owner equally with Muniswami Raju, such conduct on his part is not explicable. It was urged on behalf of the appellant that there was not documentary evidence to show that the appellant was being paid any salary by Muniswami Raj and that prior to Muniswami Rajus death, it was the appellant who was in the entire management of Ambika Stores when Muniswami Raju was ill and after the death of Muniswami Raju also it was the appellant who had been in management. All the books of account and other documents pertaining to the business of Ambika Stores had been admittedly entrusted to the appellant. But it is not explained on behalf of the appellant as to why the documents were not produced on his behalf to disprove the case of the respondents that he was a salaried servant. It is therefore not unreasonable to draw an inference from the conduct of the appellant that the account books, if produced in court, would not have supported his case. We accordingly reject the argument of the appellant that the business of Ambika Stores became converted into joint family business at any subsequent stage by the conduct of Muniswami Raju in throwing the business into the common stock or in blending the earnings of the business with the joint family income. 7. It was finally contended on behalf of the appellant that, in any event, the appellant became a co-owner of the business along with Muniswami Raju by reason of contribution of his own labour towards the development of the business. In our opinion, there is no substance in this argument. It is evident that the appellant gave up his job in Wesley Press and joined Ambika Stores about 9 or 10 months after it was started by Muniswami Raju. The appellant does not state in his evidence that he was a co-owner when he joined Ambika Stores. On the other hand, in Ex. 68 which is an application dated March 20, 1928 by the appellant to the City Co-operative Bank, the appellant has described himself as a clerk in Ambika Stores and Muniswami Raju has been described as his proprietor. There is no satisfactory evidence on behalf of the appellant to show as to when and under which circumstances his status of a clerk changed to that of a co-owner. In another application, Ex. 1 which is of the year 1929 the appellant has described Muniswami Raju as the proprietor of Ambika Stores and he has described himself as doing out-door commercial business with Ambika Stores. Again, in Ex. C which is a loan application made in 1932 by both the brothers, Muniswami Raju has been described as the proprietor of Ambika Stores while the appellant has been described as a General Merchant of Mysore. Reference was made on behalf of the appellant to recitals in Ex. DDD a mortgage deed dated June 20, 1934 in which Muniswami Raju and the appellant have been described as proprietors of Ambika Stores. We have already dealt with this document and for the reasons already mentioned we hold that the description of the executants was only given for the purpose of borrowing from the Bank and it had not the legal effect of making the appellant a co-owner of the partnership business. There is no evidence of any assertion by the appellant during Muniswami Rajus lifetime of his being a co-owner of the partnership business, nor is there any evidence of recognition by Muniswami Raju of any such right of the appellant. On the other hand, there is sufficient evidence to show that whatever the appellant d id in connection with the business was only done with the authority conferred by Muniswami Raju. In our opinion the High Court has rightly rejected the claim of the appellant that he was a co-owner of the partnership business. | 0[ds]It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate.The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact4. It was, however, contented on behalf of the appellant that the finding of the lower courts is vitiated in law because of the circumstance that they have not taken into account three important documents Ex. D, Ex. E and Ex. DDD. We are unable to accept this argument as correct. It is manifest on a perusal of the judgment of the High Court that all the documents have been examined regarding the issue whether the business of Ambika Stores was a joint family business of Muniswami Raju7. It was finally contended on behalf of the appellant that, in any event, the appellant became a co-owner of the business along with Muniswami Raju by reason of contribution of his own labour towards the development of the business. In our opinion, there is no substance in this argument. It is evident that the appellant gave up his job in Wesley Press and joined Ambika Stores about 9 or 10 months after it was started by Muniswami Raju. The appellant does not state in his evidence that he was a co-owner when he joined Ambika Stores. On the other hand, in Ex. 68 which is an application dated March 20, 1928 by the appellant to the City Co-operative Bank, the appellant has described himself as a clerk in Ambika Stores and Muniswami Raju has been described as his proprietor. There is no satisfactory evidence on behalf of the appellant to show as to when and under which circumstances his status of a clerk changed to that of a co-owner. In another application, Ex. 1 which is of the year 1929 the appellant has described Muniswami Raju as the proprietor of Ambika Stores and he has described himself as doing out-door commercial business with Ambika Stores. Again, in Ex. C which is a loan application made in 1932 by both the brothers, Muniswami Raju has been described as the proprietor of Ambika Stores while the appellant has been described as a General Merchant of Mysore. Reference was made on behalf of the appellant to recitals in Ex. DDD a mortgage deed dated June 20, 1934 in which Muniswami Raju and the appellant have been described as proprietors of Ambika Stores. We have already dealt with this document and for the reasons already mentioned we hold that the description of the executants was only given for the purpose of borrowing from the Bank and it had not the legal effect of making the appellant a co-owner of the partnership business. There is no evidence of any assertion by the appellant during Muniswami Rajus lifetime of his being a co-owner of the partnership business, nor is there any evidence of recognition by Muniswami Raju of any such right of the appellant. On the other hand, there is sufficient evidence to show that whatever the appellant d id in connection with the business was only done with the authority conferred by Muniswami Raju. In our opinion the High Court has rightly rejected the claim of the appellant that he was a co-owner of the partnership business. | 0 | 4,082 | 673 | ### Instruction:
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and conduct. But it is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention. In the present case, the High Court has examined the evidence on the part of Muniswami Raju to throw the separate business of Ambika Stores into the common stock, nor was it his intention to treat it as a joint family business. Company on behalf of the appellant referred to the recital in Ex. E describing the properties being those of the executants and that the borrowing was for trade and benefit of the family and it was argued that there was a clear intention on the part of Muniswami Raju to treat the business as joint family business. We have already referred to this document and indicated that the recitials were probably made for the purpose of securing a loan and cannot be construed as consent on the part of the members of the joint family to treat the business as the joint family business. Further, there is ample evidence to show that in all succeeding years before his death Muniswami Raju had always described himself and conducted himself as the sole proprietor of Ambika Stores. Such an attitude on the part of Muniswami Raju was not consistent with any intention on his part either to abandon his exclusive right to the business or to allow the business to be treated as joint family business. Exhibits XXXV to SLVI are all documents executed by third parties in favour of Muniswami Raju in which Muniswami Raju has been described as the proprietor of Ambika Stores. Exhibits III, XXIII, XXIV, 51, 52, 56, 58, ZZ, AAA series and BBB are all communications addressed by institutions like Banks etc., in which Muniswami Raju has been described as the proprietor of Ambika Stores. It may be stated that the appellant himself has admitted in his evidence that he was not drawing any moneys from the business of Ambika Stores and that whenever he wanted any money, he would ask Muniswami Raju and obtain it from him. If really the appellant had considered himself to be a co-owner equally with Muniswami Raju, such conduct on his part is not explicable. It was urged on behalf of the appellant that there was not documentary evidence to show that the appellant was being paid any salary by Muniswami Raj and that prior to Muniswami Rajus death, it was the appellant who was in the entire management of Ambika Stores when Muniswami Raju was ill and after the death of Muniswami Raju also it was the appellant who had been in management. All the books of account and other documents pertaining to the business of Ambika Stores had been admittedly entrusted to the appellant. But it is not explained on behalf of the appellant as to why the documents were not produced on his behalf to disprove the case of the respondents that he was a salaried servant. It is therefore not unreasonable to draw an inference from the conduct of the appellant that the account books, if produced in court, would not have supported his case. We accordingly reject the argument of the appellant that the business of Ambika Stores became converted into joint family business at any subsequent stage by the conduct of Muniswami Raju in throwing the business into the common stock or in blending the earnings of the business with the joint family income. 7. It was finally contended on behalf of the appellant that, in any event, the appellant became a co-owner of the business along with Muniswami Raju by reason of contribution of his own labour towards the development of the business. In our opinion, there is no substance in this argument. It is evident that the appellant gave up his job in Wesley Press and joined Ambika Stores about 9 or 10 months after it was started by Muniswami Raju. The appellant does not state in his evidence that he was a co-owner when he joined Ambika Stores. On the other hand, in Ex. 68 which is an application dated March 20, 1928 by the appellant to the City Co-operative Bank, the appellant has described himself as a clerk in Ambika Stores and Muniswami Raju has been described as his proprietor. There is no satisfactory evidence on behalf of the appellant to show as to when and under which circumstances his status of a clerk changed to that of a co-owner. In another application, Ex. 1 which is of the year 1929 the appellant has described Muniswami Raju as the proprietor of Ambika Stores and he has described himself as doing out-door commercial business with Ambika Stores. Again, in Ex. C which is a loan application made in 1932 by both the brothers, Muniswami Raju has been described as the proprietor of Ambika Stores while the appellant has been described as a General Merchant of Mysore. Reference was made on behalf of the appellant to recitals in Ex. DDD a mortgage deed dated June 20, 1934 in which Muniswami Raju and the appellant have been described as proprietors of Ambika Stores. We have already dealt with this document and for the reasons already mentioned we hold that the description of the executants was only given for the purpose of borrowing from the Bank and it had not the legal effect of making the appellant a co-owner of the partnership business. There is no evidence of any assertion by the appellant during Muniswami Rajus lifetime of his being a co-owner of the partnership business, nor is there any evidence of recognition by Muniswami Raju of any such right of the appellant. On the other hand, there is sufficient evidence to show that whatever the appellant d id in connection with the business was only done with the authority conferred by Muniswami Raju. In our opinion the High Court has rightly rejected the claim of the appellant that he was a co-owner of the partnership business.
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It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate.The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact4. It was, however, contented on behalf of the appellant that the finding of the lower courts is vitiated in law because of the circumstance that they have not taken into account three important documents Ex. D, Ex. E and Ex. DDD. We are unable to accept this argument as correct. It is manifest on a perusal of the judgment of the High Court that all the documents have been examined regarding the issue whether the business of Ambika Stores was a joint family business of Muniswami Raju7. It was finally contended on behalf of the appellant that, in any event, the appellant became a co-owner of the business along with Muniswami Raju by reason of contribution of his own labour towards the development of the business. In our opinion, there is no substance in this argument. It is evident that the appellant gave up his job in Wesley Press and joined Ambika Stores about 9 or 10 months after it was started by Muniswami Raju. The appellant does not state in his evidence that he was a co-owner when he joined Ambika Stores. On the other hand, in Ex. 68 which is an application dated March 20, 1928 by the appellant to the City Co-operative Bank, the appellant has described himself as a clerk in Ambika Stores and Muniswami Raju has been described as his proprietor. There is no satisfactory evidence on behalf of the appellant to show as to when and under which circumstances his status of a clerk changed to that of a co-owner. In another application, Ex. 1 which is of the year 1929 the appellant has described Muniswami Raju as the proprietor of Ambika Stores and he has described himself as doing out-door commercial business with Ambika Stores. Again, in Ex. C which is a loan application made in 1932 by both the brothers, Muniswami Raju has been described as the proprietor of Ambika Stores while the appellant has been described as a General Merchant of Mysore. Reference was made on behalf of the appellant to recitals in Ex. DDD a mortgage deed dated June 20, 1934 in which Muniswami Raju and the appellant have been described as proprietors of Ambika Stores. We have already dealt with this document and for the reasons already mentioned we hold that the description of the executants was only given for the purpose of borrowing from the Bank and it had not the legal effect of making the appellant a co-owner of the partnership business. There is no evidence of any assertion by the appellant during Muniswami Rajus lifetime of his being a co-owner of the partnership business, nor is there any evidence of recognition by Muniswami Raju of any such right of the appellant. On the other hand, there is sufficient evidence to show that whatever the appellant d id in connection with the business was only done with the authority conferred by Muniswami Raju. In our opinion the High Court has rightly rejected the claim of the appellant that he was a co-owner of the partnership business.
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Commissioner of Income Tax West Bengal III, Calcutta Vs. Sri Jagannath Jee (Through Shebaits) | step-mother has to that extent diverted his income from him and has directed it to his step-mother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands. (pp. 138-139) A case. in contrast is P. C. Mullick v. Commr. of income tax,. There The testator died in October, 1P31. By his will he appointed the appellants (and another) his executOrs. He directed them to pay his debts out of the income of his property, and to pay Rs. 10,000/- out of the income of his property on the occasion of his Addya Shradh for expenses in connection therewith to the person entitled to perform the Shradh. He also directed his executors to pay out of the income of his property the costs of taking out probate of his will. After conferring out of income benefits on the second wife and his daughter and (out of the estate) benefits on the sons, if any, of his daughter, and after pro viding for the payment out of income gradually of divers sums to some persons, and certain annuities to others, he bequeathed all his remaining property (in the events which happened) to a son taken in adoption after his death by his wife, viz., one Ajit Kumar Ghosh who is still a minor. The payment of the Shradh expenses and the costs of probate were payments made out of the income of the estate coming to the hands of the appellants as executors, and in pursuance of an obligation imposed by their testator. It is not a case like the case of Bijoy Singh Dudhuria v. Commr. of Income Tax, Calcutta., AIR 1933 PC 145 in which a portion of income was by an overriding title diverted from the person who would otherwise have received it. It is simply a case in which the executors having received the whole income of the estate apply a portion in a particular way pursuant to the directions of their testator, in whose shoes they stand. 30. In The Commissioner of Income Tax, Bombay City II Vs. Shri Sitaldas Tirathdas, this Court referred to many reported decisions some of which we have just mentioned. Mr. Justice Hidayatullah, speaking for the Court, summed up the rule thus (at p. 374): In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it readies the assessee, it is deductible; bet where the income is required to be applied to discharge an obligation after such income reaches the asses-see, the same consequence in law does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable. In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income. 31. The High Court, in a laconic paragraph, dismissed this contention but Shri Sen submitted that there was merit in it and had to be accepted. We agree with the High Court because the terms in which the directions are couched do not divert the income at the source but merely command the shebaits to apply the income received from the debutter properties for specified purposes. We may quote to illustrate: I direct that the shebaits and trustees shall out of the Debutter funds maintain and keep a sufficient number of carriages and horses for their use, and comfort and that of their families and after providing for the purposes aforesaid out of the Debutter income I direct the shebaits and Trustees to pay to each of the shebaits for the time being who shall actually take part in the performance of the duties of the shebaits and the execution of the Trusts of this fund as and by way of remuneration for their services the sum of Rupees Five hundred a month.... I direct that the widows of my three deceased sons Greendro Sorrendro and Jogendra who assist in the work of preparing articles of offerings to the Thakoors and for the feeding and distribution to the poor and all the widows of shebaits hereby appointed and future shebaits who shall in like manner assist in the said work shall be fed and clothed and maintained and shall receive a remuneration of the sum of Rupees fifty each a month from the income of the debutter fund.... So the shebaits first get the income and then apply it in conformity with the directives given in the will. The rulings relied on by both sides do not shake the position we have taken and may not merit discussion. | 1[ds]We regard this stand of the Revenue as correct in the light of the provisions of Section 4(3)(i) and hold, in line, that whatever the outcome of the contest, the amounts spent on poor feeding and other public charitable purposes are outside the reach of the tax Pet &.and are totally exempt. We may, in fairness, state here that counsel for the Revenue, Shri Sharma, rightly agreed that the correct legal position, on a sound understanding of Section 4(3)(i) of the Act, was that these charitable expenditures were totally deductible from the computation for fixing the tax12. It is fair to comment that, even making allowance for annual variations, price fluctuations and change in circumstances, the pujas consume but a small fraction, that public charitable purposes bulk prominently in the budgeted expenditure and that the sums spent on the she-baits and trustees are liberal enough to exceed prudent reward for services. To set the record straight, it must be stated that a preponderant part of the income was spent on general public charitable causes like poor feeding, art gallery, aviary, menagerie and keeping a garden. Together with the cost of the rituals the budget was dominantly religio-charitable. These facts have no bearing on the construction of the will but invests the perspective with a touch of realism.12. It is fair to comment that, even making allowance for annual variations, price fluctuations and change in circumstances, the pujas consume but a small fraction, that public charitable purposes bulk prominently in the budgeted expenditure and that the sums spent on the she-baits and trustees are liberal enough to exceed prudent reward for services. To set the record straight, it must be stated that a preponderant part of the income was spent on general public charitable causes like poor feeding, art gallery, aviary, menagerie and keeping a garden. Together with the cost of the rituals the budget was dominantly religio-charitable. These facts have no bearing on the construction of the will but invests the perspective with a touch of realism.15. Two paramount background considerations of assistance to decipher the intention of the testator, which have appealed to us, may be mentioned first. We are construing the will of a pious Hindu aristocrat whose faith in ritual performances was more than matched by his ecumenical perspective, whose anxiety for spiritual merit for himself and his manes was balanced by a universal love and compassion. Secondly, the sacred sentiment writ large in the will is his total devotion and surrender to the family deity Sree Jagannathjee,It is trite but true that while the label debutter may not clinch the legal character, there is much in a name, fragrant with profound sentiment and expressive of inner dedication. It looks like doing violence to the heart of the will if we side-step Sree Jagannathjee as the divine dedicatee, down-grade him to the status of but one of the beneficiaries and, by judicial construction, transmit the sanctified estate into human hands as the legal owners to distribute the income, one of the several objects being doing pujas prescribed.17. The will, right in the forefront, declares : I hereby dedicate and make debutter, I do hereby dedicate and make debutter in the name and for the worship of my Thakoor Sree Sree Jagannath Jee the following properties ... I hereby give, dedicate and make debutter all the jewels... to the said Thakoor Sree Sree Jagannathjee. These solemn and emphatic dedicative expressions cannot be wasted words used by an English Solicitor but implementatory of the intention of the donor whose inmost spiritual commitment gathered from the many clauses, appears to be towards his family Thakoor. Of course, if there are the clearest clauses striking a contrary note and creating but a partial debutter, this dedicative diction must bow down. The law is set down thus by B.K. Mukherjea :The fact that property is ordinarily described as Debutter is certainly a piece of evidence in favour of dedication, but, not conclusive. In Binod Behari v. Manmatha Nath 21 Cal LJ 42 Cox J. observed as follows:The fact that the property is called Debutter is a doubtless evidence in the plaintiffs favour but it does not. relieve them of the whole burden of proving that the land was dedicated and is inalienable, (p. 131)Though inconclusive, it carries weight in the light of what we may call the mission of the disposition which is inspired by devotion to my Thakoor and animated by a general religious fulfilment. It must be remembered that the donor was not tied down by bigotry to performance of pujas, important though they were. A more cosmic and liberal view of Hinduism informed his soul and so in his declaration of dedication to Sree Jagannathjee he addressed to the managers many directions of a broadly religious and charitable character. His injunction to feed the poor was Narayana Seva, for worship of God through service of man in a land where the divinity in daridra narayana is conceptually commonplace and, while it is overtly secular. its motive springs from spiritual sources. It is religion to love the poor. Likewise, his insistence on the aviary and the menagerie and throwing open both to the people to see and delight is not a mundane mania but has deeper religious roots. Hinduism worships all creation:1/4k uks vLrq fins k prqkns1/2(Peace be unto all bipeds and even so to all quadrupeds). Indeed, the love of sub-human brethren is high religion. ForHe prayeth best, who loveth best All things both great and small; For the dear God who loveth us, He made and loveth all.(Coleridge, in Ancient Mariner)From the Buddha and Mahavira to St. Francis of Assisi and Gandhiji, compassion for living creatures is a profound religious motivation. The sublime mind of Mullick was obviously in religious sympathy with fellow-beings of the lower order when he showed this tenderness to birds and beasts and shared it with the public. The art gallery too had link with religion in its wider connotation although it is plainer to regard it as a gesture of aesthetics and charitable disposition. God is Truth. Truth is beauty, beauty Truth. A thing of beauty is a joy for ever. In fact, for a highly elevated Indian mind, this conceptual nexus is not far-fetched. The garden and the love of flowers strike a psychic chord at once beautiful and religiously mystical, as any reader of Wordsworth or other great poet in English or Sanskrit will agree. The point is that the multiform dispositions had been united by a spiritual thirst and, if read in their integrality, could be designated religious-cum-charitable. In sum, the primary intendment was to dedicate as debutter and to direct fulfilment of uplifting religious and para-religious purposes, the focus being on worship of Sree Jagannathjee and the fall-out some subsidiary, yet significant, charitable items. The finer note struck by the felt necessities of his soul was divinised and humanised, the central object being Sree Jagannathji, the Lord of the Universe.18. Of course Sri Sen submits that verbalism cannot take us far and the description of debutter can not be decisive because the magnitude of the expenses on the various items, apart from other telling clauses : which (we) will presently advert to, was indicative not of a dedication to the idol but of a general charitable bunch of disposition to be carried out through the agency of trusteeship in the sense of the English instance, he argues that feeding the poor, maintenance of the art gallery, managerie, aviary and gardens and fulfilment of the other charities have little to do with idol qua idol. Moreover, making a substantial margin for the remuneration of the Shebaiti, there is some clear excess in favour of donors family members in the amounts to be paid or spent on behalf of the shebaits-cum-trustees. These are strongly suggestive of a non-debutter character, especially because the cost of the poojas makes but a small bite on the total income. He reinforces the submission by many other points which may be mentioned at this stage. He states that the donor, if he meant a straightforward case of debutter, would have confined himself to the expression shebaits but there was a sedulous combination of shebaits and/or trustees and there was also reference to trusts in some places. Provision for the heirs, for the residence of the shebaitees families, the horse carriages and the like also do not smack of debutter. A specification of the minimum age of 18 to become shebaits and trustees also savours of trusteeship rather than shebaitship. Appointment of a Board of Trustees on shebaits failing in succession throws clear light on the creation of a trust in the English sense rather than a debutter in the Hindu sense.In any case, a fair conclusion, according to Sri Sen, would be to regard the appointees as shebaits for purposes of pooja and management of the shrine and as trustees for the other substantial purposes. Which means that there is a partial debutter and the vesting of the estate in the trustees20. Mr. Sen cited several decisions which are more appropriate to a contest between shebaits and heirs and do not directly bear on rival considerations decisive of the absolute or partial nature of a debutter and so we do not burden this judgment with those many citations but may refer to a few.21. In Har Narayan, 48 Ind App 143 the Judicial Committee was dealing with a case where a dispute was between the heirs and the shebaits and it was held thatalthough a will provides that the property of the testator shall be considered to be the property of a certain idol, the further provisions such as that the residue after defraying the expenses of the temples shall be used by our legal heirs to meet their own expenses, and the circumstances, such as that in the ceremonies to be performed were fixed by the will and would absorb only a small proportion of thetotal income, may indicate that the intention was that the heirs should take the property subject to a charge for the performance of the religious purposes named.Granting the creation of a debutter, the telling tests to decide as between an absolute and partial debutter cannot necessarily be gathered from this ruling. On the other hand, this very ruling emphasized that a substantial part of the income was to go to the legal heirs to meet their own expenses and that circumstance deflected the decision. Moreover, Lord Shaw of Dunfermline, there observed :The case Jadu Nath Singh 44 Ind App 187 merely illustrates the inexpediency of laying down a fixed and general rule applicable to the construction of settlements varying in terms and applying to estates varying in situation.(p. 149)The observations of this Court in Charusila Dasi (1959) Supp 2 SCR 601- a case dealing with the question of legislative competency on the constitutionality of the Bihar Hindu Religious Trusts Act - seem to suggest that the establishment of a hospital for Hindu females and a charitable dispensary for patients of any religion or creed were consistent with the creation of a religious and charitable trust.From a bestowal of reflection on the subject and appraisal in the light of the then conditions, sentiments and motivations of the author, we are inclined to the view that Raja Mullick, the maker of the will, dedicated as debutter to his Maker and Thakoor the entire estate, saddling the human agents or shebaits with duty to apply the income for Godly and near-Godly uses and for reward of the shebaits and for their happy living. Of course, he had horses and carriages and other items to make life enjoyable. Naturally, his behest covered the obligation to keep these costly things in good condition and regular use. The impact on the mind, if one reads the provisions reclining in a chair and lapsing into the mood of the maker of the will, is that he gave all he did to his Thakoor, as he unmincingly said, and thus dedicated to create an absolute debutter. The various directions are mostly either religious or philanthropic but not so remote as to be incongruous with dedication to an idol or creation of a debutter. The quantum of expenditure on the various items is not so decisive of the character of the debutter as absolute or partial as the accent on and subjective importance of the purposes, in the setting of the totality of commands and cherishments. His soulful wishes were for the religious and charitable objects and the other directions were secondary in his estimate Not counting numbers nor computing expenses, marginally relevant though they are, but feeling the pulse of his passion to do Godly good and promote public delight, that be lights the spirit of his testament.Essentially, Raja Rajendra Mullick gave away his estate to his Thakoor and created an absolute debutter. He obligated the managers of the debutter with responsibility to discharge certain secular but secondary behests including benefit to family members, their residence and transportation.We think that the expressions shebaits and trustees, shebaits or trustees, she- baits, trustees, and trusts were indiscriminately used, indifferent to sharp legal semantics and uncertain of the precise import of these English legal terms in the Indian con text. More, an English solicitors familiar legal diction super-imposed on an unfamiliar Indian debutter, rather 1han an exercise in ambiguity or deliberate dubiety, explains the odd expressions in the will. The author merely intended to dedicate to Sree Jagnnnathji and manage through shebaits. Of course, the reference to the Board of Trustees, the majority vote and the like, strike a discordant note but the preponderant intent is what we have held it is.24. The magnitude of the expenditure on the items, secular and sacred, may vaguely affect the conclusion but cannot conclusively decide the issue. The religious uses related to Sree Jagannathji, the Lord of the Universe, cannot be narrowly restricted to rituals but must be spread out to embrace universal good especially when we read the mind of a Hindu highly evolved and committed to a religion whose sweep is vasudhaiva kudumbakam (All creation is His family). The blurred lines between the spiritual and the secular, in the context of this case, do not militate against our construction.If, on a consideration of the totality of terms, on sifting the more essential from the less essential purposes, on sounding the depth of the donors wishes to find whether his family or his deity were the primary beneficiaries and on taking note of the language used, if the vesting is in the idol an absolute debutter can be spelt out. So considered, if .the grant is to the heirs with a charge on the income for the performance of pujas, the opposite inference is inevitable. Before us, there is no dispute between the heirs and the idol. The point mooted is about the creation of an English trust, an unconventional legal step where the dedication is to a deity. On a full study of the will as a whole, we think that this benignant Bengalees testament, draped though in Victorian verbal haberdashery, had, on legal auscultation, the Indian heart-beats of Hindu religious culture, and so scanned, his will intended vesting the properties in absolute debutter. The idol was, therefore, the legal owner of the whole and liable to be assessed as such.28. The respondent, however, has a second string to his bow. Assuming an absolute debutter, there is still many a slip between the lip and the cup, between the income and exigibility to tax. For, while, ordinarily, income accrues in the hands of the owner of property and is taxable as such, it is quite on the cards that in view of the special provisions in the deed of grant certain portions of the income may be tied up for other purposes or persons and may not reach the grantee as his income. By an overriding charge, sums of money may be diverted at the very source to other destinations and only the balance of income may legally be received by the donee as his income. The argument of the respondent is that even if the estate vested in the deity, an assessable entity in our secular system as held in Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, still all the amounts meant to be spent on the shebaits and the members of the family, on the upkeep of horses and carriages and repair of buildings etc., were charged on the income and by paramount provisions, directed to these uses. These sums did not and could not come into the hands of the deity as its income and could not be taxed as such. If the shebaits and trustees collected the income by way of rents and interests, to the extent of these other disbursements they received the amounts merely as collectors of rents etc.; not as receivers of income. Such amounts were free from income tax in the hands of the idol.The leading ruling on the subject is by the Judicial Committee in Bijoy Singh Dudhuria v. Commr. of Income Tax, Calcutta., AIR 1933 PC 145 . Lord Macmillan there observed as follows:Section 3 subjects to charge all income of an individual it is what reaches the individual as income which it is intended to charge. In the present case the decree of the court by charging the appellants whole resources with a specific payment to his step-mother has to that extent diverted his income from him and has directed it to his step-mother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands.(pp. 138-139)30. In The Commissioner of Income Tax, Bombay City II Vs. Shri Sitaldas Tirathdas, this Court referred to many reported decisions some of which we have just mentioned. Mr. Justice Hidayatullah, speaking for the Court, summed up the rule thus (at p. 374):In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it readies the assessee, it is deductible; bet where the income is required to be applied to discharge an obligation after such income reaches the asses-see, the same consequence in law does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable. In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income.31. The High Court, in a laconic paragraph, dismissed this contention but Shri Sen submitted that there was merit in it and had to be accepted. We agree with the High Court because the terms in which the directions are couched do not divert the income at the source but merely command the shebaits to apply the income received from the debutter properties for specified purposes. We may quote to illustrate:I direct that the shebaits and trustees shall out of the Debutter funds maintain and keep a sufficient number of carriages and horses for their use, and comfort and that of their families and after providing for the purposes aforesaid out of the Debutter income I direct the shebaits and Trustees to pay to each of the shebaits for the time being who shall actually take part in the performance of the duties of the shebaits and the execution of the Trusts of this fund as and by way of remuneration for their services the sum of Rupees Five hundred a month....I direct that the widows of my three deceased sons Greendro Sorrendro and Jogendra who assist in the work of preparing articles of offerings to the Thakoors and for the feeding and distribution to the poor and all the widows of shebaits hereby appointed and future shebaits who shall in like manner assist in the said work shall be fed and clothed and maintained and shall receive a remuneration of the sum of Rupees fifty each a month from the income of the debutter fund....So the shebaits first get the income and then apply it in conformity with the directives given in the will. The rulings relied on by both sides do not shake the position we have taken and may not merit discussion. | 1 | 9,619 | 3,955 | ### Instruction:
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step-mother has to that extent diverted his income from him and has directed it to his step-mother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands. (pp. 138-139) A case. in contrast is P. C. Mullick v. Commr. of income tax,. There The testator died in October, 1P31. By his will he appointed the appellants (and another) his executOrs. He directed them to pay his debts out of the income of his property, and to pay Rs. 10,000/- out of the income of his property on the occasion of his Addya Shradh for expenses in connection therewith to the person entitled to perform the Shradh. He also directed his executors to pay out of the income of his property the costs of taking out probate of his will. After conferring out of income benefits on the second wife and his daughter and (out of the estate) benefits on the sons, if any, of his daughter, and after pro viding for the payment out of income gradually of divers sums to some persons, and certain annuities to others, he bequeathed all his remaining property (in the events which happened) to a son taken in adoption after his death by his wife, viz., one Ajit Kumar Ghosh who is still a minor. The payment of the Shradh expenses and the costs of probate were payments made out of the income of the estate coming to the hands of the appellants as executors, and in pursuance of an obligation imposed by their testator. It is not a case like the case of Bijoy Singh Dudhuria v. Commr. of Income Tax, Calcutta., AIR 1933 PC 145 in which a portion of income was by an overriding title diverted from the person who would otherwise have received it. It is simply a case in which the executors having received the whole income of the estate apply a portion in a particular way pursuant to the directions of their testator, in whose shoes they stand. 30. In The Commissioner of Income Tax, Bombay City II Vs. Shri Sitaldas Tirathdas, this Court referred to many reported decisions some of which we have just mentioned. Mr. Justice Hidayatullah, speaking for the Court, summed up the rule thus (at p. 374): In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it readies the assessee, it is deductible; bet where the income is required to be applied to discharge an obligation after such income reaches the asses-see, the same consequence in law does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable. In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income. 31. The High Court, in a laconic paragraph, dismissed this contention but Shri Sen submitted that there was merit in it and had to be accepted. We agree with the High Court because the terms in which the directions are couched do not divert the income at the source but merely command the shebaits to apply the income received from the debutter properties for specified purposes. We may quote to illustrate: I direct that the shebaits and trustees shall out of the Debutter funds maintain and keep a sufficient number of carriages and horses for their use, and comfort and that of their families and after providing for the purposes aforesaid out of the Debutter income I direct the shebaits and Trustees to pay to each of the shebaits for the time being who shall actually take part in the performance of the duties of the shebaits and the execution of the Trusts of this fund as and by way of remuneration for their services the sum of Rupees Five hundred a month.... I direct that the widows of my three deceased sons Greendro Sorrendro and Jogendra who assist in the work of preparing articles of offerings to the Thakoors and for the feeding and distribution to the poor and all the widows of shebaits hereby appointed and future shebaits who shall in like manner assist in the said work shall be fed and clothed and maintained and shall receive a remuneration of the sum of Rupees fifty each a month from the income of the debutter fund.... So the shebaits first get the income and then apply it in conformity with the directives given in the will. The rulings relied on by both sides do not shake the position we have taken and may not merit discussion.
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owner of property and is taxable as such, it is quite on the cards that in view of the special provisions in the deed of grant certain portions of the income may be tied up for other purposes or persons and may not reach the grantee as his income. By an overriding charge, sums of money may be diverted at the very source to other destinations and only the balance of income may legally be received by the donee as his income. The argument of the respondent is that even if the estate vested in the deity, an assessable entity in our secular system as held in Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, still all the amounts meant to be spent on the shebaits and the members of the family, on the upkeep of horses and carriages and repair of buildings etc., were charged on the income and by paramount provisions, directed to these uses. These sums did not and could not come into the hands of the deity as its income and could not be taxed as such. If the shebaits and trustees collected the income by way of rents and interests, to the extent of these other disbursements they received the amounts merely as collectors of rents etc.; not as receivers of income. Such amounts were free from income tax in the hands of the idol.The leading ruling on the subject is by the Judicial Committee in Bijoy Singh Dudhuria v. Commr. of Income Tax, Calcutta., AIR 1933 PC 145 . Lord Macmillan there observed as follows:Section 3 subjects to charge all income of an individual it is what reaches the individual as income which it is intended to charge. In the present case the decree of the court by charging the appellants whole resources with a specific payment to his step-mother has to that extent diverted his income from him and has directed it to his step-mother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands.(pp. 138-139)30. In The Commissioner of Income Tax, Bombay City II Vs. Shri Sitaldas Tirathdas, this Court referred to many reported decisions some of which we have just mentioned. Mr. Justice Hidayatullah, speaking for the Court, summed up the rule thus (at p. 374):In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it readies the assessee, it is deductible; bet where the income is required to be applied to discharge an obligation after such income reaches the asses-see, the same consequence in law does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable. In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income.31. The High Court, in a laconic paragraph, dismissed this contention but Shri Sen submitted that there was merit in it and had to be accepted. We agree with the High Court because the terms in which the directions are couched do not divert the income at the source but merely command the shebaits to apply the income received from the debutter properties for specified purposes. We may quote to illustrate:I direct that the shebaits and trustees shall out of the Debutter funds maintain and keep a sufficient number of carriages and horses for their use, and comfort and that of their families and after providing for the purposes aforesaid out of the Debutter income I direct the shebaits and Trustees to pay to each of the shebaits for the time being who shall actually take part in the performance of the duties of the shebaits and the execution of the Trusts of this fund as and by way of remuneration for their services the sum of Rupees Five hundred a month....I direct that the widows of my three deceased sons Greendro Sorrendro and Jogendra who assist in the work of preparing articles of offerings to the Thakoors and for the feeding and distribution to the poor and all the widows of shebaits hereby appointed and future shebaits who shall in like manner assist in the said work shall be fed and clothed and maintained and shall receive a remuneration of the sum of Rupees fifty each a month from the income of the debutter fund....So the shebaits first get the income and then apply it in conformity with the directives given in the will. The rulings relied on by both sides do not shake the position we have taken and may not merit discussion.
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Thvl Bombay Ammonia Pvt. Ltd Vs. State Of Tamil Nadu | to the scope of the revisional power :-"The Deputy Commissioner is hereby invested with power to satisfy himself about the legality or propriety of any order passed or proceeding recorded by any officer subordinate to him, or the regularity of any proceeding of such officer, and to pass such orders with respect thereto as he thinks fit. For exercising this power, he may suo motu or on application call for and examine the record of any proceedings or order. There is not doubt that the revising authority may only call for the record of the order or the proceeding and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding. But there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularly in the proceedings, he cannot make or direct any further enquiry ..... It is, therefore, not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction the Deputy Commissioner must in all cases be restricted to the record maintained by the officer subordinate to him, and can never make enquiry outside that record. Jurisdiction to revise the order or proceeding of a subordinate officer has to be exercised for the purpose of rectifying any illegality or impropriety of the order or irregularity in the proceeding.13. The limitations to which the revisional power is subject were indicated by the majority thus :-"It would not invest the revising authority with power to launch upon enquiries at large so as to trench upon the powers which are expressly reserved by the Act or by the Rules to other authorities or to ignore limitations inherent in the exercise of those powers. For instance, the power to reassess escaped turnover is primarily vested by Rule 17 in the assessing officer and is to be exercised subject to certain limitations, and the revising authority will not be competent to make an enquiry for reassessing a taxpayer. Similarly, the power to make a best-judgment assessment is vested by section 9(2)(b) in the assessing authority and has to be exercised in the manner provided. It would be open to the revising authority to assume that power."14. The above view was affirmed by this Court in the case of Swastik Oil Mills Ltd. In regard to the limitations to which the revisional power is subject, this Court went on in that case to observe :-"In fact, when a revisional power is to be exercised, we think that the only limitations, to which that power is subject, are those indicated by this Court in K. M. Cheria Abdulla & Co.s case (1). These limitations are that the revising authority should not trench upon the powers which are expressly reserved by the Acts or by the Rules to other authorities and should not ignore the limitations inherent in the exercise of those powers."15. In view of the above, we are of opinion that the suo motu power of revision of the Deputy Commissioner is of wide amplitude and can be exercised in favour of the revenue as well as the taxpayer in order to correct any error or illegality committed by the assessing authority in his order of assessment.16. With regard to the second question relating to the refusal by the Deputy Commissioner to exercise his revisional power in favour of the appellants, we are of the view that the order does not suffer from any infirmity. It is true that money paid under a mistake of law common both to the assessee and the taxing authority can be got refunded (see the decision of this court in State of Kerala v. Aluminium Industries Ltd. But, in the instant case, the appellants themselves submitted a return showing taxable turnover of Rs. 6, 41, 031.77. At no stage of the assessment proceedings before the assessing authority did they bring it to his notice that a substantial portion of the turnover related to works contracts and was as such except from liability to tax. The appellants not having raised the question by claiming the exemption, the assessing authority had no occasion to consider it. It cannot, therefore, be said that the order of assessment suffered from any illegality. It is also significant that the appellants acquiesced in the order of assessment passed by the assessing authority and did not prefer any appeal against it nor did they take any other step to have it modified. Even in the objections filed by them to the show-cause notice issued by the Deputy Commissioner in regard to the levy of penalty, they made a halfhearted attempt to claim exemption. It will be relevant in this connection to advert to the prayer made by them which is couched in the following terms :"In the circumstances we request you that the Deputy Commissioner may either totally drop the proposal to levy penalty or in the alternative totally cure the illegality of the assessment and render justice."17. The plea put fort by the appellants that they did not claim exemption under the mistaken impression that the transactions amounted to sale of goods cannot also be countenanced in view of the fact that so far back as in 1954 it was held by the Madras High Court in Gannon Dunkerley and Co. Ltd. vs. State of Madras that works contracts did not involve any element of sale of materials and the levy of sales tax thereon was unlawful. This ruling was affirmed by this Court in State of Madras v. Gannon Dunkerley and Co. Ltd. We are, therefore, of the view that the Deputy Commissioner rightly refused to exercise his revisional jurisdiction in favour of the appellants and the High Court was right in reversing the order of the appellant tribunal in so far as it related to the appellants claim to the aforesaid exemption. | 0[ds]11. The language of this section makes it clear that the suo motu power conferred on the Deputy Commissioner in regard to the order or proceedings specified therein is quite wide and he can, subject to the conditions laid down in sub-sections (2) and (3), exercise the same even at the instance of an assessee who has not filed an appeal against the order for the purpose of rectifying any illegality or impropriety therein.In view of the above, we are of opinion that the suo motu power of revision of the Deputy Commissioner is of wide amplitude and can be exercised in favour of the revenue as well as the taxpayer in order to correct any error or illegality committed by the assessing authority in his order of assessment.16. With regard to the second question relating to the refusal by the Deputy Commissioner to exercise his revisional power in favour of the appellants, we are of the view that the order does not suffer from any infirmity. It is true that money paid under a mistake of law common both to the assessee and the taxing authority can be got refunded (see the decision of this court in State of Kerala v. Aluminium Industries Ltd. But, in the instant case, the appellants themselves submitted a return showing taxable turnover of Rs. 6, 41, 031.77. At no stage of the assessment proceedings before the assessing authority did they bring it to his notice that a substantial portion of the turnover related to works contracts and was as such except from liability to tax. The appellants not having raised the question by claiming the exemption, the assessing authority had no occasion to consider it. It cannot, therefore, be said that the order of assessment suffered from any illegality. It is also significant that the appellants acquiesced in the order of assessment passed by the assessing authority and did not prefer any appeal against it nor did they take any other step to have it modified. Even in the objections filed by them to the show-cause notice issued by the Deputy Commissioner in regard to the levy of penalty, they made a halfhearted attempt to claim exemption. It will be relevant in this connection to advert to the prayer made by them which is couched in the following termsthe circumstances we request you that the Deputy Commissioner may either totally drop the proposal to levy penalty or in the alternative totally cure the illegality of the assessment and render justice.The plea put fort by the appellants that they did not claim exemption under the mistaken impression that the transactions amounted to sale of goods cannot also be countenanced in view of the fact that so far back as in 1954 it was held by the Madras High Court in Gannon Dunkerley and Co. Ltd. vs. State of Madras that works contracts did not involve any element of sale of materials and the levy of sales tax thereon was unlawful. This ruling was affirmed by this Court in State of Madras v. Gannon Dunkerley and Co. Ltd. We are, therefore, of the view that the Deputy Commissioner rightly refused to exercise his revisional jurisdiction in favour of the appellants and the High Court was right in reversing the order of the appellant tribunal in so far as it related to the appellants claim to the aforesaid exemption. | 0 | 2,231 | 601 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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to the scope of the revisional power :-"The Deputy Commissioner is hereby invested with power to satisfy himself about the legality or propriety of any order passed or proceeding recorded by any officer subordinate to him, or the regularity of any proceeding of such officer, and to pass such orders with respect thereto as he thinks fit. For exercising this power, he may suo motu or on application call for and examine the record of any proceedings or order. There is not doubt that the revising authority may only call for the record of the order or the proceeding and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding. But there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularly in the proceedings, he cannot make or direct any further enquiry ..... It is, therefore, not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction the Deputy Commissioner must in all cases be restricted to the record maintained by the officer subordinate to him, and can never make enquiry outside that record. Jurisdiction to revise the order or proceeding of a subordinate officer has to be exercised for the purpose of rectifying any illegality or impropriety of the order or irregularity in the proceeding.13. The limitations to which the revisional power is subject were indicated by the majority thus :-"It would not invest the revising authority with power to launch upon enquiries at large so as to trench upon the powers which are expressly reserved by the Act or by the Rules to other authorities or to ignore limitations inherent in the exercise of those powers. For instance, the power to reassess escaped turnover is primarily vested by Rule 17 in the assessing officer and is to be exercised subject to certain limitations, and the revising authority will not be competent to make an enquiry for reassessing a taxpayer. Similarly, the power to make a best-judgment assessment is vested by section 9(2)(b) in the assessing authority and has to be exercised in the manner provided. It would be open to the revising authority to assume that power."14. The above view was affirmed by this Court in the case of Swastik Oil Mills Ltd. In regard to the limitations to which the revisional power is subject, this Court went on in that case to observe :-"In fact, when a revisional power is to be exercised, we think that the only limitations, to which that power is subject, are those indicated by this Court in K. M. Cheria Abdulla & Co.s case (1). These limitations are that the revising authority should not trench upon the powers which are expressly reserved by the Acts or by the Rules to other authorities and should not ignore the limitations inherent in the exercise of those powers."15. In view of the above, we are of opinion that the suo motu power of revision of the Deputy Commissioner is of wide amplitude and can be exercised in favour of the revenue as well as the taxpayer in order to correct any error or illegality committed by the assessing authority in his order of assessment.16. With regard to the second question relating to the refusal by the Deputy Commissioner to exercise his revisional power in favour of the appellants, we are of the view that the order does not suffer from any infirmity. It is true that money paid under a mistake of law common both to the assessee and the taxing authority can be got refunded (see the decision of this court in State of Kerala v. Aluminium Industries Ltd. But, in the instant case, the appellants themselves submitted a return showing taxable turnover of Rs. 6, 41, 031.77. At no stage of the assessment proceedings before the assessing authority did they bring it to his notice that a substantial portion of the turnover related to works contracts and was as such except from liability to tax. The appellants not having raised the question by claiming the exemption, the assessing authority had no occasion to consider it. It cannot, therefore, be said that the order of assessment suffered from any illegality. It is also significant that the appellants acquiesced in the order of assessment passed by the assessing authority and did not prefer any appeal against it nor did they take any other step to have it modified. Even in the objections filed by them to the show-cause notice issued by the Deputy Commissioner in regard to the levy of penalty, they made a halfhearted attempt to claim exemption. It will be relevant in this connection to advert to the prayer made by them which is couched in the following terms :"In the circumstances we request you that the Deputy Commissioner may either totally drop the proposal to levy penalty or in the alternative totally cure the illegality of the assessment and render justice."17. The plea put fort by the appellants that they did not claim exemption under the mistaken impression that the transactions amounted to sale of goods cannot also be countenanced in view of the fact that so far back as in 1954 it was held by the Madras High Court in Gannon Dunkerley and Co. Ltd. vs. State of Madras that works contracts did not involve any element of sale of materials and the levy of sales tax thereon was unlawful. This ruling was affirmed by this Court in State of Madras v. Gannon Dunkerley and Co. Ltd. We are, therefore, of the view that the Deputy Commissioner rightly refused to exercise his revisional jurisdiction in favour of the appellants and the High Court was right in reversing the order of the appellant tribunal in so far as it related to the appellants claim to the aforesaid exemption.
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11. The language of this section makes it clear that the suo motu power conferred on the Deputy Commissioner in regard to the order or proceedings specified therein is quite wide and he can, subject to the conditions laid down in sub-sections (2) and (3), exercise the same even at the instance of an assessee who has not filed an appeal against the order for the purpose of rectifying any illegality or impropriety therein.In view of the above, we are of opinion that the suo motu power of revision of the Deputy Commissioner is of wide amplitude and can be exercised in favour of the revenue as well as the taxpayer in order to correct any error or illegality committed by the assessing authority in his order of assessment.16. With regard to the second question relating to the refusal by the Deputy Commissioner to exercise his revisional power in favour of the appellants, we are of the view that the order does not suffer from any infirmity. It is true that money paid under a mistake of law common both to the assessee and the taxing authority can be got refunded (see the decision of this court in State of Kerala v. Aluminium Industries Ltd. But, in the instant case, the appellants themselves submitted a return showing taxable turnover of Rs. 6, 41, 031.77. At no stage of the assessment proceedings before the assessing authority did they bring it to his notice that a substantial portion of the turnover related to works contracts and was as such except from liability to tax. The appellants not having raised the question by claiming the exemption, the assessing authority had no occasion to consider it. It cannot, therefore, be said that the order of assessment suffered from any illegality. It is also significant that the appellants acquiesced in the order of assessment passed by the assessing authority and did not prefer any appeal against it nor did they take any other step to have it modified. Even in the objections filed by them to the show-cause notice issued by the Deputy Commissioner in regard to the levy of penalty, they made a halfhearted attempt to claim exemption. It will be relevant in this connection to advert to the prayer made by them which is couched in the following termsthe circumstances we request you that the Deputy Commissioner may either totally drop the proposal to levy penalty or in the alternative totally cure the illegality of the assessment and render justice.The plea put fort by the appellants that they did not claim exemption under the mistaken impression that the transactions amounted to sale of goods cannot also be countenanced in view of the fact that so far back as in 1954 it was held by the Madras High Court in Gannon Dunkerley and Co. Ltd. vs. State of Madras that works contracts did not involve any element of sale of materials and the levy of sales tax thereon was unlawful. This ruling was affirmed by this Court in State of Madras v. Gannon Dunkerley and Co. Ltd. We are, therefore, of the view that the Deputy Commissioner rightly refused to exercise his revisional jurisdiction in favour of the appellants and the High Court was right in reversing the order of the appellant tribunal in so far as it related to the appellants claim to the aforesaid exemption.
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M/S Bharat Steel Tubes Ltd Etc Vs. Ifci Ltd | status given to it under Clause (ii) of Sub-Section (1) of Section 4A thereof and was not, therefore, entitled to invoke the provisions of the SARFAESI Act, 2002, notwithstanding the provisions of Section 5 of the 1993 Act.9. Mr. Dwivedi also pointed out that the fact that the Respondent No.1 Company was no longer a public company under the control of the Central Government, had also been admitted on behalf of the Respondent No.1 before the Delhi High Court in Writ Petition (Civil)4596 of 2006, which would be reflected from the judgment delivered therein on 17th August, 2010. Mr. Dwivedi pointed out that in paragraph 10 of the judgment it had been mentioned by the learned Single Judge that a submission had been advanced on behalf of the Respondent No.1 Company that it was neither substantially financed by the Central Government nor did the Central Government hold any share whatsoever in the Respondent No.1 Company. 10. Mr. K.K. Venugopal, learned Senior Advocate, appearing for the Respondent No.1 Company, on the other hand, contended that Section 5 of the aforesaid Act was in the nature of a saving clause, whereby all matters relating to the Corporation stood wholly transferred in favour of the new Company after its incorporation, including, the status which had been afforded to the Corporation under Clause (ii) of Section 4A(1) of the Companies Act, 1956. Mr. Venugopal submitted that in exercise of the powers conferred by Sub-Section (2) of Section 4A of the aforesaid Act, the Central Government issued Notification No.S.O.98(E) dated 15th February, 1995, specifying the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956, to be a financial institution and, accordingly, amended the Notification issued by the Government of India, Ministry of Law, Justice and Company Affairs (Department of Company Affairs) No.S.O.1329 dated 8th May, 1978, to include the Industrial Finance Corporation of India Limited in the said notification.11. Mr. Venugopal urged that the mere fact that the Respondent No.1 Company was no longer under the control of the Central Government did not affect or alter its status under Section 4A(1)(ii) of the Companies Act, 1956, as a public financial institution and that, in effect, more than 4,000 cases filed by the Respondent No.1 Company in its capacity as a public financial institution were pending and would be rendered infructuous if the interpretation being sought to be given on behalf of the Petitioner in relation to the status of the Respondent No.1 Company was to be accepted. 12. Having regard to the large number of cases filed by the Respondent No.2 Company, in its capacity as a public financial institution, which are said to be pending, we have given our anxious consideration to the submissions advanced on behalf of the respective parties and the provisions of the Companies Act, 1956, and the Industrial Finance Corporation (Transfer of Undertaking and Repeal) Act, 1993. 13. Section 4A of the Companies Act, 1956, as far as the Industrial Finance Corporation of India Limited is concerned, provides as follows :- 4A. Public financial institutions.- "(1) Each of the financial institutions specified in this sub-section shall be regarded, for the purposes of this Act, as a public financial institution, namely:-(i) ..........................................................................................(ii) the Industrial Finance Corporation of India, established under Section 3 of the Industrial Finance Corporation Act, 1948 (7 of 1948);(iii) ..........................................................................................(iv) ..........................................................................................(v) ..........................................................................................(vi) ..........................................................................................(vii) ..........................................................................................(2) Subject to the provisions of sub-section (1) the Central Government may, by notification in the Official Gazette, specify such other institution as it may think fit to be a public financial institution:Provided that no institution shall be so specified unless-(i) it has been established or constituted by or under any Central Act, or(ii) not less than fifty-one per cent, of the paid-up share capital of such institution is held or controlled by the Central Government." 14. In our view, the provisions of Sub-Section (1) of Section 4A stand independent of Sub-Section (2) and the financial institutions named in Sub-Section (1) of Section 4A recognize the financial institutions mentioned therein to be public financial institutions which are not covered by the embargo enforced by the proviso to Sub-Section (2) of the said Section. The proviso controls the width of Sub-Section (2) which refers to the powers of the Central Government to specify by notification in the Official Gazette and subject to the provisions of Sub-Section (1), such other institutions as it may think fit to be a public financial institution. It appears to us that Sub- Section (2) of Section 4A is applicable only to institutions which are not mentioned in Sub-Section (1). It is the latter category of financial institutions to which the proviso applies. In view of Section 4 A(1)(ii) of the Companies Act, 1956, the Industrial Finance Corporation of India was admittedly regarded as a `public financial institution for the purpose of the said Act. The conversion of the Industrial Finance Corporation of India into a Company did not alter its position and status as a financial institution in view of Section 5 of the Industrial Finance Corporation (Transfer of Undertaking and Repeal) Act, 1993, which, as pointed out by Mr. K.K. Venugopal, was in the nature of a saving clause, whereby all matters, including all benefits, relating to the Corporation, stood wholly transferred in favour of the new Company. 15. Mr. Dwivedi has submitted that the Notification dated 15th February, 1995, had been issued under Section 4A(2) of the Companies Act which will have to conform to the proviso thereto. Mr. Dwivedi has contended that both the conditions in the proviso would have to be fulfilled in order to be eligible for being specified as a public financial institution. We are unable to accept such contention in view of the fact that clauses (i) and (ii) are not conjunctive but disjunctive and even though Clause (ii) may not have any application to the Respondent No.1 Company, it was covered by clause (i), since it was constituted under the Companies Act, 1956, which is a Central Act. | 0[ds]14. In ourprovisions of Sub-Section (1) of Section 4A stand independent of Sub-Section (2) and the financial institutions named in Sub-Section (1) of Section 4A recognize the financial institutions mentioned therein to be public financial institutions which are not covered by the embargo enforced by the proviso to Sub-Section (2) of the said Section. The proviso controls the width of Sub-Section (2) which refers to the powers of the Central Government to specify by notification in the Official Gazette and subject to the provisions of Sub-Section (1), such other institutions as it may think fit to be a public financial institution. It appears to us that Sub- Section (2) of Section 4A is applicable only to institutions which are not mentioned in Sub-Section (1). It is the latter category of financial institutions to which the proviso applies. In view of Section 4 A(1)(ii) of the Companies Act, 1956, the Industrial Finance Corporation of India was admittedly regarded as a `public financial institution for the purpose of the said Act. The conversion of the Industrial Finance Corporation of India into a Company did not alter its position and status as a financial institution in view of Section 5 of the Industrial Finance Corporation (Transfer of Undertaking and Repeal) Act, 1993, which, as pointed out by Mr. K.K. Venugopal, was in the nature of a saving clause, whereby all matters, including all benefits, relating to the Corporation, stood wholly transferred in favour of the new Company. | 0 | 2,352 | 292 | ### 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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status given to it under Clause (ii) of Sub-Section (1) of Section 4A thereof and was not, therefore, entitled to invoke the provisions of the SARFAESI Act, 2002, notwithstanding the provisions of Section 5 of the 1993 Act.9. Mr. Dwivedi also pointed out that the fact that the Respondent No.1 Company was no longer a public company under the control of the Central Government, had also been admitted on behalf of the Respondent No.1 before the Delhi High Court in Writ Petition (Civil)4596 of 2006, which would be reflected from the judgment delivered therein on 17th August, 2010. Mr. Dwivedi pointed out that in paragraph 10 of the judgment it had been mentioned by the learned Single Judge that a submission had been advanced on behalf of the Respondent No.1 Company that it was neither substantially financed by the Central Government nor did the Central Government hold any share whatsoever in the Respondent No.1 Company. 10. Mr. K.K. Venugopal, learned Senior Advocate, appearing for the Respondent No.1 Company, on the other hand, contended that Section 5 of the aforesaid Act was in the nature of a saving clause, whereby all matters relating to the Corporation stood wholly transferred in favour of the new Company after its incorporation, including, the status which had been afforded to the Corporation under Clause (ii) of Section 4A(1) of the Companies Act, 1956. Mr. Venugopal submitted that in exercise of the powers conferred by Sub-Section (2) of Section 4A of the aforesaid Act, the Central Government issued Notification No.S.O.98(E) dated 15th February, 1995, specifying the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956, to be a financial institution and, accordingly, amended the Notification issued by the Government of India, Ministry of Law, Justice and Company Affairs (Department of Company Affairs) No.S.O.1329 dated 8th May, 1978, to include the Industrial Finance Corporation of India Limited in the said notification.11. Mr. Venugopal urged that the mere fact that the Respondent No.1 Company was no longer under the control of the Central Government did not affect or alter its status under Section 4A(1)(ii) of the Companies Act, 1956, as a public financial institution and that, in effect, more than 4,000 cases filed by the Respondent No.1 Company in its capacity as a public financial institution were pending and would be rendered infructuous if the interpretation being sought to be given on behalf of the Petitioner in relation to the status of the Respondent No.1 Company was to be accepted. 12. Having regard to the large number of cases filed by the Respondent No.2 Company, in its capacity as a public financial institution, which are said to be pending, we have given our anxious consideration to the submissions advanced on behalf of the respective parties and the provisions of the Companies Act, 1956, and the Industrial Finance Corporation (Transfer of Undertaking and Repeal) Act, 1993. 13. Section 4A of the Companies Act, 1956, as far as the Industrial Finance Corporation of India Limited is concerned, provides as follows :- 4A. Public financial institutions.- "(1) Each of the financial institutions specified in this sub-section shall be regarded, for the purposes of this Act, as a public financial institution, namely:-(i) ..........................................................................................(ii) the Industrial Finance Corporation of India, established under Section 3 of the Industrial Finance Corporation Act, 1948 (7 of 1948);(iii) ..........................................................................................(iv) ..........................................................................................(v) ..........................................................................................(vi) ..........................................................................................(vii) ..........................................................................................(2) Subject to the provisions of sub-section (1) the Central Government may, by notification in the Official Gazette, specify such other institution as it may think fit to be a public financial institution:Provided that no institution shall be so specified unless-(i) it has been established or constituted by or under any Central Act, or(ii) not less than fifty-one per cent, of the paid-up share capital of such institution is held or controlled by the Central Government." 14. In our view, the provisions of Sub-Section (1) of Section 4A stand independent of Sub-Section (2) and the financial institutions named in Sub-Section (1) of Section 4A recognize the financial institutions mentioned therein to be public financial institutions which are not covered by the embargo enforced by the proviso to Sub-Section (2) of the said Section. The proviso controls the width of Sub-Section (2) which refers to the powers of the Central Government to specify by notification in the Official Gazette and subject to the provisions of Sub-Section (1), such other institutions as it may think fit to be a public financial institution. It appears to us that Sub- Section (2) of Section 4A is applicable only to institutions which are not mentioned in Sub-Section (1). It is the latter category of financial institutions to which the proviso applies. In view of Section 4 A(1)(ii) of the Companies Act, 1956, the Industrial Finance Corporation of India was admittedly regarded as a `public financial institution for the purpose of the said Act. The conversion of the Industrial Finance Corporation of India into a Company did not alter its position and status as a financial institution in view of Section 5 of the Industrial Finance Corporation (Transfer of Undertaking and Repeal) Act, 1993, which, as pointed out by Mr. K.K. Venugopal, was in the nature of a saving clause, whereby all matters, including all benefits, relating to the Corporation, stood wholly transferred in favour of the new Company. 15. Mr. Dwivedi has submitted that the Notification dated 15th February, 1995, had been issued under Section 4A(2) of the Companies Act which will have to conform to the proviso thereto. Mr. Dwivedi has contended that both the conditions in the proviso would have to be fulfilled in order to be eligible for being specified as a public financial institution. We are unable to accept such contention in view of the fact that clauses (i) and (ii) are not conjunctive but disjunctive and even though Clause (ii) may not have any application to the Respondent No.1 Company, it was covered by clause (i), since it was constituted under the Companies Act, 1956, which is a Central Act.
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### Explanation:
14. In ourprovisions of Sub-Section (1) of Section 4A stand independent of Sub-Section (2) and the financial institutions named in Sub-Section (1) of Section 4A recognize the financial institutions mentioned therein to be public financial institutions which are not covered by the embargo enforced by the proviso to Sub-Section (2) of the said Section. The proviso controls the width of Sub-Section (2) which refers to the powers of the Central Government to specify by notification in the Official Gazette and subject to the provisions of Sub-Section (1), such other institutions as it may think fit to be a public financial institution. It appears to us that Sub- Section (2) of Section 4A is applicable only to institutions which are not mentioned in Sub-Section (1). It is the latter category of financial institutions to which the proviso applies. In view of Section 4 A(1)(ii) of the Companies Act, 1956, the Industrial Finance Corporation of India was admittedly regarded as a `public financial institution for the purpose of the said Act. The conversion of the Industrial Finance Corporation of India into a Company did not alter its position and status as a financial institution in view of Section 5 of the Industrial Finance Corporation (Transfer of Undertaking and Repeal) Act, 1993, which, as pointed out by Mr. K.K. Venugopal, was in the nature of a saving clause, whereby all matters, including all benefits, relating to the Corporation, stood wholly transferred in favour of the new Company.
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M/S BHARAT COKING COAL LIMITED Vs. SHYAM KISHORE SINGH | the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ). 12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P . Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book. 10. The learned Additional Solicitor General has also relied upon the decision of this Court in the case of Factory Manager Kirloskar Brothers Ltd. vs. Laxman in SLP (C) Nos.2592-2593/2018 dated 25.04.2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in the case of M/s Eastern Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors. in C.A.No.7724 of 2011 dated 27.05.2019 wherein this Court has held as hereunder: Nothing is on record that in the year 1987 when the opportunity was given to Respondent No.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent No.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue. The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent No.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier. 11. The learned counsel for the respondent, on the other hand, has relied upon the decision of this Court relating the very same employer namely, the appellants herein in the case of Bharat Coking Coal Ltd. & Ors. vs. Chhota Birasa Uranw (2014) 12 SCC 570 wherein this Court with reference to the earlier decisions of this Court has upheld the order of the High Court wherein a direction had been issued to effect the change in the date of birth. Having perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, fathers name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him. 12. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified. 13. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable. | 1[ds]6. The fact that the respondent had joined the services of the appellants on 01.03.1982 is the accepted position. Though the respondent relies on the matriculation certificate to indicate that the date of birth stated therein is 20.01.1955, there is no material on record to indicate that the said document had been produced before the employer at the time of joining employment. In that background, the service record maintained by the appellants will disclose that the date of birth indicated in the document is 04.03.1950 which had been furnished by the respondent himself as the relevant forms under his signature contain the said date. Though the learned counsel for the respondent contended that the High Court had noticed certain alteration of the date of birth as indicated in Form B the relevance of the said document cannot be considered without reference to the other documents in the service records. The very fact that the respondent through his representation made in the year 2009 was seeking for change of the entry relating to date of birth will indicate that what was contained in the service records is 04.03.1950, which was the position from 27.02.1982Though such reference is made, in our opinion, the same was not appropriate in the present facts when three decades had elapsed from the date of employment. The position is well established that if a particular date of birth is entered in the service register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service. In the instant facts the position is that the respondent entered service on 01.03.1982. The date of birth entered as 04.03.1950 has remained on record from the said date. The requirement to submit the nomination form indicating the particulars of the family and the nominee was complied and it was submitted by the respondent on 25.05.1998. In the said Nomination Form the date of birth of the employee was required to be mentioned, wherein the respondent in his own handwriting has indicated the date of birth as 04.03.19508. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainableHaving perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, fathers name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him12. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified13. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable. | 1 | 3,416 | 794 | ### Instruction:
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the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ). 12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P . Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book. 10. The learned Additional Solicitor General has also relied upon the decision of this Court in the case of Factory Manager Kirloskar Brothers Ltd. vs. Laxman in SLP (C) Nos.2592-2593/2018 dated 25.04.2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in the case of M/s Eastern Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors. in C.A.No.7724 of 2011 dated 27.05.2019 wherein this Court has held as hereunder: Nothing is on record that in the year 1987 when the opportunity was given to Respondent No.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent No.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue. The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent No.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier. 11. The learned counsel for the respondent, on the other hand, has relied upon the decision of this Court relating the very same employer namely, the appellants herein in the case of Bharat Coking Coal Ltd. & Ors. vs. Chhota Birasa Uranw (2014) 12 SCC 570 wherein this Court with reference to the earlier decisions of this Court has upheld the order of the High Court wherein a direction had been issued to effect the change in the date of birth. Having perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, fathers name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him. 12. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified. 13. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable.
### Response:
1
### Explanation:
6. The fact that the respondent had joined the services of the appellants on 01.03.1982 is the accepted position. Though the respondent relies on the matriculation certificate to indicate that the date of birth stated therein is 20.01.1955, there is no material on record to indicate that the said document had been produced before the employer at the time of joining employment. In that background, the service record maintained by the appellants will disclose that the date of birth indicated in the document is 04.03.1950 which had been furnished by the respondent himself as the relevant forms under his signature contain the said date. Though the learned counsel for the respondent contended that the High Court had noticed certain alteration of the date of birth as indicated in Form B the relevance of the said document cannot be considered without reference to the other documents in the service records. The very fact that the respondent through his representation made in the year 2009 was seeking for change of the entry relating to date of birth will indicate that what was contained in the service records is 04.03.1950, which was the position from 27.02.1982Though such reference is made, in our opinion, the same was not appropriate in the present facts when three decades had elapsed from the date of employment. The position is well established that if a particular date of birth is entered in the service register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service. In the instant facts the position is that the respondent entered service on 01.03.1982. The date of birth entered as 04.03.1950 has remained on record from the said date. The requirement to submit the nomination form indicating the particulars of the family and the nominee was complied and it was submitted by the respondent on 25.05.1998. In the said Nomination Form the date of birth of the employee was required to be mentioned, wherein the respondent in his own handwriting has indicated the date of birth as 04.03.19508. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainableHaving perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, fathers name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him12. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified13. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable.
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RELIANCE INFRASTRUCTURE LIMITED Vs. STATE OF MAHARASHTRA | by para 5.3(h)(2). This submission will not, however, carry the case of the appellant any further. Normative levels are those which are fixed by the application of the standards guided by the terms of the tariff policy while actual levels are those which have been achieved as a matter of fact, in the past. The emphasis in the tariff policy is on creating incentives for achieving higher efficiency in order to enable the ultimate consumer to have the benefit of efficient operations.30. Tariff fixation is a complex exercise involving a careful balance between numerous considerations. The “shall be guided” prescription under Section 61 requires the appropriate commission to bear those considerations in mind. Deducing past performance on the basis of historical data, balancing diverse policy objectives and evaluating the comparative weight to be ascribed to the interests of stakeholders is a scientific exercise which is carried out by the commission. The nature of judicial review that is exercisable in a given subject area depends in a significant measure on the nature of the area and the body which is entrusted with the task of framing subordinate legislation. In Transmission Corporation of Andhra Pradesh Ltd. v Sai Renewable Power Pvt. Ltd., (2011) 11 SCC 34 a two judge Bench of this Court held thus:“17. Fixation of tariff is, primarily, a function to be performed by the statutory authority in furtherance to the provisions of the relevant laws. We have already noticed that fixation of tariff is a statutory function as specified under the provisions of the Reform Act, 1998, Electricity Regulatory Commissions Act, 1998 and the Electricity Act, 2003. These functions are required to be performed by the expert bodies to whom the job is assigned under the law… The functions assigned to the Regulatory Commission are wide enough to specifically impose an obligation on the Regulatory Commission to determine the tariff. The specialized performance of functions that are assigned to Regulatory Commission can hardly be assumed by any other authority and particularly, the Courts in exercise of their judicial discretion. The Tribunal constituted under the provisions of the Electricity Act, 2003, again being a specialized body, is expected to examine such issues, but this Court in exercise of its powers under Article 136 of the Constitution would not sit as an appellate authority over the formation of opinion and determination of tariff by the specialized bodies.18. …This Court has consistently taken the view that it would not be proper for the Court to examine the fixation of tariff rates or its revision as these matters are policy matters outside the purview of judicial intervention. The only explanation for judicial intervention in tariff fixation/revision is where the person aggrieved can show that the tariff fixation was illegal, arbitrary or ultra vires the Act. It would be termed as illegal if statutorily prescribed procedure is not followed or it is so perverse and arbitrary that it hurts the judicial ‘conscience’ of the Court making it necessary for the Court to intervene. Even in these cases the scope of jurisdiction is a very limited one.”MERC is an expert body which is entrusted with the duty and function to frame regulations, including the terms and conditions for the determination of tariff. The Court, while exercising its power of judicial review, can step in where a case of manifest unreasonableness or arbitrariness is made out. Similarly, where the delegate of the legislature has failed to follow statutory procedures or to take into account factors which it is mandated by the statute to consider or has founded its determination of tariffs on extraneous considerations, the Court in the exercise of its power of judicial review will ensure that the statute is not breached. However, it is no part of the function of the Court to substitute its own determination for a determination which was made by an expert body after due consideration of material circumstances. In Association of Industrial Electricity Users v State of Andhra Pradesh, (2002) 3 SCC 711 a three judge Bench of this Court dealt with the fixation of tariffs and held thus:“11. We also agree with the High Court that the judicial review in a matter with regard to fixation of tariff has not to be as that of an Appellate Authority in exercise of its jurisdiction under Article 226 of the Constitution. All that the High Court has to be satisfied with is that the Commission has followed the proper procedure and unless it can be demonstrated that its decision is on the face of it arbitrary or illegal or contrary to the Act, the court will not interfere. Fixing a tariff and providing for cross- subsidy is essentially a matter of policy and normally a court would refrain from interfering with a policy decision unless the power exercised is arbitrary or ex facie bad in law.”31. We commenced our discussion by emphasising, in our prefatory observations, that the power to frame regulations is of a legislative nature. The CPRI report was an input before the MERC in carrying out that exercise. MERC followed the statutory procedures laid down for the determination of tariffs. It took into account factors which it is mandated by the statute to consider. The national tariff policy, suggestions of stakeholders as well as the assessment carried out by the CPRI were duly considered. Hence, the present case does not fall in the paradigm of manifest unreasonableness or arbitrariness to warrant the interference of this Court. It would be rather formulaic for the Court to accept that merely because DTPS was placed at par in the immediately previous period (2006-07) and the period immediately succeeding (2016-20), that this must necessarily be extrapolated to the intervening period governed by the MYT Regulations 2011. A body which is entrusted with the task of framing subordinate legislation has a range of options including policy options. If on an appraisal of all the guiding principles, it has chosen a particular line of logic or rationale, this Court ought not to interfere. | 0[ds]18. On the maintainability of the petition under Article 226, the High Court, in our view, has overlooked the position in law established by the judgment of a Constitution Bench of this Court in PTC India Limited v Central Electricity Regulatory Commission (2010) 4 SCC 603 . The Constitution Bench considered whether the Appellate Tribunal for Electricity has jurisdiction to decide upon the validity of the regulations framed by the Central Electricity Regulatory Commission. CERC has been entrusted with the power to frame regulations under Section 178 of the Electricity Act 2003. The Constitution Bench held that the validity of a regulation framed under Section 178 can be tested only before the court exercising judicial review. While the Tribunal may decide upon a dispute involving the interpretation of a regulation, for which an appeal under Section 111 would be maintainable, no appeal can lie before the Tribunal on the validity of a regulation.the above principles emerge in the context of regulations framed under Section 178 by the CERC, the logic of the judgment extends to the regulations framed under Section 181 by the State Electricity Regulatory Commissions. In view of the legal position settled by the Constitution Bench, we are of the clear view that the High Court was not justified in disparaging the appellant for taking recourse to a constitutional remedy under Article 226. Indeed, a challenge to the validity of the regulations framed by the MERC could only lie before the High Court. Hence, the imposition of costs for having adopted the remedy under Article 226 was unjustified. There was no suppression of fact on the part of the appellant which had indicated the recourse it had taken in the appeal before the Tribunal, arising from its prayer for relaxation of the SHR norms before MERC. The plea before the Appellate Tribunal was for relaxation of the SHR norms. The plea before the High Court was that the SHR fixed was discriminatory and ultra vires. Undoubtedly, if the appellant were to succeed before the Tribunal, it would perhaps obviate the challenge in the High Court. The appellant, as learned Senior Counsel informed the court, did not press ahead with its plea before the Tribunal. Hence, the writ petition could not have been held not to be maintainable.19. The High Court has dealt with the merits of the challenge to the validity of the regulations. The constitutional validity of Regulation 44.2(d) of the Tariff Regulations 2011 is the subject of the challenge in these proceedings. The basic challenge which has been addressed before the Court is founded on a plea of discrimination.24. The national tariff policy has multi-faceted objectives. Significant among them is the need to ensure to consumers the availability of electricity at reasonable and competitive rates. The policy also seeks to ensure the financial viability of the sector and underlines the need to attract investments. A financially sustainable electricity sector is an important facet of the overall regulatory framework. The objectives of the policy emphasise the need to promote transparency, consistency and predictability in regulatory approaches across jurisdictions. The policy emphasises the need to minimise perceptions of regulatory risk. Finally, the policy recognises the need to promote competition, efficiency in operations and improvements in the quality of supply. In designing and formulating the regulatory framework for tariffs, the delegate of the legislature has to bring about a balance between the competing goals which the tariff policy incorporates.25. As part of the process, the delegate has to bear in mind the interests of diverse stake holders including consumers and producers. The process of framing tariffs is of equal significance, for it is through the procedural framework that norms of consistency, transparency and predictability can be enforced. Competition, efficiency and quality of supply are key components of the policy framework in designing tariffs. Clause 5.3(f) of the tariff policy speaks of the need to evolve performance norms which incorporate incentives and disincentives and provide an appropriate arrangement that fosters the sharing of gains of efficiency in operations with consumers. Operating parameters in tariffs are required to be pegged only on and not at thef normative andsave and except in those cases referred to in paragraph 5.3(h)(2). Paragraph 5.3(h)(2) deals with those cases where operations have been much below the norm for several previous years. In those cases, the initial starting point in determining the revenue requirement and the trajectories are fixed at a relaxed level and not at desired levels. Under clause 5.3(f), the operating norms must fulfil several parameters. They must be (i) efficient; (ii) relatable to past performance; (iii) capable of achievement; and must progressively reflect increased efficiencies. They may also take into consideration latest technological advances, fuel, vintage of equipment, nature of operations, level of service to be provided to consumers, among other factors. Continuous and proven inefficiency has to be controlled and penalised. The operating norms must be designed to promote efficiency and to ensure that the gains which accrue on account of efficient operations are shared with the consumers of electricity. The operating norms will, therefore, have due regard to the performance in the past as well as capacities for future achievement. These must be dovetailed with all relevant considerations, bearing on the requirements of the policy.26. The Tariff policy provides guidance to the appropriate commission when it frames regulations. The power to frame regulations is legislative in nature. It is conferred upon the appropriate commission. The commission weighs numerous factors. Its discretion in carrying out a complex exercise cannot be constrained. The delegate of the legislature is therefore under a mandate to bring about a fair and equitable balance between competing considerations. Standing at the forefront of those considerations is above all the need to ensure efficiency and to protect the interests of consumers. The submission which has been urged on behalf of the appellant would reduce tariff fixation to a rather simplistic process of bringing about equality between generating units which have the same design and manufacturing origin. Such an approach overlooks the complex factors which have to be borne in mind in the determination of tariffs. The submission which has been urged on behalf of the appellant is based on the hypothesis that the CPRI report underlined the similarity of Parli Unit 6, Paras Unit 3, Tata Trombay Unit 8 and the DTPS unit of the appellant. At the highest, the CPRI study would indicate a similarity of specifications but not a similarity of performance. Performance, as we have seen, is a critical element in designing an appropriate SHR. The SHR has an important co-relationship with efficiency.We commenced our discussion by emphasising, in our prefatory observations, that the power to frame regulations is of a legislative nature. The CPRI report was an input before the MERC in carrying out that exercise. MERC followed the statutory procedures laid down for the determination of tariffs. It took into account factors which it is mandated by the statute to consider. The national tariff policy, suggestions of stakeholders as well as the assessment carried out by the CPRI were duly considered. Hence, the present case does not fall in the paradigm of manifest unreasonableness or arbitrariness to warrant the interference of this Court. It would be rather formulaic for the Court to accept that merely because DTPS was placed at par in the immediately previous period (2006-07) and the period immediately succeeding (2016-20), that this must necessarily be extrapolated to the intervening period governed by the MYT Regulations 2011. A body which is entrusted with the task of framing subordinate legislation has a range of options including policy options. If on an appraisal of all the guiding principles, it has chosen a particular line of logic or rationale, this Court ought not to interfere. | 0 | 10,120 | 1,435 | ### 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:
by para 5.3(h)(2). This submission will not, however, carry the case of the appellant any further. Normative levels are those which are fixed by the application of the standards guided by the terms of the tariff policy while actual levels are those which have been achieved as a matter of fact, in the past. The emphasis in the tariff policy is on creating incentives for achieving higher efficiency in order to enable the ultimate consumer to have the benefit of efficient operations.30. Tariff fixation is a complex exercise involving a careful balance between numerous considerations. The “shall be guided” prescription under Section 61 requires the appropriate commission to bear those considerations in mind. Deducing past performance on the basis of historical data, balancing diverse policy objectives and evaluating the comparative weight to be ascribed to the interests of stakeholders is a scientific exercise which is carried out by the commission. The nature of judicial review that is exercisable in a given subject area depends in a significant measure on the nature of the area and the body which is entrusted with the task of framing subordinate legislation. In Transmission Corporation of Andhra Pradesh Ltd. v Sai Renewable Power Pvt. Ltd., (2011) 11 SCC 34 a two judge Bench of this Court held thus:“17. Fixation of tariff is, primarily, a function to be performed by the statutory authority in furtherance to the provisions of the relevant laws. We have already noticed that fixation of tariff is a statutory function as specified under the provisions of the Reform Act, 1998, Electricity Regulatory Commissions Act, 1998 and the Electricity Act, 2003. These functions are required to be performed by the expert bodies to whom the job is assigned under the law… The functions assigned to the Regulatory Commission are wide enough to specifically impose an obligation on the Regulatory Commission to determine the tariff. The specialized performance of functions that are assigned to Regulatory Commission can hardly be assumed by any other authority and particularly, the Courts in exercise of their judicial discretion. The Tribunal constituted under the provisions of the Electricity Act, 2003, again being a specialized body, is expected to examine such issues, but this Court in exercise of its powers under Article 136 of the Constitution would not sit as an appellate authority over the formation of opinion and determination of tariff by the specialized bodies.18. …This Court has consistently taken the view that it would not be proper for the Court to examine the fixation of tariff rates or its revision as these matters are policy matters outside the purview of judicial intervention. The only explanation for judicial intervention in tariff fixation/revision is where the person aggrieved can show that the tariff fixation was illegal, arbitrary or ultra vires the Act. It would be termed as illegal if statutorily prescribed procedure is not followed or it is so perverse and arbitrary that it hurts the judicial ‘conscience’ of the Court making it necessary for the Court to intervene. Even in these cases the scope of jurisdiction is a very limited one.”MERC is an expert body which is entrusted with the duty and function to frame regulations, including the terms and conditions for the determination of tariff. The Court, while exercising its power of judicial review, can step in where a case of manifest unreasonableness or arbitrariness is made out. Similarly, where the delegate of the legislature has failed to follow statutory procedures or to take into account factors which it is mandated by the statute to consider or has founded its determination of tariffs on extraneous considerations, the Court in the exercise of its power of judicial review will ensure that the statute is not breached. However, it is no part of the function of the Court to substitute its own determination for a determination which was made by an expert body after due consideration of material circumstances. In Association of Industrial Electricity Users v State of Andhra Pradesh, (2002) 3 SCC 711 a three judge Bench of this Court dealt with the fixation of tariffs and held thus:“11. We also agree with the High Court that the judicial review in a matter with regard to fixation of tariff has not to be as that of an Appellate Authority in exercise of its jurisdiction under Article 226 of the Constitution. All that the High Court has to be satisfied with is that the Commission has followed the proper procedure and unless it can be demonstrated that its decision is on the face of it arbitrary or illegal or contrary to the Act, the court will not interfere. Fixing a tariff and providing for cross- subsidy is essentially a matter of policy and normally a court would refrain from interfering with a policy decision unless the power exercised is arbitrary or ex facie bad in law.”31. We commenced our discussion by emphasising, in our prefatory observations, that the power to frame regulations is of a legislative nature. The CPRI report was an input before the MERC in carrying out that exercise. MERC followed the statutory procedures laid down for the determination of tariffs. It took into account factors which it is mandated by the statute to consider. The national tariff policy, suggestions of stakeholders as well as the assessment carried out by the CPRI were duly considered. Hence, the present case does not fall in the paradigm of manifest unreasonableness or arbitrariness to warrant the interference of this Court. It would be rather formulaic for the Court to accept that merely because DTPS was placed at par in the immediately previous period (2006-07) and the period immediately succeeding (2016-20), that this must necessarily be extrapolated to the intervening period governed by the MYT Regulations 2011. A body which is entrusted with the task of framing subordinate legislation has a range of options including policy options. If on an appraisal of all the guiding principles, it has chosen a particular line of logic or rationale, this Court ought not to interfere.
### Response:
0
### Explanation:
prayer for relaxation of the SHR norms before MERC. The plea before the Appellate Tribunal was for relaxation of the SHR norms. The plea before the High Court was that the SHR fixed was discriminatory and ultra vires. Undoubtedly, if the appellant were to succeed before the Tribunal, it would perhaps obviate the challenge in the High Court. The appellant, as learned Senior Counsel informed the court, did not press ahead with its plea before the Tribunal. Hence, the writ petition could not have been held not to be maintainable.19. The High Court has dealt with the merits of the challenge to the validity of the regulations. The constitutional validity of Regulation 44.2(d) of the Tariff Regulations 2011 is the subject of the challenge in these proceedings. The basic challenge which has been addressed before the Court is founded on a plea of discrimination.24. The national tariff policy has multi-faceted objectives. Significant among them is the need to ensure to consumers the availability of electricity at reasonable and competitive rates. The policy also seeks to ensure the financial viability of the sector and underlines the need to attract investments. A financially sustainable electricity sector is an important facet of the overall regulatory framework. The objectives of the policy emphasise the need to promote transparency, consistency and predictability in regulatory approaches across jurisdictions. The policy emphasises the need to minimise perceptions of regulatory risk. Finally, the policy recognises the need to promote competition, efficiency in operations and improvements in the quality of supply. In designing and formulating the regulatory framework for tariffs, the delegate of the legislature has to bring about a balance between the competing goals which the tariff policy incorporates.25. As part of the process, the delegate has to bear in mind the interests of diverse stake holders including consumers and producers. The process of framing tariffs is of equal significance, for it is through the procedural framework that norms of consistency, transparency and predictability can be enforced. Competition, efficiency and quality of supply are key components of the policy framework in designing tariffs. Clause 5.3(f) of the tariff policy speaks of the need to evolve performance norms which incorporate incentives and disincentives and provide an appropriate arrangement that fosters the sharing of gains of efficiency in operations with consumers. Operating parameters in tariffs are required to be pegged only on and not at thef normative andsave and except in those cases referred to in paragraph 5.3(h)(2). Paragraph 5.3(h)(2) deals with those cases where operations have been much below the norm for several previous years. In those cases, the initial starting point in determining the revenue requirement and the trajectories are fixed at a relaxed level and not at desired levels. Under clause 5.3(f), the operating norms must fulfil several parameters. They must be (i) efficient; (ii) relatable to past performance; (iii) capable of achievement; and must progressively reflect increased efficiencies. They may also take into consideration latest technological advances, fuel, vintage of equipment, nature of operations, level of service to be provided to consumers, among other factors. Continuous and proven inefficiency has to be controlled and penalised. The operating norms must be designed to promote efficiency and to ensure that the gains which accrue on account of efficient operations are shared with the consumers of electricity. The operating norms will, therefore, have due regard to the performance in the past as well as capacities for future achievement. These must be dovetailed with all relevant considerations, bearing on the requirements of the policy.26. The Tariff policy provides guidance to the appropriate commission when it frames regulations. The power to frame regulations is legislative in nature. It is conferred upon the appropriate commission. The commission weighs numerous factors. Its discretion in carrying out a complex exercise cannot be constrained. The delegate of the legislature is therefore under a mandate to bring about a fair and equitable balance between competing considerations. Standing at the forefront of those considerations is above all the need to ensure efficiency and to protect the interests of consumers. The submission which has been urged on behalf of the appellant would reduce tariff fixation to a rather simplistic process of bringing about equality between generating units which have the same design and manufacturing origin. Such an approach overlooks the complex factors which have to be borne in mind in the determination of tariffs. The submission which has been urged on behalf of the appellant is based on the hypothesis that the CPRI report underlined the similarity of Parli Unit 6, Paras Unit 3, Tata Trombay Unit 8 and the DTPS unit of the appellant. At the highest, the CPRI study would indicate a similarity of specifications but not a similarity of performance. Performance, as we have seen, is a critical element in designing an appropriate SHR. The SHR has an important co-relationship with efficiency.We commenced our discussion by emphasising, in our prefatory observations, that the power to frame regulations is of a legislative nature. The CPRI report was an input before the MERC in carrying out that exercise. MERC followed the statutory procedures laid down for the determination of tariffs. It took into account factors which it is mandated by the statute to consider. The national tariff policy, suggestions of stakeholders as well as the assessment carried out by the CPRI were duly considered. Hence, the present case does not fall in the paradigm of manifest unreasonableness or arbitrariness to warrant the interference of this Court. It would be rather formulaic for the Court to accept that merely because DTPS was placed at par in the immediately previous period (2006-07) and the period immediately succeeding (2016-20), that this must necessarily be extrapolated to the intervening period governed by the MYT Regulations 2011. A body which is entrusted with the task of framing subordinate legislation has a range of options including policy options. If on an appraisal of all the guiding principles, it has chosen a particular line of logic or rationale, this Court ought not to interfere.
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C.I.T., U.P Vs. Bankey Lal Vaidya (Dead) By L.R.S | of March 1946 x x x x and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place:Provided x x xProvided further x x xProvided further that any transfer of capital assets x x x on the dissolution of a firm or other association of persons, x x x shall not, for the purposes of this section, be treated as sale, exchange or transfer of the capital assets;x x x x"Liability to pay tax on capital gains arises under S. 12-B (1) if there be a sale, exchange or transfer of capital assets. There was no sale or exchange of his share in the capital assets of the firm by the respondent to Shri Devi Sharan Garg. Nor did he transfer his share in the capital assets. The assets of the firm included the goodwill, machinery, furniture, medicines, library and the copyright in respect of certain publications. A large majority of the assets were incapable of physical division, and the partners agreed that the assets be taken over by Devi Sharan Garg at a valuation, and the respondent be vaid his share of the value in money Such an arrangement, in our judgment amounted to a distribution of the assets of the firm on dissolution. There is no clause in the partnership agreement providing for the method of dissolution of the firm or for winding up of its affairs. In the course of dissolution the assets of a firm may be valued and the assets divided between the partners according to their respective shares by allotting the individual assets or paying the money value equivalent thereof. This is a reconginzed method of making up the accounts of a dissolved firm. In that case the receipt of money by a partner is nothing but a receipt of his share in the distributed assets of the firm. The respondent received the money value of his share in the assets of the firm; he did not agree to sell, exchange or transfer his share in the assests of the firm. Payment of the amount agreed to be paid to the respondent under the arrangement of his share was therefore not in consequence of any sale, exchange or transfer of assets.4. To persuade us to take different view, reliance was placed on behalf of the Revenue upon James Anderson v. Commissioner of Income-tax Bombay City (1960) 39 ITR 123 = (AIR 1960 SC 751 ). In that case the assessee held a power of attorney from the executor of a deceased person, in the course of the administration of his estate. He sold certain shares and securities belonging to the deceased for distribution among the legatees. The excess realized by sale was treated by the Income-tax Department as capital gains. The contention of the assessee that since the sale of the shares and securities fell within the purview of the third proviso to S. 12-B (1) it could not be treated as a sale of capital assets within the meaning of S. 12-B (1), was rejected by this Court. This Court observed that the object of the third proviso to S. 12-B (I) in providing that "any distribution of capital assets under a will" shall not be treated as sale, exchange or transfer of capital assets for the purpose of S. 12-B was that as long as there was distribution of capital assets in specie and no sale, there was no transfer for the purposes of that section, but if there was a sale of the capital assets and profits or gains arose therefrom the liability to tax arose, whether the sale was by the administrator or executor or a legatee, and that the expression "distribution of capital assets" in the third proviso to S. 12-B (1) meant distribution in specie and not distribution of sale proceeds. That case has no application. There was no distribution of capital assets between the legatees: the assessee had pursuant to the authority reserved to him from the executor of the deceased person sold the shares and securities, and from the sale of shares and securities capital gains resulted. In the case in hand there is no sale and payment of price, but payment of the value of share under an arrangement for dissolution of the partnership and distribution of the assets. The rights of the parties were adjusted by handing over to one of the partners the entire assets and to the other partner the parties of his share. Such a transaction is not in our judgment a sale, exchange or transfer of assets of the firm.5. In Commissioner of Income-tax Madhya Pradesh, Nagpur and Bhandara v. Dewas Cine Corporation, (1968) 68 ITR 240 - (AIR 1968 SC 676 ) in dealing with the meaning of the expressions "sale" and "sold" as used in S. 10 (2) (vii) of the Income-tax Act, 1922, this Court observed that the expression "sale" in its ordinary meaning is a transfer of property for a price and adjustment of the rights of the partners in a dissolved firm by allotment of its assets is not a transfer for a price. In that case the assets were distributed among the partners and it was contended that the assets must in law be deemed to be sold by the partners to the individual partners. In consideration of their respective shares, and the difference between the written-down value and the price realised should be included in the total income of the partnership under the second proviso to S. 10 (2) (vii). This Court observed that a partner may, it is true, in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but property allotted to a family in satisfaction of his claim to his share, cannot be deemed in law to be sold to him.6. We therefore agree with the High Court that the question referred must be answered in the negative. | 0[ds]Liability to pay tax on capital gains arises under S. 12-B (1) if there be a sale, exchange or transfer of capital assets. There was no sale or exchange of his share in the capital assets of the firm by the respondent to Shri Devi Sharan Garg. Nor did he transfer his share in the capital assets. The assets of the firm included the goodwill, machinery, furniture, medicines, library and the copyright in respect of certain publications. A large majority of the assets were incapable of physical division, and the partners agreed that the assets be taken over by Devi Sharan Garg at a valuation, and the respondent be vaid his share of the value in money Such an arrangement, in our judgment amounted to a distribution of the assets of the firm on dissolution. There is no clause in the partnership agreement providing for the method of dissolution of the firm or for winding up of its affairs. In the course of dissolution the assets of a firm may be valued and the assets divided between the partners according to their respective shares by allotting the individual assets or paying the money value equivalent thereof. This is a reconginzed method of making up the accounts of a dissolved firm. In that case the receipt of money by a partner is nothing but a receipt of his share in the distributed assets of the firm. The respondent received the money value of his share in the assets of the firm; he did not agree to sell, exchange or transfer his share in the assests of the firm. Payment of the amount agreed to be paid to the respondent under the arrangement of his share was therefore not in consequence of any sale, exchange or transfer ofwas no distribution of capital assets between the legatees: the assessee had pursuant to the authority reserved to him from the executor of the deceased person sold the shares and securities, and from the sale of shares and securities capital gains resulted. In the case in hand there is no sale and payment of price, but payment of the value of share under an arrangement for dissolution of the partnership and distribution of the assets. The rights of the parties were adjusted by handing over to one of the partners the entire assets and to the other partner the parties of his share. Such a transaction is not in our judgment a sale, exchange or transfer of assets of theconsideration of their respective shares, and the difference between the written-down value and the price realised should be included in the total income of the partnership under the second proviso to S. 10 (2) (vii). This Court observed that a partner may, it is true, in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but property allotted to a family in satisfaction of his claim to his share, cannot be deemed in law to be sold to him.6. We therefore agree with the High Court that the question referred must be answered in the negative. | 0 | 1,451 | 566 | ### Instruction:
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of March 1946 x x x x and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place:Provided x x xProvided further x x xProvided further that any transfer of capital assets x x x on the dissolution of a firm or other association of persons, x x x shall not, for the purposes of this section, be treated as sale, exchange or transfer of the capital assets;x x x x"Liability to pay tax on capital gains arises under S. 12-B (1) if there be a sale, exchange or transfer of capital assets. There was no sale or exchange of his share in the capital assets of the firm by the respondent to Shri Devi Sharan Garg. Nor did he transfer his share in the capital assets. The assets of the firm included the goodwill, machinery, furniture, medicines, library and the copyright in respect of certain publications. A large majority of the assets were incapable of physical division, and the partners agreed that the assets be taken over by Devi Sharan Garg at a valuation, and the respondent be vaid his share of the value in money Such an arrangement, in our judgment amounted to a distribution of the assets of the firm on dissolution. There is no clause in the partnership agreement providing for the method of dissolution of the firm or for winding up of its affairs. In the course of dissolution the assets of a firm may be valued and the assets divided between the partners according to their respective shares by allotting the individual assets or paying the money value equivalent thereof. This is a reconginzed method of making up the accounts of a dissolved firm. In that case the receipt of money by a partner is nothing but a receipt of his share in the distributed assets of the firm. The respondent received the money value of his share in the assets of the firm; he did not agree to sell, exchange or transfer his share in the assests of the firm. Payment of the amount agreed to be paid to the respondent under the arrangement of his share was therefore not in consequence of any sale, exchange or transfer of assets.4. To persuade us to take different view, reliance was placed on behalf of the Revenue upon James Anderson v. Commissioner of Income-tax Bombay City (1960) 39 ITR 123 = (AIR 1960 SC 751 ). In that case the assessee held a power of attorney from the executor of a deceased person, in the course of the administration of his estate. He sold certain shares and securities belonging to the deceased for distribution among the legatees. The excess realized by sale was treated by the Income-tax Department as capital gains. The contention of the assessee that since the sale of the shares and securities fell within the purview of the third proviso to S. 12-B (1) it could not be treated as a sale of capital assets within the meaning of S. 12-B (1), was rejected by this Court. This Court observed that the object of the third proviso to S. 12-B (I) in providing that "any distribution of capital assets under a will" shall not be treated as sale, exchange or transfer of capital assets for the purpose of S. 12-B was that as long as there was distribution of capital assets in specie and no sale, there was no transfer for the purposes of that section, but if there was a sale of the capital assets and profits or gains arose therefrom the liability to tax arose, whether the sale was by the administrator or executor or a legatee, and that the expression "distribution of capital assets" in the third proviso to S. 12-B (1) meant distribution in specie and not distribution of sale proceeds. That case has no application. There was no distribution of capital assets between the legatees: the assessee had pursuant to the authority reserved to him from the executor of the deceased person sold the shares and securities, and from the sale of shares and securities capital gains resulted. In the case in hand there is no sale and payment of price, but payment of the value of share under an arrangement for dissolution of the partnership and distribution of the assets. The rights of the parties were adjusted by handing over to one of the partners the entire assets and to the other partner the parties of his share. Such a transaction is not in our judgment a sale, exchange or transfer of assets of the firm.5. In Commissioner of Income-tax Madhya Pradesh, Nagpur and Bhandara v. Dewas Cine Corporation, (1968) 68 ITR 240 - (AIR 1968 SC 676 ) in dealing with the meaning of the expressions "sale" and "sold" as used in S. 10 (2) (vii) of the Income-tax Act, 1922, this Court observed that the expression "sale" in its ordinary meaning is a transfer of property for a price and adjustment of the rights of the partners in a dissolved firm by allotment of its assets is not a transfer for a price. In that case the assets were distributed among the partners and it was contended that the assets must in law be deemed to be sold by the partners to the individual partners. In consideration of their respective shares, and the difference between the written-down value and the price realised should be included in the total income of the partnership under the second proviso to S. 10 (2) (vii). This Court observed that a partner may, it is true, in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but property allotted to a family in satisfaction of his claim to his share, cannot be deemed in law to be sold to him.6. We therefore agree with the High Court that the question referred must be answered in the negative.
### Response:
0
### Explanation:
Liability to pay tax on capital gains arises under S. 12-B (1) if there be a sale, exchange or transfer of capital assets. There was no sale or exchange of his share in the capital assets of the firm by the respondent to Shri Devi Sharan Garg. Nor did he transfer his share in the capital assets. The assets of the firm included the goodwill, machinery, furniture, medicines, library and the copyright in respect of certain publications. A large majority of the assets were incapable of physical division, and the partners agreed that the assets be taken over by Devi Sharan Garg at a valuation, and the respondent be vaid his share of the value in money Such an arrangement, in our judgment amounted to a distribution of the assets of the firm on dissolution. There is no clause in the partnership agreement providing for the method of dissolution of the firm or for winding up of its affairs. In the course of dissolution the assets of a firm may be valued and the assets divided between the partners according to their respective shares by allotting the individual assets or paying the money value equivalent thereof. This is a reconginzed method of making up the accounts of a dissolved firm. In that case the receipt of money by a partner is nothing but a receipt of his share in the distributed assets of the firm. The respondent received the money value of his share in the assets of the firm; he did not agree to sell, exchange or transfer his share in the assests of the firm. Payment of the amount agreed to be paid to the respondent under the arrangement of his share was therefore not in consequence of any sale, exchange or transfer ofwas no distribution of capital assets between the legatees: the assessee had pursuant to the authority reserved to him from the executor of the deceased person sold the shares and securities, and from the sale of shares and securities capital gains resulted. In the case in hand there is no sale and payment of price, but payment of the value of share under an arrangement for dissolution of the partnership and distribution of the assets. The rights of the parties were adjusted by handing over to one of the partners the entire assets and to the other partner the parties of his share. Such a transaction is not in our judgment a sale, exchange or transfer of assets of theconsideration of their respective shares, and the difference between the written-down value and the price realised should be included in the total income of the partnership under the second proviso to S. 10 (2) (vii). This Court observed that a partner may, it is true, in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but property allotted to a family in satisfaction of his claim to his share, cannot be deemed in law to be sold to him.6. We therefore agree with the High Court that the question referred must be answered in the negative.
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S.J. Aggarwal Vs. Karji Narayanbhai and Others | PATHAK, J. This appeal by special leave granted by this Court is directed against the judgment and order of the High Court of Bombay allowing a writ petition filed by the respondent.2. The appellant is the owner of a bungalow situated at Dhulia. The bungalow was let out to the respondent. On September 27, 1963 the appellant issued a notice to the respondent terminating this tenancy. It was alleged that the respondent had raised an unauthorised construction and was, therefore, liable to forfeit the tenancy. The appellant then filed a suit for the ejectment of the respondent. The trial Court appointed a Commissioner to report on the question whether an unauthorised construction had been raised. On receipt of the report the trial Court found that no unauthorised construction had been raised by the defendant but that it was the plaintiff who had constructed a trellis work. On appeal by the respondent the decree of the trial Court was reversed by the first appellate court and the suit was decreed on the finding that the respondent had in fact raised an unauthorised construction by converting a shed into a room. The respondent now applied in revision to the High Court, and at some stage the revision petition was permitted to be converted into a writ petition. The High Court went into the evidence on the record and held that the first appellate Court had erred in coming to the finding that the respondent had raised an unauthorised construction. Accordingly, it dismissed the suit.3. In this appeal, the contention of learned counsel for the appellant is that the High Court has erred in entering into the evidence on the record and that it was incompetent to do so in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution. We have heard counsel carefully and we have examined the material before us, and it seems to us that having regard to the interest of justice this Court should not interfere. The order passed by the High court may have erred in point of jurisdiction but we are satisfied that it promotes justice between the parties. Accordingly we decline to interfere. | 0[ds]We have heard counsel carefully and we have examined the material before us, and it seems to us that having regard to the interest of justice this Court should not interfere. The order passed by the High court may have erred in point of jurisdiction but we are satisfied that it promotes justice between the parties. Accordingly we decline to interfere. | 0 | 385 | 69 | ### Instruction:
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PATHAK, J. This appeal by special leave granted by this Court is directed against the judgment and order of the High Court of Bombay allowing a writ petition filed by the respondent.2. The appellant is the owner of a bungalow situated at Dhulia. The bungalow was let out to the respondent. On September 27, 1963 the appellant issued a notice to the respondent terminating this tenancy. It was alleged that the respondent had raised an unauthorised construction and was, therefore, liable to forfeit the tenancy. The appellant then filed a suit for the ejectment of the respondent. The trial Court appointed a Commissioner to report on the question whether an unauthorised construction had been raised. On receipt of the report the trial Court found that no unauthorised construction had been raised by the defendant but that it was the plaintiff who had constructed a trellis work. On appeal by the respondent the decree of the trial Court was reversed by the first appellate court and the suit was decreed on the finding that the respondent had in fact raised an unauthorised construction by converting a shed into a room. The respondent now applied in revision to the High Court, and at some stage the revision petition was permitted to be converted into a writ petition. The High Court went into the evidence on the record and held that the first appellate Court had erred in coming to the finding that the respondent had raised an unauthorised construction. Accordingly, it dismissed the suit.3. In this appeal, the contention of learned counsel for the appellant is that the High Court has erred in entering into the evidence on the record and that it was incompetent to do so in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution. We have heard counsel carefully and we have examined the material before us, and it seems to us that having regard to the interest of justice this Court should not interfere. The order passed by the High court may have erred in point of jurisdiction but we are satisfied that it promotes justice between the parties. Accordingly we decline to interfere.
### Response:
0
### Explanation:
We have heard counsel carefully and we have examined the material before us, and it seems to us that having regard to the interest of justice this Court should not interfere. The order passed by the High court may have erred in point of jurisdiction but we are satisfied that it promotes justice between the parties. Accordingly we decline to interfere.
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Ram Das Vs. State of W.B | floor of the compartment for safety, and then the appellant caught hold of them and embraced them. P.W. 5 deposed that the appellant caught hold of both the ladies, and then they went down to the floor of the compartments. In his examination-in-chief, he said nothing about the appellant embracing the ladies. In cross-examination, however, he deposed that the appellant embraced both the girls from behind. P.W. 6 stated that she and P.W. 9 went down on the floor out of fear and shouted. She did not state in examination-in-chief that they were embraced. In cross-examination, however, she added that she had been embraced. P.W. 9 deposed that the appellant was able to catch hold of P.W. 6 but that she herself was not caught. She does not speak to his embracing even P.W.6. On this evidence, we find it difficult to hold that the incident of embracing has been proved beyond doubt.P. Ws. 1, 5 and 6 also stated that the appellant first removed his coat and belt and put them on the upper berth and then removed his trousers and become a practically naked. But it is admitted by P. Ws. 1 and 6 that he had his underwear, and it is possible that the removal of trousers was with a view to lie on the berth. No inference could therefore be drawn from it that the intention of the appellant was to outrage the modesty of the ladies. We cannot help thinking that the first information report presents an exaggerated account of what really happened. It is also stated that the appellant was starting at the ladies "with lustful eyes". But this impression appears to be more psychological than factual.The story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted.5. The truth appears to be that the appellant who had been travelling from Calcutta in a crowded compartment changed over to the compartment where there were only four passengers with a view to get sleeping accommodation. Finding all the three lower berths occupied, he made an attempt to forcibly occupy the seat on which P.W. 6 was lying with her babe. There was opposition from her, and in overcoming it, the appellant assaulted her.Her cries brought down P. W. 1 from his upper berth and he and P.W. 5 took it up with the appellant and a scuffle ensued. P.W. 9 deposed that while she was asleep, she was roused by the noise of altercation. Then she joined P.W. 6, and both of them ran for safety to the floor of the compartment below the berth. The appellant finding himself attacked by both P.W. 1 and P.W. 5, must have made to stand clutching the two chains attached to the upper berth by his arms and kicking his assailants. That was the scene which was witnesses by the police officers when the alarm chain was pulled and the train stopped at Boinchi. As far as it is possible to reconstruct, that appears to have been the course of events.6. If that is the position, we have no doubt that the appellant cannot be held guilty of an offence under section 354. What he did was with a view to secure a berth for himself and not with a view to outrage the modesty of P.W.6. The proved facts are not sufficient to support an inference that the appellant was actuated by the intention to outrage her modesty.7. This question was not considered by the Courts below from this point of view. It appears to have been assumed that either there was an offence under section 354 or none at all. The point was not considered whether even if the assault was true it was such as would fall under section 354.For this state of affairs, however, the appellant was largely to blame. The line taken on his behalf in cross-examining the prosecution witnesses was that P. Ws. 1 and 5 were not honest escorts of P. Ws. 9 and 6 and that they were having a merry time of it with them a suggestion which appears to be as unfounded as irrelevant. And there cannot be any doubt that, in proceeding on the footing that when once assault is proved, it must be held to fall under S. 354, the courts below were greatly influence by this stand of the appellant. It is in this view that they dismissed the discrepancies generally as of slight moment.Before us, counsel for the appellant did not repeat this suggestion. On the other hand, he relied on the statement of the accused under section 342 wherein he stated that when he got into the compartment he was abused by the passengers in a language which he did not understand and was assaulted. No suggestion was made in this statement that there was anything improper in the association of P. Ws.1 and 9 or P. Ws. 5 and 6. We have accordingly come to the conclusion that while the appellant was undoubtedly guilty of having assaulted P.W.6 it cannot be held that he did so with intent to outrage her modesty, or with the knowledge that it would outraged. We, therefore, acquitted the appellant of the charge under section 354, and substitute therefore a conviction under section 352 for assault.8. Coming next to the sentence, it must be noted that the appellant is a railway officer of some status, and as such it was his duty to behave fairly and courteously to passengers. His conduct in forcibly trying to occupy the seat occupied by P.W.6 and her babe and assaulting her when she resisted, calls for censure, and he has added insult to injury in casting aspersions on the character of P. Ws. 6 and 9. Under the circumstances, we must award the maximum sentence permissible under section 352. We accordingly sentence him to three months rigorous imprisonment. | 1[ds]Indeed, counsel for the appellant did not seriously challenge the correctness of the finding of the courts below that the appellant did assault P.W.6. He only threw out a suggestion that P.W. 6 might have intervened on the side of P. Ws. 1 and 5 when they were engaged in a scuffle with the appellant and chance blows might have descended on her.This is a wholly gratuitous suggestion, and is opposed to the evidence on the side of the prosecution, and must accordingly be rejected. The finding of the Courts below that the appellant assaulted P.W. 6 must therefore be accepted.4.The next question is whether he did so with intent to outrage her modesty, or with the knowledge that it would be outraged.Having gone through the entire evidence, we are not satisfied that that has been established.The most serious allegation against the appellant on this part of the case is that he forcibly held the two ladies to his breast. The first information report given by P.W. 5 stated that he "in his naked condition clasped both of them on to his breast". The evidence in the case, however, does not bear this out. P.W. 1 stated that the two ladies became frightened at the attitude of the appellant and went down to the floor of the compartment for safety, and then the appellant caught hold of them and embraced them. P.W. 5 deposed that the appellant caught hold of both the ladies, and then they went down to the floor of the compartments. In hishe said nothing about the appellant embracing the ladies. Inhowever, he deposed that the appellant embraced both the girls from behind. P.W. 6 stated that she and P.W. 9 went down on the floor out of fear and shouted. She did not state inthat they were embraced. Inhowever, she added that she had been embraced. P.W. 9 deposed that the appellant was able to catch hold of P.W. 6 but that she herself was not caught. She does not speak to his embracing even P.W.6. On this evidence, we find it difficult to hold that the incident of embracing has been proved beyond doubt.P. Ws. 1, 5 and 6 also stated that the appellant first removed his coat and belt and put them on the upper berth and then removed his trousers and become a practically naked. But it is admitted by P. Ws. 1 and 6 that he had his underwear, and it is possible that the removal of trousers was with a view to lie on the berth. No inference could therefore be drawn from it that the intention of the appellant was to outrage the modesty of the ladies. We cannot help thinking that the first information report presents an exaggerated account of what really happened. It is also stated that the appellant was starting at the ladies "with lustful eyes". But this impression appears to be more psychological than factual.The story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted.5. The truth appears to be that the appellant who had been travelling from Calcutta in a crowded compartment changed over to the compartment where there were only four passengers with a view to get sleeping accommodation. Finding all the three lower berths occupied, he made an attempt to forcibly occupy the seat on which P.W. 6 was lying with her babe. There was opposition from her, and in overcoming it, the appellant assaulted her.Her cries brought down P. W. 1 from his upper berth and he and P.W. 5 took it up with the appellant and a scuffle ensued. P.W. 9 deposed that while she was asleep, she was roused by the noise of altercation. Then she joined P.W. 6, and both of them ran for safety to the floor of the compartment below the berth. The appellant finding himself attacked by both P.W. 1 and P.W. 5, must have made to stand clutching the two chains attached to the upper berth by his arms and kicking his assailants. That was the scene which was witnesses by the police officers when the alarm chain was pulled and the train stopped at Boinchi. As far as it is possible to reconstruct, that appears to have been the course of events.6. If that is the position, we have no doubt that the appellant cannot be held guilty of an offence under section 354. What he did was with a view to secure a berth for himself and not with a view to outrage the modesty of P.W.6. The proved facts are not sufficient to support an inference that the appellant was actuated by the intention to outrage her modesty.7. This question was not considered by the Courts below from this point of view. It appears to have been assumed that either there was an offence under section 354 or none at all. The point was not considered whether even if the assault was true it was such as would fall under sectionhave accordingly come to the conclusion that while the appellant was undoubtedly guilty of having assaulted P.W.6 it cannot be held that he did so with intent to outrage her modesty, or with the knowledge that it would outraged. We, therefore, acquitted the appellant of the charge under section 354, and substitute therefore a conviction under section 352 for assault.8. Coming next to the sentence, it must be noted that the appellant is a railway officer of some status, and as such it was his duty to behave fairly and courteously to passengers. His conduct in forcibly trying to occupy the seat occupied by P.W.6 and her babe and assaulting her when she resisted, calls for censure, and he has added insult to injury in casting aspersions on the character of P. Ws. 6 and 9. Under the circumstances, we must award the maximum sentence permissible under section 352. We accordingly sentence him to three months rigorous imprisonment.9. The appeal will accordingly be allowed to this extent. It is represented to us that the appellant had served about eight months out of the sentence of two years rigourous imprisonment imposed on him by the courts below before he was enlarged on bail by this Court. There could be no question therefore of the appellant being sent again to jail. The only order that has now to be passed is that his bail bond do stand cancelled. | 1 | 1,850 | 1,194 | ### Instruction:
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floor of the compartment for safety, and then the appellant caught hold of them and embraced them. P.W. 5 deposed that the appellant caught hold of both the ladies, and then they went down to the floor of the compartments. In his examination-in-chief, he said nothing about the appellant embracing the ladies. In cross-examination, however, he deposed that the appellant embraced both the girls from behind. P.W. 6 stated that she and P.W. 9 went down on the floor out of fear and shouted. She did not state in examination-in-chief that they were embraced. In cross-examination, however, she added that she had been embraced. P.W. 9 deposed that the appellant was able to catch hold of P.W. 6 but that she herself was not caught. She does not speak to his embracing even P.W.6. On this evidence, we find it difficult to hold that the incident of embracing has been proved beyond doubt.P. Ws. 1, 5 and 6 also stated that the appellant first removed his coat and belt and put them on the upper berth and then removed his trousers and become a practically naked. But it is admitted by P. Ws. 1 and 6 that he had his underwear, and it is possible that the removal of trousers was with a view to lie on the berth. No inference could therefore be drawn from it that the intention of the appellant was to outrage the modesty of the ladies. We cannot help thinking that the first information report presents an exaggerated account of what really happened. It is also stated that the appellant was starting at the ladies "with lustful eyes". But this impression appears to be more psychological than factual.The story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted.5. The truth appears to be that the appellant who had been travelling from Calcutta in a crowded compartment changed over to the compartment where there were only four passengers with a view to get sleeping accommodation. Finding all the three lower berths occupied, he made an attempt to forcibly occupy the seat on which P.W. 6 was lying with her babe. There was opposition from her, and in overcoming it, the appellant assaulted her.Her cries brought down P. W. 1 from his upper berth and he and P.W. 5 took it up with the appellant and a scuffle ensued. P.W. 9 deposed that while she was asleep, she was roused by the noise of altercation. Then she joined P.W. 6, and both of them ran for safety to the floor of the compartment below the berth. The appellant finding himself attacked by both P.W. 1 and P.W. 5, must have made to stand clutching the two chains attached to the upper berth by his arms and kicking his assailants. That was the scene which was witnesses by the police officers when the alarm chain was pulled and the train stopped at Boinchi. As far as it is possible to reconstruct, that appears to have been the course of events.6. If that is the position, we have no doubt that the appellant cannot be held guilty of an offence under section 354. What he did was with a view to secure a berth for himself and not with a view to outrage the modesty of P.W.6. The proved facts are not sufficient to support an inference that the appellant was actuated by the intention to outrage her modesty.7. This question was not considered by the Courts below from this point of view. It appears to have been assumed that either there was an offence under section 354 or none at all. The point was not considered whether even if the assault was true it was such as would fall under section 354.For this state of affairs, however, the appellant was largely to blame. The line taken on his behalf in cross-examining the prosecution witnesses was that P. Ws. 1 and 5 were not honest escorts of P. Ws. 9 and 6 and that they were having a merry time of it with them a suggestion which appears to be as unfounded as irrelevant. And there cannot be any doubt that, in proceeding on the footing that when once assault is proved, it must be held to fall under S. 354, the courts below were greatly influence by this stand of the appellant. It is in this view that they dismissed the discrepancies generally as of slight moment.Before us, counsel for the appellant did not repeat this suggestion. On the other hand, he relied on the statement of the accused under section 342 wherein he stated that when he got into the compartment he was abused by the passengers in a language which he did not understand and was assaulted. No suggestion was made in this statement that there was anything improper in the association of P. Ws.1 and 9 or P. Ws. 5 and 6. We have accordingly come to the conclusion that while the appellant was undoubtedly guilty of having assaulted P.W.6 it cannot be held that he did so with intent to outrage her modesty, or with the knowledge that it would outraged. We, therefore, acquitted the appellant of the charge under section 354, and substitute therefore a conviction under section 352 for assault.8. Coming next to the sentence, it must be noted that the appellant is a railway officer of some status, and as such it was his duty to behave fairly and courteously to passengers. His conduct in forcibly trying to occupy the seat occupied by P.W.6 and her babe and assaulting her when she resisted, calls for censure, and he has added insult to injury in casting aspersions on the character of P. Ws. 6 and 9. Under the circumstances, we must award the maximum sentence permissible under section 352. We accordingly sentence him to three months rigorous imprisonment.
### Response:
1
### Explanation:
the Courts below that the appellant assaulted P.W. 6 must therefore be accepted.4.The next question is whether he did so with intent to outrage her modesty, or with the knowledge that it would be outraged.Having gone through the entire evidence, we are not satisfied that that has been established.The most serious allegation against the appellant on this part of the case is that he forcibly held the two ladies to his breast. The first information report given by P.W. 5 stated that he "in his naked condition clasped both of them on to his breast". The evidence in the case, however, does not bear this out. P.W. 1 stated that the two ladies became frightened at the attitude of the appellant and went down to the floor of the compartment for safety, and then the appellant caught hold of them and embraced them. P.W. 5 deposed that the appellant caught hold of both the ladies, and then they went down to the floor of the compartments. In hishe said nothing about the appellant embracing the ladies. Inhowever, he deposed that the appellant embraced both the girls from behind. P.W. 6 stated that she and P.W. 9 went down on the floor out of fear and shouted. She did not state inthat they were embraced. Inhowever, she added that she had been embraced. P.W. 9 deposed that the appellant was able to catch hold of P.W. 6 but that she herself was not caught. She does not speak to his embracing even P.W.6. On this evidence, we find it difficult to hold that the incident of embracing has been proved beyond doubt.P. Ws. 1, 5 and 6 also stated that the appellant first removed his coat and belt and put them on the upper berth and then removed his trousers and become a practically naked. But it is admitted by P. Ws. 1 and 6 that he had his underwear, and it is possible that the removal of trousers was with a view to lie on the berth. No inference could therefore be drawn from it that the intention of the appellant was to outrage the modesty of the ladies. We cannot help thinking that the first information report presents an exaggerated account of what really happened. It is also stated that the appellant was starting at the ladies "with lustful eyes". But this impression appears to be more psychological than factual.The story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted.5. The truth appears to be that the appellant who had been travelling from Calcutta in a crowded compartment changed over to the compartment where there were only four passengers with a view to get sleeping accommodation. Finding all the three lower berths occupied, he made an attempt to forcibly occupy the seat on which P.W. 6 was lying with her babe. There was opposition from her, and in overcoming it, the appellant assaulted her.Her cries brought down P. W. 1 from his upper berth and he and P.W. 5 took it up with the appellant and a scuffle ensued. P.W. 9 deposed that while she was asleep, she was roused by the noise of altercation. Then she joined P.W. 6, and both of them ran for safety to the floor of the compartment below the berth. The appellant finding himself attacked by both P.W. 1 and P.W. 5, must have made to stand clutching the two chains attached to the upper berth by his arms and kicking his assailants. That was the scene which was witnesses by the police officers when the alarm chain was pulled and the train stopped at Boinchi. As far as it is possible to reconstruct, that appears to have been the course of events.6. If that is the position, we have no doubt that the appellant cannot be held guilty of an offence under section 354. What he did was with a view to secure a berth for himself and not with a view to outrage the modesty of P.W.6. The proved facts are not sufficient to support an inference that the appellant was actuated by the intention to outrage her modesty.7. This question was not considered by the Courts below from this point of view. It appears to have been assumed that either there was an offence under section 354 or none at all. The point was not considered whether even if the assault was true it was such as would fall under sectionhave accordingly come to the conclusion that while the appellant was undoubtedly guilty of having assaulted P.W.6 it cannot be held that he did so with intent to outrage her modesty, or with the knowledge that it would outraged. We, therefore, acquitted the appellant of the charge under section 354, and substitute therefore a conviction under section 352 for assault.8. Coming next to the sentence, it must be noted that the appellant is a railway officer of some status, and as such it was his duty to behave fairly and courteously to passengers. His conduct in forcibly trying to occupy the seat occupied by P.W.6 and her babe and assaulting her when she resisted, calls for censure, and he has added insult to injury in casting aspersions on the character of P. Ws. 6 and 9. Under the circumstances, we must award the maximum sentence permissible under section 352. We accordingly sentence him to three months rigorous imprisonment.9. The appeal will accordingly be allowed to this extent. It is represented to us that the appellant had served about eight months out of the sentence of two years rigourous imprisonment imposed on him by the courts below before he was enlarged on bail by this Court. There could be no question therefore of the appellant being sent again to jail. The only order that has now to be passed is that his bail bond do stand cancelled.
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State Of Uttar Pradesh Vs. Kunwar Sri Trivikram Narain Singh | the revenue thereof, the respondent and his ancestors were given an allowance of Rs. 30,612-13-0. The allowance was in a sense related to the land revenue assessed on the land, i.e., it was fixed as a percentage of the land revenue but the percentage was merely a measure, and indicated the source of the right in lieu of which the allowance was given. The amount is described as "person" in the letters dated September 14, 1838, July 7, 1837 and June 15, 1838. I he words used in cl. (b) are undoubtedly wide; any right to a grant which has relation to land or land revenue would be determined by the operation of that clause. But the allowance to Harnarain Singh was not in respect of land or its revenue; it was granted as consideration for settlement of a claim litigated in a Civil court relating to that land.15. The primary object of the legislature, as set out in the preamble of the Act, was to abolish the zamindari system and to acquire the rights of the intermediaries and to pay compensation for acquisition of those rights. By Section 4, estates in the area for which a notification was issued, vest in the State free from all encumbrances and as a consequence of vesting, the rights of intermediaries but not their pre-existing liabilities are extinguished as from the date of vesting. Clauses (a), (c) to (f) and (h) expressly deal with the rights and obligations of intermediaries, and the interaction thereon of the notification of vesting. Clause (g) deals with the derivative rights of mortgagees of estates. By cl. (i), the mahals and sub-divisions are obliterated, and the engagements for payment of land revenue or rent by proprietors, under-proprietors, sub-proprietors, co-sharers and sub-sharers cease. There is no express reference in S. 6 (b) to the right of intermediaries; by the first part of that clause, the grant and confirmation of title to land in an estate are determined and by the second part, the rights and privileges in land or in the land revenue in the estates are determined. The key words of the second part of the clause are “in respect of" indicating a direct connection between a right or privilege and land in an estate or its revenue. The intention of the legislature is manifestly to extinguish estates and all derivative rights in estates and to extinguish the interest of intermediaries between the State and the tiller of the soil. If the grant or confirmation of title is in respect of a right or privilege to land in an estate or its revenue, it must determine under cl. (b); but a right to receive an allowance which is granted in consideration of extinction of a right to land or land revenue does not, by the force of cl. (b) determine. The allowance has not the quality of land or land revenue: its quantum only was measured by equating it with a fourth share in the net revenue of a part of land which was the subject matter of the suit in which the arrangement for payment of the allowance was made.16. Absence of a provision in the Act for payment of compensation for a right such as the one claimed by the respondent strongly supports the plea that the right is not intended to be acquired or extinguished. Sections 37 to 44 dead with the assessment of compensation to be paid to intermediaries. Compensation Assessment Roll of intermediaries in respect of the mahals has to be prepared and detailed instructions in that behalf are contained in Ss. 39 to 44. By S. 45, in computing the gross assets and net assets of proprietors who are assignees of land revenue and of under-proprietors, sub-proprietors, Permanent tenure-holders and permanent lessees in Avadh Ss. 39 to 44 of the Act are applicable subject to such modifications and incidental changes as may be prescribed. It is common ground that S. 78 of the U. P. Land Revenue Act has no application to "Syudpore Bhettree" pargana. To proprietors who are assignees of land revenue and whose names are recorded in the record of rights maintained under S. 32 cls. (a) to (d), the provisions of Ss. 39 to 44 may undoubtedly apply subject to modifications as may be prescribed, and computation of their gross and net assets may be made accordingly. But the respondent is not an assignee of land revenue whose name is so recorded in the record of rights nor is he qua the allowance an under-proprietor, sub-proprietor, permanent tenure-holder or permanent lessee. Section 45 is a machinery provision: it does not purport to extend the field of S. 6 by prescribing consequences which are not incorporated in that section. There is in S. 45 no thing to warrant the submission of counsel for the State that rights of a land-holder to receive allowances from the Government are extinguished even without compensation, merely because he was an assignee of land revenue of some land or was a proprietor, sub-proprietor, permanent tenure-holder or permanent lessee in respect of other land in Avadh. The scheme for payment of compensation prescribed by Ss. 39 to 44 is extended to amongst others, proprietors of land who are assignees of land revenue whose names are recorded in the record of rights maintained under cls. (a) to (d) of S. 32: but a person receiving an allowance from the State of the character received by the respondent is not a proprietor who is an assignee of land revenue, and in any event, if his name is not entered in the revenue record under cls. (a) to (d) of S. 32, the provisions relating to computation of gross and net assets will not apply to him. Absence of a provision in the Act for awarding compensation to persons holding interest such as the respondent has, strongly supports the view that such interest was not to be extinguished by the operation of S. 6(b) of Act 1 of 1951. | 1[ds]12. But of the 12 mahals, the respondent was a proprietor: the land of the mahals was "estate" within the meaning of S. 3 (8) of the Act and by S. 4, the right of the respondent in that estate stood vested in and transferred to the State. It is true that by the arrangement of the year 1838, confirming the earlier compromise, remission of 25% was granted to the respondents predecessors in respect of payment of land revenue. If the right of the respondent in the 12 mahals ceased, the right to remission could not be converted into a positive right to receive the amount thereof, notwithstanding the extinction of his right in those 12 mahals. The right to remission of land revenue was a right in respect of land revenue in the estate which stood vested in the State. The letters dated September 13,1837, October 19, 1837 and June 15,1838 make it abundantly clear that the difference of Rs. 5710 between the amount originally assessed and the Jamma recoverable was to be remission of revenue. The right of the respondent to the 12 Mahals was transferred to the State by virtue of the notification under S. 4, and the consequences set out in sub-s. (b) of S. 6 relating to those 12 mahals ensued.13. We are therefore unable to agree with the High Court that for the amount of Rs. 5710 which was treated as remission, the respondent was entitled to obtain relief or, the footing that that right was not affected by the issue of the notification under S. 4 of the Act.14. The claim of the respondent in respect of the allowance granted as consideration for abandonment of the right to 166 mahals rests on a firmer ground. It is true that this allowance was computed as 1/4 th share of the revenue assessed on the 166 mahals. But the respondent under the arrangement has no interest in the land of the 166 mahals or in the land revenue payable in respect thereof. By the order of the Government, the right of Sheo Narain Singh to the entire pargana "Syudpore Bhettree" was resumed. Sheo Narain Singh challenged the authority of the Government to resume his interest in the Jagir and the dispute pending in the civil court was compromised on the terms which were finalised in the year 1838 whereby Harnarain Singh and his descendants were given an allowance in amount equal to 1/4 th of the net revenue of 166 mahals. Because the annual allowance is of the mahals, the right of the respondent does not acquire the character of an interest in land or in land revenue. Under the arrangement, the entire land revenue was to be collected by the Government and in the collection Harnarain Singh and his descendants had no interest or obligation. As a consideration for relinquishing the right to the land and the revenue thereof, the respondent and his ancestors were given an allowance of Rs. 30,612-13-0. The allowance was in a sense related to the land revenue assessed on the land, i.e., it was fixed as a percentage of the land revenue but the percentage was merely a measure, and indicated the source of the right in lieu of which the allowance was given. The amount is described as "person" in the letters dated September 14, 1838, July 7, 1837 and June 15, 1838. I he words used in cl. (b) are undoubtedly wide; any right to a grant which has relation to land or land revenue would be determined by the operation of that clause. But the allowance to Harnarain Singh was not in respect of land or its revenue; it was granted as consideration for settlement of a claim litigated in a Civil court relating to thatkey words of the second part of the clause arerespect of" indicating a direct connection between a right or privilege and land in an estate or its revenue. The intention of the legislature is manifestly to extinguish estates and all derivative rights in estates and to extinguish the interest of intermediaries between the State and the tiller of the soil. If the grant or confirmation of title is in respect of a right or privilege to land in an estate or its revenue, it must determine under cl. (b); but a right to receive an allowance which is granted in consideration of extinction of a right to land or land revenue does not, by the force of cl. (b) determine. The allowance has not the quality of land or land revenue: its quantum only was measured by equating it with a fourth share in the net revenue of a part of land which was the subject matter of the suit in which the arrangement for payment of the allowance was made.16. Absence of a provision in the Act for payment of compensation for a right such as the one claimed by the respondent strongly supports the plea that the right is not intended to be acquired or extinguished. Sections 37 to 44 dead with the assessment of compensation to be paid to intermediaries. Compensation Assessment Roll of intermediaries in respect of the mahals has to be prepared and detailed instructions in that behalf are contained in Ss. 39 to 44. By S. 45, in computing the gross assets and net assets of proprietors who are assignees of land revenue and of under-proprietors, sub-proprietors, Permanent tenure-holders and permanent lessees in Avadh Ss. 39 to 44 of the Act are applicable subject to such modifications and incidental changes as may be prescribed. It is common ground that S. 78 of the U. P. Land Revenue Act has no application to "Syudpore Bhettree" pargana. To proprietors who are assignees of land revenue and whose names are recorded in the record of rights maintained under S. 32 cls. (a) to (d), the provisions of Ss. 39 to 44 may undoubtedly apply subject to modifications as may be prescribed, and computation of their gross and net assets may be made accordingly. But the respondent is not an assignee of land revenue whose name is so recorded in the record of rights nor is he qua the allowance an under-proprietor, sub-proprietor, permanent tenure-holder or permanent lessee. Section 45 is a machinery provision: it does not purport to extend the field of S. 6 by prescribing consequences which are not incorporated in that section. There is in S. 45 no thing to warrant the submission of counsel for the State that rights of a land-holder to receive allowances from the Government are extinguished even without compensation, merely because he was an assignee of land revenue of some land or was a proprietor, sub-proprietor, permanent tenure-holder or permanent lessee in respect of other land in Avadh. The scheme for payment of compensation prescribed by Ss. 39 to 44 is extended to amongst others, proprietors of land who are assignees of land revenue whose names are recorded in the record of rights maintained under cls. (a) to (d) of S. 32: but a person receiving an allowance from the State of the character received by the respondent is not a proprietor who is an assignee of land revenue, and in any event, if his name is not entered in the revenue record under cls. (a) to (d) of S. 32, the provisions relating to computation of gross and net assets will not apply to him. Absence of a provision in the Act for awarding compensation to persons holding interest such as the respondent has, strongly supports the view that such interest was not to be extinguished by the operation of S. 6(b) of Act 1 of 1951. | 1 | 5,313 | 1,409 | ### 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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the revenue thereof, the respondent and his ancestors were given an allowance of Rs. 30,612-13-0. The allowance was in a sense related to the land revenue assessed on the land, i.e., it was fixed as a percentage of the land revenue but the percentage was merely a measure, and indicated the source of the right in lieu of which the allowance was given. The amount is described as "person" in the letters dated September 14, 1838, July 7, 1837 and June 15, 1838. I he words used in cl. (b) are undoubtedly wide; any right to a grant which has relation to land or land revenue would be determined by the operation of that clause. But the allowance to Harnarain Singh was not in respect of land or its revenue; it was granted as consideration for settlement of a claim litigated in a Civil court relating to that land.15. The primary object of the legislature, as set out in the preamble of the Act, was to abolish the zamindari system and to acquire the rights of the intermediaries and to pay compensation for acquisition of those rights. By Section 4, estates in the area for which a notification was issued, vest in the State free from all encumbrances and as a consequence of vesting, the rights of intermediaries but not their pre-existing liabilities are extinguished as from the date of vesting. Clauses (a), (c) to (f) and (h) expressly deal with the rights and obligations of intermediaries, and the interaction thereon of the notification of vesting. Clause (g) deals with the derivative rights of mortgagees of estates. By cl. (i), the mahals and sub-divisions are obliterated, and the engagements for payment of land revenue or rent by proprietors, under-proprietors, sub-proprietors, co-sharers and sub-sharers cease. There is no express reference in S. 6 (b) to the right of intermediaries; by the first part of that clause, the grant and confirmation of title to land in an estate are determined and by the second part, the rights and privileges in land or in the land revenue in the estates are determined. The key words of the second part of the clause are “in respect of" indicating a direct connection between a right or privilege and land in an estate or its revenue. The intention of the legislature is manifestly to extinguish estates and all derivative rights in estates and to extinguish the interest of intermediaries between the State and the tiller of the soil. If the grant or confirmation of title is in respect of a right or privilege to land in an estate or its revenue, it must determine under cl. (b); but a right to receive an allowance which is granted in consideration of extinction of a right to land or land revenue does not, by the force of cl. (b) determine. The allowance has not the quality of land or land revenue: its quantum only was measured by equating it with a fourth share in the net revenue of a part of land which was the subject matter of the suit in which the arrangement for payment of the allowance was made.16. Absence of a provision in the Act for payment of compensation for a right such as the one claimed by the respondent strongly supports the plea that the right is not intended to be acquired or extinguished. Sections 37 to 44 dead with the assessment of compensation to be paid to intermediaries. Compensation Assessment Roll of intermediaries in respect of the mahals has to be prepared and detailed instructions in that behalf are contained in Ss. 39 to 44. By S. 45, in computing the gross assets and net assets of proprietors who are assignees of land revenue and of under-proprietors, sub-proprietors, Permanent tenure-holders and permanent lessees in Avadh Ss. 39 to 44 of the Act are applicable subject to such modifications and incidental changes as may be prescribed. It is common ground that S. 78 of the U. P. Land Revenue Act has no application to "Syudpore Bhettree" pargana. To proprietors who are assignees of land revenue and whose names are recorded in the record of rights maintained under S. 32 cls. (a) to (d), the provisions of Ss. 39 to 44 may undoubtedly apply subject to modifications as may be prescribed, and computation of their gross and net assets may be made accordingly. But the respondent is not an assignee of land revenue whose name is so recorded in the record of rights nor is he qua the allowance an under-proprietor, sub-proprietor, permanent tenure-holder or permanent lessee. Section 45 is a machinery provision: it does not purport to extend the field of S. 6 by prescribing consequences which are not incorporated in that section. There is in S. 45 no thing to warrant the submission of counsel for the State that rights of a land-holder to receive allowances from the Government are extinguished even without compensation, merely because he was an assignee of land revenue of some land or was a proprietor, sub-proprietor, permanent tenure-holder or permanent lessee in respect of other land in Avadh. The scheme for payment of compensation prescribed by Ss. 39 to 44 is extended to amongst others, proprietors of land who are assignees of land revenue whose names are recorded in the record of rights maintained under cls. (a) to (d) of S. 32: but a person receiving an allowance from the State of the character received by the respondent is not a proprietor who is an assignee of land revenue, and in any event, if his name is not entered in the revenue record under cls. (a) to (d) of S. 32, the provisions relating to computation of gross and net assets will not apply to him. Absence of a provision in the Act for awarding compensation to persons holding interest such as the respondent has, strongly supports the view that such interest was not to be extinguished by the operation of S. 6(b) of Act 1 of 1951.
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1
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as consideration for abandonment of the right to 166 mahals rests on a firmer ground. It is true that this allowance was computed as 1/4 th share of the revenue assessed on the 166 mahals. But the respondent under the arrangement has no interest in the land of the 166 mahals or in the land revenue payable in respect thereof. By the order of the Government, the right of Sheo Narain Singh to the entire pargana "Syudpore Bhettree" was resumed. Sheo Narain Singh challenged the authority of the Government to resume his interest in the Jagir and the dispute pending in the civil court was compromised on the terms which were finalised in the year 1838 whereby Harnarain Singh and his descendants were given an allowance in amount equal to 1/4 th of the net revenue of 166 mahals. Because the annual allowance is of the mahals, the right of the respondent does not acquire the character of an interest in land or in land revenue. Under the arrangement, the entire land revenue was to be collected by the Government and in the collection Harnarain Singh and his descendants had no interest or obligation. As a consideration for relinquishing the right to the land and the revenue thereof, the respondent and his ancestors were given an allowance of Rs. 30,612-13-0. The allowance was in a sense related to the land revenue assessed on the land, i.e., it was fixed as a percentage of the land revenue but the percentage was merely a measure, and indicated the source of the right in lieu of which the allowance was given. The amount is described as "person" in the letters dated September 14, 1838, July 7, 1837 and June 15, 1838. I he words used in cl. (b) are undoubtedly wide; any right to a grant which has relation to land or land revenue would be determined by the operation of that clause. But the allowance to Harnarain Singh was not in respect of land or its revenue; it was granted as consideration for settlement of a claim litigated in a Civil court relating to thatkey words of the second part of the clause arerespect of" indicating a direct connection between a right or privilege and land in an estate or its revenue. The intention of the legislature is manifestly to extinguish estates and all derivative rights in estates and to extinguish the interest of intermediaries between the State and the tiller of the soil. If the grant or confirmation of title is in respect of a right or privilege to land in an estate or its revenue, it must determine under cl. (b); but a right to receive an allowance which is granted in consideration of extinction of a right to land or land revenue does not, by the force of cl. (b) determine. The allowance has not the quality of land or land revenue: its quantum only was measured by equating it with a fourth share in the net revenue of a part of land which was the subject matter of the suit in which the arrangement for payment of the allowance was made.16. Absence of a provision in the Act for payment of compensation for a right such as the one claimed by the respondent strongly supports the plea that the right is not intended to be acquired or extinguished. Sections 37 to 44 dead with the assessment of compensation to be paid to intermediaries. Compensation Assessment Roll of intermediaries in respect of the mahals has to be prepared and detailed instructions in that behalf are contained in Ss. 39 to 44. By S. 45, in computing the gross assets and net assets of proprietors who are assignees of land revenue and of under-proprietors, sub-proprietors, Permanent tenure-holders and permanent lessees in Avadh Ss. 39 to 44 of the Act are applicable subject to such modifications and incidental changes as may be prescribed. It is common ground that S. 78 of the U. P. Land Revenue Act has no application to "Syudpore Bhettree" pargana. To proprietors who are assignees of land revenue and whose names are recorded in the record of rights maintained under S. 32 cls. (a) to (d), the provisions of Ss. 39 to 44 may undoubtedly apply subject to modifications as may be prescribed, and computation of their gross and net assets may be made accordingly. But the respondent is not an assignee of land revenue whose name is so recorded in the record of rights nor is he qua the allowance an under-proprietor, sub-proprietor, permanent tenure-holder or permanent lessee. Section 45 is a machinery provision: it does not purport to extend the field of S. 6 by prescribing consequences which are not incorporated in that section. There is in S. 45 no thing to warrant the submission of counsel for the State that rights of a land-holder to receive allowances from the Government are extinguished even without compensation, merely because he was an assignee of land revenue of some land or was a proprietor, sub-proprietor, permanent tenure-holder or permanent lessee in respect of other land in Avadh. The scheme for payment of compensation prescribed by Ss. 39 to 44 is extended to amongst others, proprietors of land who are assignees of land revenue whose names are recorded in the record of rights maintained under cls. (a) to (d) of S. 32: but a person receiving an allowance from the State of the character received by the respondent is not a proprietor who is an assignee of land revenue, and in any event, if his name is not entered in the revenue record under cls. (a) to (d) of S. 32, the provisions relating to computation of gross and net assets will not apply to him. Absence of a provision in the Act for awarding compensation to persons holding interest such as the respondent has, strongly supports the view that such interest was not to be extinguished by the operation of S. 6(b) of Act 1 of 1951.
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R.K. Khandelwal Vs. State of Uttar Pradesh and Others | D.C.H. Course after he had finished his house job in Paediatrics. His case is that for many years in the past, candidates who had passed the D.C.H. Examination were preferred for admission to the M. D. Course but that the University suddenly discontinued that practice, as a result of which he had to compete with others who had passed their M.B.B.S. Examination. There is no substance in this contention and in any case the appellant cannot make a grievance of a change in the practice for admission to the particular course. Admittedly, there was no rule at any time requiring that an applicant seeking admission to the M.D. Course in Paediatrics had to pass his D.C.H. Examination. All that is alleged is that such a practice was recognised over many years or at least, that such was the under- standing of all concerned. Both the practice and the understanding have been denied on behalf of the College. But apart from that, discontinuance of a mere practice cannot sustain a charge of injury to legal rights. The practice had not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination. We also feel some difficulty on the facts before us in accepting the contention of the appellant that passing the D.C.H. Examination was a passport for admission to the M.D. Course. It may, at the highest, be said that it was easier for students to get admitted to the M.D. Course after passing the additional examination of D.C.H. after the M.B.B.S. Examination.The appellant applied for admission to the M.D. (Paediatrics Course for the academic year 1979-80. He had passed his M.B.B.S. Examination in December 1976. There were other students who had applied for admission to the M.D. Course in Paediatrics along with the appellant. Some of them had passed their M.B.B.S. Examination prior to December 1976 and had secured higher marks than the marks obtained by the appellant in the December 1976 Examination. The number of seats being limited, admissions were given according to merit and the four students who had secured highest number of marks were given preference to others regardless of the year in which they had passed their M.B.B.S. Examination. No one was admitted to the 1979-80 academic year for the M.D. Course in Paediatrics, who had secured lesser marks than the appellant. The four students who secured admission had obtained marks varying between 60.06% to 65.80% while the appellant had secured 58.56% marks only. He was sixth in order of merit amongst the applicants and there were only four seats available bearing in mind the ratio of 1:1 between the teachers and the students.5. Dr. Singhvi, who appears on behalf of the appellant, raised a further contention that the ratio 1:1 was relaxed from time to time by the University and that the appellant was discriminated against by the arbitrary refusal of the authorities to relax the ratio in his favour. We are prepared to accept that if there is a power to relax the ratio, that power must be exercised reasonably and fairly. It cannot be exercised arbitrarily to favour some students and to disfavour some others. But the difficulty in the way of the learned counsel is that this point of discrimination was not taken in the Writ Petition which was filed in the High Court, it was not argued in the High Court and is not even mentioned in the Special Leave Petition before us. The question as to whether the authorities have the power to relax the ratio and the further question as to whether that power has been exercised arbitrarily in this case raise new points into which it is difficult f or us to enquire for the first time. We are therefore unable to entertain the submission made by the counsel.The appellant has thus failed to make out a case of injury to any of his legal rights, for which reason the appeal must fail. The appeal is accordingly dismissed. But considering that under interim orders passed by this Court from time to time the appellant has appeared for the M.D. Examination on the completion of the Course, we hope that the University and the S.N. Medical College will take a sympathetic view of the appellants case and have his result declared. It may be mentioned that because of the interim orders passed by this Court directing the College and the University to admit the appellant to the M .D. Course in Paediatrics, the College cancelled the appellants admission to the D.C.H. Course. That may have been right because no student can do the D.C.H. Course and the M D. Course simultaneously. But the point of the matter is that if t his Court were not to direct as an interim measure that the appellant should be allowed to prosecute his studies in M.D. Paediatrics (subject to the result of this Appeal), the appellant might have completed his D.C.H. Course and, subject to being admitted to the M.D. Course within a year or so from now he would have taken his M.D. Examination after passing the D.C.H. Examination. The authorities concerned will bear in mind that the appellant should not be placed in a worse position than he would have been in, had he not filed this appeal. Therefore, if the appellant has passed the examination, he should be declared to have passed it like any other student. He should not be subjected to any disadvantage for the reason that he was not entitled initially to be admitted to the M.D. Course in Paediatrics. If he has failed, he should be permitted to take the examination again (or again and again) in accordance with the rules of the University. Since the result of the other students, who had appeared for the M.D. Examination along with the appellant, was declared in February 1981, we hope that the appellants result would be declared forthwith. There will be no order as to costs.6. | 0[ds]The appellant, as stated earlier, was admitted to the D.C.H. Course after he had finished his house job in Paediatrics. His case is that for many years in the past, candidates who had passed the D.C.H. Examination were preferred for admission to the M. D. Course but that the University suddenly discontinued that practice, as a result of which he had to compete with others who had passed their M.B.B.S. Examination. There is no substance in this contention and in any case the appellant cannot make a grievance of a change in the practice for admission to the particular course. Admittedly, there was no rule at any time requiring that an applicant seeking admission to the M.D. Course in Paediatrics had to pass his D.C.H. Examination. All that is alleged is that such a practice was recognised over many years or at least, that such was the under- standing of all concerned. Both the practice and the understanding have been denied on behalf of the College. But apart from that, discontinuance of a mere practice cannot sustain a charge of injury to legal rights. The practice had not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination. Wealso feel some difficulty on the facts before us in accepting the contention of the appellant that passing the D.C.H. Examination was a passport for admission to the M.D. Course.It may, at the highest, be said that it was easier for students to get admitted to the M.D. Course after passing the additional examination of D.C.H. after the M.B.B.S. Examination.The appellant applied for admission to the M.D. (Paediatrics Course for the academic year 1979-80. He had passed his M.B.B.S. Examination in December 1976. There were other students who had applied for admission to the M.D. Course in Paediatrics along with the appellant. Some of them had passed their M.B.B.S. Examination prior to December 1976 and had secured higher marks than the marks obtained by the appellant in the December 1976 Examination. The number of seats being limited, admissions were given according to merit and the four students who had secured highest number of marks were given preference to others regardless of the year in which they had passed their M.B.B.S. Examination. No one was admitted to the 1979-80 academic year for the M.D. Course in Paediatrics, who had secured lesser marks than the appellant. The four students who secured admission had obtained marks varying between 60.06% to 65.80% while the appellant had secured 58.56% marks only. He was sixth in order of merit amongst the applicants and there were only four seats available bearing in mind the ratio of 1:1 between the teachers and theappellant has thus failed to make out a case of injury to any of his legal rights, for which reason the appeal must fail. The appeal is accordingly dismissed. But considering that under interim orders passed by this Court from time to time the appellant has appeared for the M.D. Examination on the completion of the Course, we hope that the University and the S.N. Medical College will take a sympathetic view of the appellants case and have his result declared. It may be mentioned that because of the interim orders passed by this Court directing the College and the University to admit the appellant to the M .D. Course in Paediatrics, the College cancelled the appellants admission to the D.C.H. Course. That may have been right because no student can do the D.C.H. Course and the M D. Course simultaneously. But the point of the matter is that if t his Court were not to direct as an interim measure that the appellant should be allowed to prosecute his studies in M.D. Paediatrics (subject to the result of this Appeal), the appellant might have completed his D.C.H. Course and, subject to being admitted to the M.D. Course within a year or so from now he would have taken his M.D. Examination after passing the D.C.H. Examination. The authorities concerned will bear in mind that the appellant should not be placed in a worse position than he would have been in, had he not filed this appeal. Therefore, if the appellant has passed the examination, he should be declared to have passed it like any other student. He should not be subjected to any disadvantage for the reason that he was not entitled initially to be admitted to the M.D. Course in Paediatrics. If he has failed, he should be permitted to take the examination again (or again and again) in accordance with the rules of the University. Since the result of the other students, who had appeared for the M.D. Examination along with the appellant, was declared in February 1981, we hope that the appellants result would be declared forthwith. There will be no order as to costs. | 0 | 1,423 | 905 | ### 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:
D.C.H. Course after he had finished his house job in Paediatrics. His case is that for many years in the past, candidates who had passed the D.C.H. Examination were preferred for admission to the M. D. Course but that the University suddenly discontinued that practice, as a result of which he had to compete with others who had passed their M.B.B.S. Examination. There is no substance in this contention and in any case the appellant cannot make a grievance of a change in the practice for admission to the particular course. Admittedly, there was no rule at any time requiring that an applicant seeking admission to the M.D. Course in Paediatrics had to pass his D.C.H. Examination. All that is alleged is that such a practice was recognised over many years or at least, that such was the under- standing of all concerned. Both the practice and the understanding have been denied on behalf of the College. But apart from that, discontinuance of a mere practice cannot sustain a charge of injury to legal rights. The practice had not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination. We also feel some difficulty on the facts before us in accepting the contention of the appellant that passing the D.C.H. Examination was a passport for admission to the M.D. Course. It may, at the highest, be said that it was easier for students to get admitted to the M.D. Course after passing the additional examination of D.C.H. after the M.B.B.S. Examination.The appellant applied for admission to the M.D. (Paediatrics Course for the academic year 1979-80. He had passed his M.B.B.S. Examination in December 1976. There were other students who had applied for admission to the M.D. Course in Paediatrics along with the appellant. Some of them had passed their M.B.B.S. Examination prior to December 1976 and had secured higher marks than the marks obtained by the appellant in the December 1976 Examination. The number of seats being limited, admissions were given according to merit and the four students who had secured highest number of marks were given preference to others regardless of the year in which they had passed their M.B.B.S. Examination. No one was admitted to the 1979-80 academic year for the M.D. Course in Paediatrics, who had secured lesser marks than the appellant. The four students who secured admission had obtained marks varying between 60.06% to 65.80% while the appellant had secured 58.56% marks only. He was sixth in order of merit amongst the applicants and there were only four seats available bearing in mind the ratio of 1:1 between the teachers and the students.5. Dr. Singhvi, who appears on behalf of the appellant, raised a further contention that the ratio 1:1 was relaxed from time to time by the University and that the appellant was discriminated against by the arbitrary refusal of the authorities to relax the ratio in his favour. We are prepared to accept that if there is a power to relax the ratio, that power must be exercised reasonably and fairly. It cannot be exercised arbitrarily to favour some students and to disfavour some others. But the difficulty in the way of the learned counsel is that this point of discrimination was not taken in the Writ Petition which was filed in the High Court, it was not argued in the High Court and is not even mentioned in the Special Leave Petition before us. The question as to whether the authorities have the power to relax the ratio and the further question as to whether that power has been exercised arbitrarily in this case raise new points into which it is difficult f or us to enquire for the first time. We are therefore unable to entertain the submission made by the counsel.The appellant has thus failed to make out a case of injury to any of his legal rights, for which reason the appeal must fail. The appeal is accordingly dismissed. But considering that under interim orders passed by this Court from time to time the appellant has appeared for the M.D. Examination on the completion of the Course, we hope that the University and the S.N. Medical College will take a sympathetic view of the appellants case and have his result declared. It may be mentioned that because of the interim orders passed by this Court directing the College and the University to admit the appellant to the M .D. Course in Paediatrics, the College cancelled the appellants admission to the D.C.H. Course. That may have been right because no student can do the D.C.H. Course and the M D. Course simultaneously. But the point of the matter is that if t his Court were not to direct as an interim measure that the appellant should be allowed to prosecute his studies in M.D. Paediatrics (subject to the result of this Appeal), the appellant might have completed his D.C.H. Course and, subject to being admitted to the M.D. Course within a year or so from now he would have taken his M.D. Examination after passing the D.C.H. Examination. The authorities concerned will bear in mind that the appellant should not be placed in a worse position than he would have been in, had he not filed this appeal. Therefore, if the appellant has passed the examination, he should be declared to have passed it like any other student. He should not be subjected to any disadvantage for the reason that he was not entitled initially to be admitted to the M.D. Course in Paediatrics. If he has failed, he should be permitted to take the examination again (or again and again) in accordance with the rules of the University. Since the result of the other students, who had appeared for the M.D. Examination along with the appellant, was declared in February 1981, we hope that the appellants result would be declared forthwith. There will be no order as to costs.6.
### Response:
0
### Explanation:
The appellant, as stated earlier, was admitted to the D.C.H. Course after he had finished his house job in Paediatrics. His case is that for many years in the past, candidates who had passed the D.C.H. Examination were preferred for admission to the M. D. Course but that the University suddenly discontinued that practice, as a result of which he had to compete with others who had passed their M.B.B.S. Examination. There is no substance in this contention and in any case the appellant cannot make a grievance of a change in the practice for admission to the particular course. Admittedly, there was no rule at any time requiring that an applicant seeking admission to the M.D. Course in Paediatrics had to pass his D.C.H. Examination. All that is alleged is that such a practice was recognised over many years or at least, that such was the under- standing of all concerned. Both the practice and the understanding have been denied on behalf of the College. But apart from that, discontinuance of a mere practice cannot sustain a charge of injury to legal rights. The practice had not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination. Wealso feel some difficulty on the facts before us in accepting the contention of the appellant that passing the D.C.H. Examination was a passport for admission to the M.D. Course.It may, at the highest, be said that it was easier for students to get admitted to the M.D. Course after passing the additional examination of D.C.H. after the M.B.B.S. Examination.The appellant applied for admission to the M.D. (Paediatrics Course for the academic year 1979-80. He had passed his M.B.B.S. Examination in December 1976. There were other students who had applied for admission to the M.D. Course in Paediatrics along with the appellant. Some of them had passed their M.B.B.S. Examination prior to December 1976 and had secured higher marks than the marks obtained by the appellant in the December 1976 Examination. The number of seats being limited, admissions were given according to merit and the four students who had secured highest number of marks were given preference to others regardless of the year in which they had passed their M.B.B.S. Examination. No one was admitted to the 1979-80 academic year for the M.D. Course in Paediatrics, who had secured lesser marks than the appellant. The four students who secured admission had obtained marks varying between 60.06% to 65.80% while the appellant had secured 58.56% marks only. He was sixth in order of merit amongst the applicants and there were only four seats available bearing in mind the ratio of 1:1 between the teachers and theappellant has thus failed to make out a case of injury to any of his legal rights, for which reason the appeal must fail. The appeal is accordingly dismissed. But considering that under interim orders passed by this Court from time to time the appellant has appeared for the M.D. Examination on the completion of the Course, we hope that the University and the S.N. Medical College will take a sympathetic view of the appellants case and have his result declared. It may be mentioned that because of the interim orders passed by this Court directing the College and the University to admit the appellant to the M .D. Course in Paediatrics, the College cancelled the appellants admission to the D.C.H. Course. That may have been right because no student can do the D.C.H. Course and the M D. Course simultaneously. But the point of the matter is that if t his Court were not to direct as an interim measure that the appellant should be allowed to prosecute his studies in M.D. Paediatrics (subject to the result of this Appeal), the appellant might have completed his D.C.H. Course and, subject to being admitted to the M.D. Course within a year or so from now he would have taken his M.D. Examination after passing the D.C.H. Examination. The authorities concerned will bear in mind that the appellant should not be placed in a worse position than he would have been in, had he not filed this appeal. Therefore, if the appellant has passed the examination, he should be declared to have passed it like any other student. He should not be subjected to any disadvantage for the reason that he was not entitled initially to be admitted to the M.D. Course in Paediatrics. If he has failed, he should be permitted to take the examination again (or again and again) in accordance with the rules of the University. Since the result of the other students, who had appeared for the M.D. Examination along with the appellant, was declared in February 1981, we hope that the appellants result would be declared forthwith. There will be no order as to costs.
|
Luka Mathai Vs. Neelakanta Iyer Subramonia Iyer | that the valuation suggested by the learned counsel is highly exaggerated because in his plaint even the plaintiff had only said that the value was Rs. 30, 000/-. In that case the final decree for sale in a mortgage suit and in the certificate for sale the number of the property in dispute was give as No. 160 instead of No. 1060, which was the real number but the property was otherwise fully described so that its identity could be clearly established. This Court held that as the khata number, the area and the boundaries given in the final decree and in the sale certificate tally with No. 1060, the identity is clearly established and there has only been a misdescription of the plot in the final decree as well as in the sale certificate by the omission of one zero from the plot number. In another passage, referring to the decision of the Privy Council in Thakur Barmha v. Jihan Ram Marwari ((1913) LR 41 IA 38.), Wanchoo, J., observed that the effect of this decision is that where there is no doubt as to the identity and there is only misdescription that could be treated as a mere irregularity. 12. It seems to us that it is clear from the details mentioned in the proclamation, which we have mentioned above, that the bidder, the owner and the auctioneer had no doubt about the identity of the property which was being sold. This was not a case of non-publication of the proclamation and, therefore, the rulings relied on by the learned counsel for the appellant have no application. 13. Under Section 32(2) of the Travancore Revenue Regulation (Regulation 1) of 1068 what is required is that previous to the sale, the Tehsildar shall issue a notice specifying the name of the defaulter, the position, tenure and extent of land and the buildings therein; the amount of revenue assessed on the land of upon its different sections; the proportions of the Public Revenue due during the remainder of the current Malabar year, and the time, place and conditions of the sale. In our opinion, the proclamation satisfies the requirements of Section 32(2). 14. In view of the above conclusion it is not necessary to rely on the point of res judicata made by the High Court. 15. Regarding the second point, there is no material to show that the value of the property was anywhere more than Rs. 30, 000/-. In view of the fact that the property had been mortgaged to Government and to private parties, we are not satisfied that the property was sold at a low price. The Trial Court has found that no fraud has been proved. 16. The third and fourth points arise our of the cross-objections filed by the plaintiff-appellant before us. The High Court disposed of the cross-objections in the following words : The plaintiff has preferred a cross-objection pleading that the revenue sale ought to have been declared void with regard to the other items of properties included in the plaint schedule also. Admittedly they were the subject-matter of the attachment and proclamation which culminated in the revenue sale. No defect in the proceedings except the error in the survey numbers discussed above, to affect the validity of the revenue sale has been brought to our notice. The cross-objection has no merits and has only to be dismissed. 17. It is not quite clear whether the third ground was specifically taken in the cross-objections though ground No. 5 may perhaps cover it. Be that as it may, as the questions of jurisdiction and law are involved we have to deal with the point. Section 59 of the Travancore Revenue Recovery Regulation (Regulation No. 1 of 1068) reads thus : 59. All arrears of public revenue due to Government other than land revenue. - All moneys due from any person to Government which under a written agreement executed by such person are recoverable as arrears of public or land revenue, and all specific pecuniary penalties to which such person renders himself liable under such agreement, and also all sums declared by any other regulation for the time being in force to be recoverable as arrears of public or land revenue, may be recovered under the provisions of this regulation. 18. The learned counsel for the plaintiff contends that there is no written agreement which says that the moneys due under the bond can be recovered as arrears of public or land revenue. The learned counsel for the respondent has not been able to point out any such agreement and the only point he urges is that this point was new and should not be allowed to be taken. No other regulation has been brought to our notice which makes dues under this bond to be recoverable as arrears of public or land revenue. But we are unable to set aside the sale on this ground because if the point had been taken at an early stage the Government may well have replied on the power of sale given under the bond. The fact that the sale took place under the machinery provided by the Revenue Recovery Regulation and not under any ad boe machinery set up by the Government would not vitiate the sale. 19. But the fourth point raised by the learned counsel for the plaintiff is fatal for the respondent. The bonds do not give power to the Government to sell the properties other than mentioned in the bond. The properties mentioned in plaint A schedule Items 2 to 5, B Schedule Items 1 and 3 to 8 and C schedule items were not given as security under the bond and the Government had no authority to sell them. It is conceded on behalf of the respondent that all the properties were sold in one lot. This, in our opinion, vitiates the whole sale and we have no option but to declare that the sale of all the properties was void. | 1[ds]8. Coming to the first point, there is no doubt that wrong revenue numbers were mentioned in the notice, dated May 5, 193910. We agree with this finding of the High Court. We are satisfied that on the material placed before us no other finding could be arrived atIn our opinion, the proclamation satisfies the requirements of Section 32(2)14. In view of the above conclusion it is not necessary to rely on the point of res judicata made by the High Court15. Regarding the second point, there is no material to show that the value of the property was anywhere more than Rs. 30, 000/-. In view of the fact that the property had been mortgaged to Government and to private parties, we are not satisfied that the property was sold at a low price. The Trial Court has found that no fraud has been proved16. The third and fourth points arise our of the cross-objections filed by the plaintiff-appellant before usThe learned counsel for the respondent has not been able to point out any such agreement and the only point he urges is that this point was new and should not be allowed to be taken. No other regulation has been brought to our notice which makes dues under this bond to be recoverable as arrears of public or land revenue. But we are unable to set aside the sale on this ground because if the point had been taken at an early stage the Government may well have replied on the power of sale given under the bond. The fact that the sale took place under the machinery provided by the Revenue Recovery Regulation and not under any ad boe machinery set up by the Government would not vitiate the sale19. But the fourth point raised by the learned counsel for the plaintiff is fatal for the respondent. The bonds do not give power to the Government to sell the properties other than mentioned in the bond. The properties mentioned in plaint A schedule Items 2 to 5, B Schedule Items 1 and 3 to 8 and C schedule items were not given as security under the bond and the Government had no authority to sell them. It is conceded on behalf of the respondent that all the properties were sold in one lot. This, in our opinion, vitiates the whole sale and we have no option but to declare that the sale of all the properties was void. | 1 | 2,904 | 447 | ### 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:
that the valuation suggested by the learned counsel is highly exaggerated because in his plaint even the plaintiff had only said that the value was Rs. 30, 000/-. In that case the final decree for sale in a mortgage suit and in the certificate for sale the number of the property in dispute was give as No. 160 instead of No. 1060, which was the real number but the property was otherwise fully described so that its identity could be clearly established. This Court held that as the khata number, the area and the boundaries given in the final decree and in the sale certificate tally with No. 1060, the identity is clearly established and there has only been a misdescription of the plot in the final decree as well as in the sale certificate by the omission of one zero from the plot number. In another passage, referring to the decision of the Privy Council in Thakur Barmha v. Jihan Ram Marwari ((1913) LR 41 IA 38.), Wanchoo, J., observed that the effect of this decision is that where there is no doubt as to the identity and there is only misdescription that could be treated as a mere irregularity. 12. It seems to us that it is clear from the details mentioned in the proclamation, which we have mentioned above, that the bidder, the owner and the auctioneer had no doubt about the identity of the property which was being sold. This was not a case of non-publication of the proclamation and, therefore, the rulings relied on by the learned counsel for the appellant have no application. 13. Under Section 32(2) of the Travancore Revenue Regulation (Regulation 1) of 1068 what is required is that previous to the sale, the Tehsildar shall issue a notice specifying the name of the defaulter, the position, tenure and extent of land and the buildings therein; the amount of revenue assessed on the land of upon its different sections; the proportions of the Public Revenue due during the remainder of the current Malabar year, and the time, place and conditions of the sale. In our opinion, the proclamation satisfies the requirements of Section 32(2). 14. In view of the above conclusion it is not necessary to rely on the point of res judicata made by the High Court. 15. Regarding the second point, there is no material to show that the value of the property was anywhere more than Rs. 30, 000/-. In view of the fact that the property had been mortgaged to Government and to private parties, we are not satisfied that the property was sold at a low price. The Trial Court has found that no fraud has been proved. 16. The third and fourth points arise our of the cross-objections filed by the plaintiff-appellant before us. The High Court disposed of the cross-objections in the following words : The plaintiff has preferred a cross-objection pleading that the revenue sale ought to have been declared void with regard to the other items of properties included in the plaint schedule also. Admittedly they were the subject-matter of the attachment and proclamation which culminated in the revenue sale. No defect in the proceedings except the error in the survey numbers discussed above, to affect the validity of the revenue sale has been brought to our notice. The cross-objection has no merits and has only to be dismissed. 17. It is not quite clear whether the third ground was specifically taken in the cross-objections though ground No. 5 may perhaps cover it. Be that as it may, as the questions of jurisdiction and law are involved we have to deal with the point. Section 59 of the Travancore Revenue Recovery Regulation (Regulation No. 1 of 1068) reads thus : 59. All arrears of public revenue due to Government other than land revenue. - All moneys due from any person to Government which under a written agreement executed by such person are recoverable as arrears of public or land revenue, and all specific pecuniary penalties to which such person renders himself liable under such agreement, and also all sums declared by any other regulation for the time being in force to be recoverable as arrears of public or land revenue, may be recovered under the provisions of this regulation. 18. The learned counsel for the plaintiff contends that there is no written agreement which says that the moneys due under the bond can be recovered as arrears of public or land revenue. The learned counsel for the respondent has not been able to point out any such agreement and the only point he urges is that this point was new and should not be allowed to be taken. No other regulation has been brought to our notice which makes dues under this bond to be recoverable as arrears of public or land revenue. But we are unable to set aside the sale on this ground because if the point had been taken at an early stage the Government may well have replied on the power of sale given under the bond. The fact that the sale took place under the machinery provided by the Revenue Recovery Regulation and not under any ad boe machinery set up by the Government would not vitiate the sale. 19. But the fourth point raised by the learned counsel for the plaintiff is fatal for the respondent. The bonds do not give power to the Government to sell the properties other than mentioned in the bond. The properties mentioned in plaint A schedule Items 2 to 5, B Schedule Items 1 and 3 to 8 and C schedule items were not given as security under the bond and the Government had no authority to sell them. It is conceded on behalf of the respondent that all the properties were sold in one lot. This, in our opinion, vitiates the whole sale and we have no option but to declare that the sale of all the properties was void.
### Response:
1
### Explanation:
8. Coming to the first point, there is no doubt that wrong revenue numbers were mentioned in the notice, dated May 5, 193910. We agree with this finding of the High Court. We are satisfied that on the material placed before us no other finding could be arrived atIn our opinion, the proclamation satisfies the requirements of Section 32(2)14. In view of the above conclusion it is not necessary to rely on the point of res judicata made by the High Court15. Regarding the second point, there is no material to show that the value of the property was anywhere more than Rs. 30, 000/-. In view of the fact that the property had been mortgaged to Government and to private parties, we are not satisfied that the property was sold at a low price. The Trial Court has found that no fraud has been proved16. The third and fourth points arise our of the cross-objections filed by the plaintiff-appellant before usThe learned counsel for the respondent has not been able to point out any such agreement and the only point he urges is that this point was new and should not be allowed to be taken. No other regulation has been brought to our notice which makes dues under this bond to be recoverable as arrears of public or land revenue. But we are unable to set aside the sale on this ground because if the point had been taken at an early stage the Government may well have replied on the power of sale given under the bond. The fact that the sale took place under the machinery provided by the Revenue Recovery Regulation and not under any ad boe machinery set up by the Government would not vitiate the sale19. But the fourth point raised by the learned counsel for the plaintiff is fatal for the respondent. The bonds do not give power to the Government to sell the properties other than mentioned in the bond. The properties mentioned in plaint A schedule Items 2 to 5, B Schedule Items 1 and 3 to 8 and C schedule items were not given as security under the bond and the Government had no authority to sell them. It is conceded on behalf of the respondent that all the properties were sold in one lot. This, in our opinion, vitiates the whole sale and we have no option but to declare that the sale of all the properties was void.
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Navin Chemicals Manufacturing & Trading Company Limited Vs. Collector of Customs | present appeal lies not so much in deciding which appeals can be heard by a member of CEGAT sitting singly and which by a Special Bench thereof as in determining where a reference can be made by CEGAT to the High Court and in which cases an appeal against an order of CEGAT can be filed directly before the Supreme Court. Where an appeal lies to the Supreme Court, the necessity of a reference on a question of law to the High Court is obviated. An appeal to this Court is provided where, as aforementioned, the questions in issue, relating to the rates of duty or the value of goods for the purposes of assessment, have relevance not only for the parties there concerned but for other importers as well. 10. Section 129-D deals with the powers of the Central Board of Excise and Customs and the Collector of Customs to call for and examine the record of any proceedings before authorities subordinate thereto and examine the legality or propriety thereof and also to direct such authorities to file appeals. Sub-section 5 was added to Section 129-D by the Customs & Central Excises Laws Amendment Act, 1988 and it reads thus: ?(5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a rela?tion to the rate of duty or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. Explanation?For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question? (a) relating to the rate of duty for the time being in force, whether under the Customs Tariff Act, 1975 (51 of 1975), or under any other Central Act providing for the levy and collection of any duty of customs, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February, 1986; or (c) whether any goods fall under a particular heading or Sub-heading of the First Schedule or the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975), or that any goods are or not covered by a particular notification or order issued by the Central Government granting total or partial exemption from duty; or (d) whether the value of any goods for the purposes of assessment of duty shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act. 11. It will be seen that Sub-section 5 uses the said expression deter?mination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment and the Explanation thereto provides a definition of it for the purposes of this sub-section. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption Notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to Sub-section 5 of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption Notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. 12. This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT: does the question that requires determination have a direct and proximate relation for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods. 13. The order of the Additional Collector under appeal before CEGAT in the present case did not have any direct or proximate relation, for the purposes of assessment, either to the rate of duty applicable to the said goods or to the value thereof. All that the Additional Collectors order did was to confiscate the said goods allowing to the appellant the option of redeeming them upon payment of a fine of Rs. 10.000. That the appellant might avail of the option, pay the fine and clear the said goods, when questions as to the rate of duty and value for purposes of assessment might possibly arise, is far too remote a contingency to satisfy the test that is laid down. | 0[ds]Section 130 (1) states that the Collector of Customs or the other party may require CEGAT to refer to the High Court any question of law arising out of an order under appeal before it provided it is not an order relating among other things to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment. Clause (b) of SectionE provides that an appeal shall lie to the Supreme Court from any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment9. The importance of the present appeal lies not so much in deciding which appeals can be heard by a member of CEGAT sitting singly and which by a Special Bench thereof as in determining where a reference can be made by CEGAT to the High Court and in which cases an appeal against an order of CEGAT can be filed directly before the Supreme Court. Where an appeal lies to the Supreme Court, the necessity of a reference on a question of law to the High Court is obviated. An appeal to this Court is provided where, as aforementioned, the questions in issue, relating to the rates of duty or the value of goods for the purposes of assessment, have relevance not only for the parties there concerned but for other importers as well11. It will be seen thatn 5 uses the said expressionn of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment and the Explanation thereto provides a definition of it for the purposes of this. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption Notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression ton 5 of Section, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption Notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods12. This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT: does the question that requires determination have a direct and proximate relation for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods13. The order of the Additional Collector under appeal before CEGAT in the present case did not have any direct or proximate relation, for the purposes of assessment, either to the rate of duty applicable to the said goods or to the value thereof. All that the Additional Collectors order did was to confiscate the said goods allowing to the appellant the option of redeeming them upon payment of a fine of Rs. 10.000. That the appellant might avail of the option, pay the fine and clear the said goods, when questions as to the rate of duty and value for purposes of assessment might possibly arise, is far too remote a contingency to satisfy the test that is laid down. | 0 | 2,938 | 821 | ### 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:
present appeal lies not so much in deciding which appeals can be heard by a member of CEGAT sitting singly and which by a Special Bench thereof as in determining where a reference can be made by CEGAT to the High Court and in which cases an appeal against an order of CEGAT can be filed directly before the Supreme Court. Where an appeal lies to the Supreme Court, the necessity of a reference on a question of law to the High Court is obviated. An appeal to this Court is provided where, as aforementioned, the questions in issue, relating to the rates of duty or the value of goods for the purposes of assessment, have relevance not only for the parties there concerned but for other importers as well. 10. Section 129-D deals with the powers of the Central Board of Excise and Customs and the Collector of Customs to call for and examine the record of any proceedings before authorities subordinate thereto and examine the legality or propriety thereof and also to direct such authorities to file appeals. Sub-section 5 was added to Section 129-D by the Customs & Central Excises Laws Amendment Act, 1988 and it reads thus: ?(5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a rela?tion to the rate of duty or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. Explanation?For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question? (a) relating to the rate of duty for the time being in force, whether under the Customs Tariff Act, 1975 (51 of 1975), or under any other Central Act providing for the levy and collection of any duty of customs, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February, 1986; or (c) whether any goods fall under a particular heading or Sub-heading of the First Schedule or the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975), or that any goods are or not covered by a particular notification or order issued by the Central Government granting total or partial exemption from duty; or (d) whether the value of any goods for the purposes of assessment of duty shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act. 11. It will be seen that Sub-section 5 uses the said expression deter?mination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment and the Explanation thereto provides a definition of it for the purposes of this sub-section. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption Notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to Sub-section 5 of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption Notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. 12. This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT: does the question that requires determination have a direct and proximate relation for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods. 13. The order of the Additional Collector under appeal before CEGAT in the present case did not have any direct or proximate relation, for the purposes of assessment, either to the rate of duty applicable to the said goods or to the value thereof. All that the Additional Collectors order did was to confiscate the said goods allowing to the appellant the option of redeeming them upon payment of a fine of Rs. 10.000. That the appellant might avail of the option, pay the fine and clear the said goods, when questions as to the rate of duty and value for purposes of assessment might possibly arise, is far too remote a contingency to satisfy the test that is laid down.
### Response:
0
### Explanation:
Section 130 (1) states that the Collector of Customs or the other party may require CEGAT to refer to the High Court any question of law arising out of an order under appeal before it provided it is not an order relating among other things to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment. Clause (b) of SectionE provides that an appeal shall lie to the Supreme Court from any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment9. The importance of the present appeal lies not so much in deciding which appeals can be heard by a member of CEGAT sitting singly and which by a Special Bench thereof as in determining where a reference can be made by CEGAT to the High Court and in which cases an appeal against an order of CEGAT can be filed directly before the Supreme Court. Where an appeal lies to the Supreme Court, the necessity of a reference on a question of law to the High Court is obviated. An appeal to this Court is provided where, as aforementioned, the questions in issue, relating to the rates of duty or the value of goods for the purposes of assessment, have relevance not only for the parties there concerned but for other importers as well11. It will be seen thatn 5 uses the said expressionn of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment and the Explanation thereto provides a definition of it for the purposes of this. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption Notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression ton 5 of Section, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption Notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods12. This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT: does the question that requires determination have a direct and proximate relation for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods13. The order of the Additional Collector under appeal before CEGAT in the present case did not have any direct or proximate relation, for the purposes of assessment, either to the rate of duty applicable to the said goods or to the value thereof. All that the Additional Collectors order did was to confiscate the said goods allowing to the appellant the option of redeeming them upon payment of a fine of Rs. 10.000. That the appellant might avail of the option, pay the fine and clear the said goods, when questions as to the rate of duty and value for purposes of assessment might possibly arise, is far too remote a contingency to satisfy the test that is laid down.
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State of Punjab and Others Vs. Raja Ram and Others | a Company registered under the Indian Companies Act, 1882 or under the (English) Companies Act, 1862 to 1890 or incorporated by an Act of Parliament of the United Kingdom or by an Indian law or by Royal Charter or Letters Patent and includes a society registered under the societies Registration Act, 1860, and a registered society within the meaning of the Co-operative Societies Act, 1912 or any other law relating to co -operative societies for the time being in force in any State." 6. The section mentions in unmistakable terms that a company incorporated by an Indian law would be a Company for the purposes of the L.A. Act. Now the corporation was admittedly created by section 3 of the Food Corporation Act, 1964 (hereinafter called the F.C. Act). That section states:"3. (1) With effect from such date as the Central Government may, by notification in the Official Gazette, specify in this behalf, the Central Government shall establish for the purposes of this Act a Corporation known as the Food Corporation of India. (2) The Corporation shall be a body corporate with the name, aforesaid, having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract, and may, by that name, sue and be sued." 7. Sub-section (2) which we need hardly say, is an Indian law, clothes the Corporation with the attributes of a company. It cannot, therefore, be contended with any plausibility that the Corporation is not a Company within the meaning of the definition of that term appearing in clause (e) of section 3 of the L.A. Act. 8. Learned counsel for the appellant then urged that the Corporation is a Government department. We are unable to accept this submission also. A Government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own. The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government. The Corporation, on the other hand, is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract. It may also sue or be sued by its own name and the Government does not figure in any litigation to which it is a party. It is true that its original share capital is provided by the Central Government (section 5 of the F.C. Act) and that 11 out of the 12 members of its Board of Directors are appointed by that Government (section 7 of the F.C. Act) but then these factors may at the most lead to the conclusion (about which we express no final opinion) that the Corporation is an agency or instrumentality of the Central Government. In this connection we may cite with advantage t he following observations of this Court in Ramana Dayaram Shetty v. The International Authority of India and Ors:"A Corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act, 1956 or the Societies Registration Act, 1860. Where a corporation is wholly controlled by government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a Corporation incorporated under law is managed by a Board of Directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government ? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so wh at should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial ? Now, one thing is clear that if the entire share capital of the Corporation is held by Government it would be a long way towards indicating that the Corporation is an instrumentality or agency of Government. But, as is quite often the case the Corpo ration established by statute may have no share or shareholders in which case it would be a relevant factor to consider whether the administration is in the hands of a Board of Directors appointed by Government though this conside ration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions." Even the conclusion , however, that the Corporation is an agency or instrumentality of the Central Government does not lead to the further inference that the Corporation is a Government department. The reason is that the F.C. Act has given the Corporation an individuality apart from that of the Government. In any case the Corporation cannot be divested of its character as a Company within the meaning of the definition in clause (e) of section 3 of the L.A. Act, for it completely fulfils the requirements of that clause, as held by us above. 9. The Corporation being a Company, compliance with the provisions of Chapter VII of the L.A. Act had to be made in order to lawfully acquire any land for its purpose. It is not denied that such compliance is completely lacking in the present case. | 0[ds]n (2) which we need hardly say, is an Indian law, clothes the Corporation with the attributes of a company. It cannot, therefore, be contended with any plausibility that the Corporation is not a Company within the meaning of the definition of that term appearing in clause (e) of section 3 of the L.A. ActWe are unable to accept this submission also. A Government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own. The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government. The Corporation, on the other hand, is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract. It may also sue or be sued by its own name and the Government does not figure in any litigation to which it is a party. It is true that its original share capital is provided by the Central Government (section 5 of the F.C. Act) and that 11 out of the 12 members of its Board of Directors are appointed by that Government (section 7 of the F.C. Act) but then these factors may at the most lead to the conclusion (about which we express no final opinion) that the Corporation is an agency or instrumentality of the Central Government. In this connection we may cite with advantage t he following observations of this Court in Ramana Dayaram Shetty v. The International Authority of India andA Corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such asthe Companies Act, 1956 or the Societies Registration Act, 1860. Where a corporation is wholly controlled by government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a Corporation incorporated under law is managed by a Board of Directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government ? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so wh at should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial ? Now, one thing is clear that if the entire share capital of the Corporation is held by Government it would be a long way towards indicating that the Corporation is an instrumentality or agency of Government. But, as is quite often the case the Corpo ration established by statute may have no share or shareholders in which case it would be a relevant factor to consider whether the administration is in the hands of a Board of Directors appointed by Government though this conside ration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of theirn the conclusion , however, that the Corporation is an agency or instrumentality of the Central Government does not lead to the further inference that the Corporation is a Government department. The reason is that the F.C. Act has given the Corporation an individuality apart from that of the Government. In any case the Corporation cannot be divested of its character as a Company within the meaning of the definition in clause (e) of section 3 of the L.A. Act, for it completely fulfils the requirements of that clause, as held by us above9. The Corporation being a Company, compliance with the provisions of Chapter VII of the L.A. Act had to be made in order to lawfully acquire any land for its purpose. It is not denied that such compliance is completely lacking in the present case. | 0 | 1,893 | 822 | ### 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:
a Company registered under the Indian Companies Act, 1882 or under the (English) Companies Act, 1862 to 1890 or incorporated by an Act of Parliament of the United Kingdom or by an Indian law or by Royal Charter or Letters Patent and includes a society registered under the societies Registration Act, 1860, and a registered society within the meaning of the Co-operative Societies Act, 1912 or any other law relating to co -operative societies for the time being in force in any State." 6. The section mentions in unmistakable terms that a company incorporated by an Indian law would be a Company for the purposes of the L.A. Act. Now the corporation was admittedly created by section 3 of the Food Corporation Act, 1964 (hereinafter called the F.C. Act). That section states:"3. (1) With effect from such date as the Central Government may, by notification in the Official Gazette, specify in this behalf, the Central Government shall establish for the purposes of this Act a Corporation known as the Food Corporation of India. (2) The Corporation shall be a body corporate with the name, aforesaid, having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract, and may, by that name, sue and be sued." 7. Sub-section (2) which we need hardly say, is an Indian law, clothes the Corporation with the attributes of a company. It cannot, therefore, be contended with any plausibility that the Corporation is not a Company within the meaning of the definition of that term appearing in clause (e) of section 3 of the L.A. Act. 8. Learned counsel for the appellant then urged that the Corporation is a Government department. We are unable to accept this submission also. A Government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own. The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government. The Corporation, on the other hand, is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract. It may also sue or be sued by its own name and the Government does not figure in any litigation to which it is a party. It is true that its original share capital is provided by the Central Government (section 5 of the F.C. Act) and that 11 out of the 12 members of its Board of Directors are appointed by that Government (section 7 of the F.C. Act) but then these factors may at the most lead to the conclusion (about which we express no final opinion) that the Corporation is an agency or instrumentality of the Central Government. In this connection we may cite with advantage t he following observations of this Court in Ramana Dayaram Shetty v. The International Authority of India and Ors:"A Corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act, 1956 or the Societies Registration Act, 1860. Where a corporation is wholly controlled by government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a Corporation incorporated under law is managed by a Board of Directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government ? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so wh at should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial ? Now, one thing is clear that if the entire share capital of the Corporation is held by Government it would be a long way towards indicating that the Corporation is an instrumentality or agency of Government. But, as is quite often the case the Corpo ration established by statute may have no share or shareholders in which case it would be a relevant factor to consider whether the administration is in the hands of a Board of Directors appointed by Government though this conside ration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions." Even the conclusion , however, that the Corporation is an agency or instrumentality of the Central Government does not lead to the further inference that the Corporation is a Government department. The reason is that the F.C. Act has given the Corporation an individuality apart from that of the Government. In any case the Corporation cannot be divested of its character as a Company within the meaning of the definition in clause (e) of section 3 of the L.A. Act, for it completely fulfils the requirements of that clause, as held by us above. 9. The Corporation being a Company, compliance with the provisions of Chapter VII of the L.A. Act had to be made in order to lawfully acquire any land for its purpose. It is not denied that such compliance is completely lacking in the present case.
### Response:
0
### Explanation:
n (2) which we need hardly say, is an Indian law, clothes the Corporation with the attributes of a company. It cannot, therefore, be contended with any plausibility that the Corporation is not a Company within the meaning of the definition of that term appearing in clause (e) of section 3 of the L.A. ActWe are unable to accept this submission also. A Government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own. The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government. The Corporation, on the other hand, is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract. It may also sue or be sued by its own name and the Government does not figure in any litigation to which it is a party. It is true that its original share capital is provided by the Central Government (section 5 of the F.C. Act) and that 11 out of the 12 members of its Board of Directors are appointed by that Government (section 7 of the F.C. Act) but then these factors may at the most lead to the conclusion (about which we express no final opinion) that the Corporation is an agency or instrumentality of the Central Government. In this connection we may cite with advantage t he following observations of this Court in Ramana Dayaram Shetty v. The International Authority of India andA Corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such asthe Companies Act, 1956 or the Societies Registration Act, 1860. Where a corporation is wholly controlled by government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a Corporation incorporated under law is managed by a Board of Directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government ? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so wh at should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial ? Now, one thing is clear that if the entire share capital of the Corporation is held by Government it would be a long way towards indicating that the Corporation is an instrumentality or agency of Government. But, as is quite often the case the Corpo ration established by statute may have no share or shareholders in which case it would be a relevant factor to consider whether the administration is in the hands of a Board of Directors appointed by Government though this conside ration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of theirn the conclusion , however, that the Corporation is an agency or instrumentality of the Central Government does not lead to the further inference that the Corporation is a Government department. The reason is that the F.C. Act has given the Corporation an individuality apart from that of the Government. In any case the Corporation cannot be divested of its character as a Company within the meaning of the definition in clause (e) of section 3 of the L.A. Act, for it completely fulfils the requirements of that clause, as held by us above9. The Corporation being a Company, compliance with the provisions of Chapter VII of the L.A. Act had to be made in order to lawfully acquire any land for its purpose. It is not denied that such compliance is completely lacking in the present case.
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Bhaiya Ram Munda Vs. Anirudh Patar & Ors | It was therefore necessary to find out which caste was meant by the use of the name Bhovi and for that purpose evidence was rightly recorded by the Tribunal and acted upon by the High Court. This Court accordingly confirmed the view of the High Court. The decision in this case lends no support to the contention that evidence is inadmissible for the purpose of showing what an entry in the Presidential Order was intended to mean.33. The next case in the order of sequence is Bhaiyalal v. Harikishan Singh and Others. ((1965) 2 SCR 877 : AIR 1965 SC 1557 : (1966) 2 SCJ 77) In that case an election to a State Legislature was challenged on the ground that the successful candidate belonged to the Dohar caste which was not recognized as a Scheduled Caste for the district in question, and on that ground the successful candidate was not competent to stand for election. The Election Tribunal declared the election invalid and the finding was confirmed on appeal by the High Court. It was held by this Court that the plea that the appellant is not a Chamar, and as such, he could not claim the status of a Chamar claiming that he belonged to Dohar Caste which is a sub-caste of the Chamar Caste, and that an enquiry of the kind would not be permissible having regard to the provisions contained in Article 341 of the Constitution. It was urged in that case that Chamars were recognised as a Scheduled Caste but not the Dohar. The successful candidate was, it was found, a Dohar and was not a Chamar. The Court declined to allow a plea to be raised that Dohars were in some areas recognised as a sub-caste of Chamars. The contention was plainly futile, once it was held that the candidate was not a Chamar in the constituency to which the Order related and Dohars were not a Scheduled caste. The Court observed that in specifying castes, races or tribes under Article 341 of the Constitution, the President had been expressly authorised to limit the notification to parts of or groups within the caste, race or tribe, and the President may well come to the conclusion that not the whole caste, race, or tribe, but parts of or groups within them should be specified. Similarly the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to the parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. On that view the Court upheld the decision of the High Court that the successful candidate who was a Dohar was not, in the constituency from which the case arose a Chamar within the meaning of the Constitution (Scheduled Castes) Order, 1950.34. In Laxman Siddappa Naik v. Kattimani Chaniappa Famappanna & Others ((1968) 2 SCR 805 : AIR 1968 SC 929 : 2 SCJ 560) an unsuccessful candidate for election to the Mysore Legislative Assembly for a seat reserved for a member of the Scheduled Tribes filed an election petition alleging that the other three candidates were Badars, a tribe not specified in Part VIII, Para 2 of the Constitution (Scheduled Tribes) Order, 1950. The successful candidate asserted that he was a Nayaka and the Nayakas were also called Badars. The High Court held that there was no Nayaka in the area and successful candidate was a Badar. This Court allowed the appeal and held that Nayakas were to be found not only in the districts of Mysore but also in Maharashtra and Rajasthan. "This tribal community was therefore wide-spread" and it was not possible to say that there was no Nayaka in the district to which the appellant belonged. A bare assertion by the election petitioner that the appellant was a Badar did not suffice to displace the acceptance of the nomination paper or the claim of the appellant that he was a Nayaka.35. In the present case it is not the contention of the first respondent that he was a Patar-member of a tribe which is not Munda, but he was recognized as a Munda. His case was that in his tribe he was as a Munda Patars.36. Attention may also be directed to a recent judgment of this Court in Dina v. Narayan Singh & Another. (C.A, No. 1628 of 1967, decided on May 21, 1968) In that case Dina Narayan Singh was declared elected to the Maharashtra Legislative Assembly from the Armori Scheduled Tribes constituency. His election was set aside on the application filed by the first respondent on the ground that Dina was not eligible to stand as a candidate from a reserved constituency. Dina had declared in his nomination paper that he was a member of the Gond (Mana) caste and the same was a Scheduled Tribe in Taluka Cadchiroli of District Chanda in that the Maharashtra State and being a Gond though styled as Mana he was entitled to the privileges given by the Constitution (Scheduled Castes) Order, 1950. This Court on a consideration of the evidence came to the conclusion that there was no sub-tribe of Maratha Manas in the Gonds. It was found that the customs, manners, forms of worship and dress of the members of the Maratha Mana community were all different from the customs, manners, form of worship and dress of the Gonds. In that view the Court held that Mana community amongst the Marathas could not be regarded as Gond and the appellant was not entitled to stand for election as Gond. The decision clearly decides that the name by which a tribe or sub-tribe is known is not decisive. Even if the tribe of a person is different from the name included in the Order issued by the President, it may be shown that the name included in the Order is a general name applicable to sub-tribes. | 0[ds]Though an admission made by him expressly or by implication that he is not a member of a Scheduled Tribe is evidence against him in an election petition, the evidence is not conclusive.The evidence given on behalf of the first respondent is amply supported by studies made by distinguished anthropologists. The first respondent was without any objection recorded in the voters list as a member of the Scheduled Tribe. He was elected in 1962 elections from a Scheduled Tribe constituency. He again contested the election from that constituency in 1967 but he was defeated. It is only in 1969 when at the fresh elections that he contested the seat and was declared elected when an objection was raised that he did not belong to a Scheduled Tribe. On a consideration of all the evidence we are of the view that Patars are a sub-tribe of Mundas and that they are not different from Mundas.30. The alternative argument advanced by counsel for the appellant has also no substance. It is true that in Part III of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, issued under Article 342 of the Constitution the name "Munda" is mentioned and similarly the names of other sub-tribes amongst Mundas are mentioned. for the appellant contended that if according to Dr. Sachchidanand Mahalis, Ho, Bhumijs, Assur, Baaig and Khangara are Mundas, specific mention of some of those tribes in the Schedule Tribes Order clearly indicated that Patars who are not mentioned therein are not a scheduled Tribe within the meaning of the Order. There is, however, no warrant for that view. If Patars are Mundas, because some sub-tribes of Mundas are enumerated in the Order and others are not, no inference will arise that those not enumerated are not Mundas. We are unable to hold that because Patars are not specifically mentioned in the List they cannot be included in the general heading Munda.31. Decisions in support of the contention that the Courts cannot allow evidence to be taken for proving that certain classes of people though not expressly designated in the Presidential Order were intended to be covered by the Order may be briefly referred to. It may suffice to state, however, that it is not the case of the first respondent that Patars are a distinct community, but that they should be regarded as Mundas because of the similarity of customs, religious beliefs, forms of worship and other social obligations.In the present case it is not the contention of the first respondent that he was a Patar-member of a tribe which is not Munda, but he was recognized as a Munda. His case was that in his tribe he was as a Munda Patars.36. Attention may also be directed to a recent judgment of this Court in Dina v. Narayan Singh & Another. (C.A, No. 1628 of 1967, decided on May 21, 1968) In that case Dina Narayan Singh was declared elected to the Maharashtra Legislative Assembly from the Armori Scheduled Tribes constituency. His election was set aside on the application filed by the first respondent on the ground that Dina was not eligible to stand as a candidate from a reserved constituency. Dina had declared in his nomination paper that he was a member of the Gond (Mana) caste and the same was a Scheduled Tribe in Taluka Cadchiroli of District Chanda in that the Maharashtra State and being a Gond though styled as Mana he was entitled to the privileges given by the Constitution (Scheduled Castes) Order, 1950. This Court on a consideration of the evidence came to the conclusion that there was no sub-tribe of Maratha Manas in the Gonds. It was found that the customs, manners, forms of worship and dress of the members of the Maratha Mana community were all different from the customs, manners, form of worship and dress of the Gonds. In that view the Court held that Mana community amongst the Marathas could not be regarded as Gond and the appellant was not entitled to stand for election as Gond. The decision clearly decides that the name by which a tribe or sub-tribe is known is not decisive. Even if the tribe of a person is different from the name included in the Order issued by the President, it may be shown that the name included in the Order is a general name applicable to sub-tribes. | 0 | 5,638 | 799 | ### 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:
It was therefore necessary to find out which caste was meant by the use of the name Bhovi and for that purpose evidence was rightly recorded by the Tribunal and acted upon by the High Court. This Court accordingly confirmed the view of the High Court. The decision in this case lends no support to the contention that evidence is inadmissible for the purpose of showing what an entry in the Presidential Order was intended to mean.33. The next case in the order of sequence is Bhaiyalal v. Harikishan Singh and Others. ((1965) 2 SCR 877 : AIR 1965 SC 1557 : (1966) 2 SCJ 77) In that case an election to a State Legislature was challenged on the ground that the successful candidate belonged to the Dohar caste which was not recognized as a Scheduled Caste for the district in question, and on that ground the successful candidate was not competent to stand for election. The Election Tribunal declared the election invalid and the finding was confirmed on appeal by the High Court. It was held by this Court that the plea that the appellant is not a Chamar, and as such, he could not claim the status of a Chamar claiming that he belonged to Dohar Caste which is a sub-caste of the Chamar Caste, and that an enquiry of the kind would not be permissible having regard to the provisions contained in Article 341 of the Constitution. It was urged in that case that Chamars were recognised as a Scheduled Caste but not the Dohar. The successful candidate was, it was found, a Dohar and was not a Chamar. The Court declined to allow a plea to be raised that Dohars were in some areas recognised as a sub-caste of Chamars. The contention was plainly futile, once it was held that the candidate was not a Chamar in the constituency to which the Order related and Dohars were not a Scheduled caste. The Court observed that in specifying castes, races or tribes under Article 341 of the Constitution, the President had been expressly authorised to limit the notification to parts of or groups within the caste, race or tribe, and the President may well come to the conclusion that not the whole caste, race, or tribe, but parts of or groups within them should be specified. Similarly the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to the parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. On that view the Court upheld the decision of the High Court that the successful candidate who was a Dohar was not, in the constituency from which the case arose a Chamar within the meaning of the Constitution (Scheduled Castes) Order, 1950.34. In Laxman Siddappa Naik v. Kattimani Chaniappa Famappanna & Others ((1968) 2 SCR 805 : AIR 1968 SC 929 : 2 SCJ 560) an unsuccessful candidate for election to the Mysore Legislative Assembly for a seat reserved for a member of the Scheduled Tribes filed an election petition alleging that the other three candidates were Badars, a tribe not specified in Part VIII, Para 2 of the Constitution (Scheduled Tribes) Order, 1950. The successful candidate asserted that he was a Nayaka and the Nayakas were also called Badars. The High Court held that there was no Nayaka in the area and successful candidate was a Badar. This Court allowed the appeal and held that Nayakas were to be found not only in the districts of Mysore but also in Maharashtra and Rajasthan. "This tribal community was therefore wide-spread" and it was not possible to say that there was no Nayaka in the district to which the appellant belonged. A bare assertion by the election petitioner that the appellant was a Badar did not suffice to displace the acceptance of the nomination paper or the claim of the appellant that he was a Nayaka.35. In the present case it is not the contention of the first respondent that he was a Patar-member of a tribe which is not Munda, but he was recognized as a Munda. His case was that in his tribe he was as a Munda Patars.36. Attention may also be directed to a recent judgment of this Court in Dina v. Narayan Singh & Another. (C.A, No. 1628 of 1967, decided on May 21, 1968) In that case Dina Narayan Singh was declared elected to the Maharashtra Legislative Assembly from the Armori Scheduled Tribes constituency. His election was set aside on the application filed by the first respondent on the ground that Dina was not eligible to stand as a candidate from a reserved constituency. Dina had declared in his nomination paper that he was a member of the Gond (Mana) caste and the same was a Scheduled Tribe in Taluka Cadchiroli of District Chanda in that the Maharashtra State and being a Gond though styled as Mana he was entitled to the privileges given by the Constitution (Scheduled Castes) Order, 1950. This Court on a consideration of the evidence came to the conclusion that there was no sub-tribe of Maratha Manas in the Gonds. It was found that the customs, manners, forms of worship and dress of the members of the Maratha Mana community were all different from the customs, manners, form of worship and dress of the Gonds. In that view the Court held that Mana community amongst the Marathas could not be regarded as Gond and the appellant was not entitled to stand for election as Gond. The decision clearly decides that the name by which a tribe or sub-tribe is known is not decisive. Even if the tribe of a person is different from the name included in the Order issued by the President, it may be shown that the name included in the Order is a general name applicable to sub-tribes.
### Response:
0
### Explanation:
Though an admission made by him expressly or by implication that he is not a member of a Scheduled Tribe is evidence against him in an election petition, the evidence is not conclusive.The evidence given on behalf of the first respondent is amply supported by studies made by distinguished anthropologists. The first respondent was without any objection recorded in the voters list as a member of the Scheduled Tribe. He was elected in 1962 elections from a Scheduled Tribe constituency. He again contested the election from that constituency in 1967 but he was defeated. It is only in 1969 when at the fresh elections that he contested the seat and was declared elected when an objection was raised that he did not belong to a Scheduled Tribe. On a consideration of all the evidence we are of the view that Patars are a sub-tribe of Mundas and that they are not different from Mundas.30. The alternative argument advanced by counsel for the appellant has also no substance. It is true that in Part III of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, issued under Article 342 of the Constitution the name "Munda" is mentioned and similarly the names of other sub-tribes amongst Mundas are mentioned. for the appellant contended that if according to Dr. Sachchidanand Mahalis, Ho, Bhumijs, Assur, Baaig and Khangara are Mundas, specific mention of some of those tribes in the Schedule Tribes Order clearly indicated that Patars who are not mentioned therein are not a scheduled Tribe within the meaning of the Order. There is, however, no warrant for that view. If Patars are Mundas, because some sub-tribes of Mundas are enumerated in the Order and others are not, no inference will arise that those not enumerated are not Mundas. We are unable to hold that because Patars are not specifically mentioned in the List they cannot be included in the general heading Munda.31. Decisions in support of the contention that the Courts cannot allow evidence to be taken for proving that certain classes of people though not expressly designated in the Presidential Order were intended to be covered by the Order may be briefly referred to. It may suffice to state, however, that it is not the case of the first respondent that Patars are a distinct community, but that they should be regarded as Mundas because of the similarity of customs, religious beliefs, forms of worship and other social obligations.In the present case it is not the contention of the first respondent that he was a Patar-member of a tribe which is not Munda, but he was recognized as a Munda. His case was that in his tribe he was as a Munda Patars.36. Attention may also be directed to a recent judgment of this Court in Dina v. Narayan Singh & Another. (C.A, No. 1628 of 1967, decided on May 21, 1968) In that case Dina Narayan Singh was declared elected to the Maharashtra Legislative Assembly from the Armori Scheduled Tribes constituency. His election was set aside on the application filed by the first respondent on the ground that Dina was not eligible to stand as a candidate from a reserved constituency. Dina had declared in his nomination paper that he was a member of the Gond (Mana) caste and the same was a Scheduled Tribe in Taluka Cadchiroli of District Chanda in that the Maharashtra State and being a Gond though styled as Mana he was entitled to the privileges given by the Constitution (Scheduled Castes) Order, 1950. This Court on a consideration of the evidence came to the conclusion that there was no sub-tribe of Maratha Manas in the Gonds. It was found that the customs, manners, forms of worship and dress of the members of the Maratha Mana community were all different from the customs, manners, form of worship and dress of the Gonds. In that view the Court held that Mana community amongst the Marathas could not be regarded as Gond and the appellant was not entitled to stand for election as Gond. The decision clearly decides that the name by which a tribe or sub-tribe is known is not decisive. Even if the tribe of a person is different from the name included in the Order issued by the President, it may be shown that the name included in the Order is a general name applicable to sub-tribes.
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All India Ex-Emergency Commissioned Officers and Short Commd. Officers Welfare Assn. and Another Etc Vs. Union of India and Another | Hansaria, J. 1. The Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971 (for short, the Rules) came to be framed by the President of India to compensate the emergency commissioned officers for the chances they had lost by entering public services during the time the company needed them. The Rules apply to those who were commissioned after the 1st November, 1962 but before the 10th January, 1968 and make certain percentage of reservation in all Central Civil Services and their seniority, on entering these services, is determined on the assumption that they entered the same at the first opportunity they had after joining the training prior to their Commission or the date of their Commission." The prayer of the All India Ex-Emergency Commissioned Officers and Short Service Commissioner Officers Welfare Association and other petitioners is that the same benefit should be made available to there categories of person when they join the non-reserved posts also. 2. Shri Kapoor addressed us on behalf of the aforesaid Association has strenuously contended that as the object behind the framing of the Rules was to compensate for the last opportunity there is no compensate for the last opportunity there is no rational basis in classifying the aforesaid officers in two categories holders of reserved posts and non-reserved posts. According to the learned counsel, such a classification is hit by Article 14 on the well accepted principle that a classification to pass the test of this Article is not only to be founded on intelligible differentia, but the same must also have a rational relation to the object sought to be achieved i.e., there must be a nexus between the basis of classification and the object behind the same. 3. There can be no quarrel with the aforesaid legal proposition; it has become well entrenched by now. We do not, however, view this matter as one of classifying the aforesaid ex-servicemen in two categories mentioned by Shri Kapoor. According to us, a policy decision was taken to give some benefit to those servicemen who had stood with the people when the country was invaded and has rendered useful service during the emergency in question. How much benefit and in what shape it ought to have been given are not matters on which courts can have any say, these are exclusively for the executive to decide. The courts come into picture in such policy matters if the same be either illegal or irrational or were to suffer from procedural improperly, as reiterated recently by this Court in Tata Cellular v. Union of India. We do not find any such infirmity in the policy at hand. 4. This is not all. As the recruitment for the reserved post is through separate method, as stated in para 6(b) of the reply filed on behalf of respondents Nos. 1 and 2 to Writ Petition No. 151 of 1989, there is no possibility of some of the released officers obtaining reserved posts with the benefit available under the Rules, and others obtaining nonreserved posts with the benefit visualised by the Rules. So the two types of incumbents have to be taken as belonging to two different categories; the one having no clash of interest with the other; the one being denied no benefit available to the other. | 0[ds]3. There can be no quarrel with the aforesaid legal proposition; it has become well entrenched by now. We do not, however, view this matter as one of classifying the aforesaid ex-servicemen in two categories mentioned by Shri Kapoor. According to us, a policy decision was taken to give some benefit to those servicemen who had stood with the people when the country was invaded and has rendered useful service during the emergency in question. How much benefit and in what shape it ought to have been given are not matters on which courts can have any say, these are exclusively for the executive to decide. The courts come into picture in such policy matters if the same be either illegal or irrational or were to suffer from procedural improperly, as reiterated recently by this Court in Tata Cellular v. Union of India. We do not find any such infirmity in the policy at hand.This is not all. As the recruitment for the reserved post is through separate method, as stated in para 6(b) of the reply filed on behalf of respondents Nos. 1 and 2 to Writ Petition No. 151 of 1989, there is no possibility of some of the released officers obtaining reserved posts with the benefit available under the Rules, and others obtaining nonreserved posts with the benefit visualised by the Rules. So the two types of incumbents have to be taken as belonging to two different categories; the one having no clash of interest with the other; the one being denied no benefit available to the other. | 0 | 603 | 290 | ### 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:
Hansaria, J. 1. The Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971 (for short, the Rules) came to be framed by the President of India to compensate the emergency commissioned officers for the chances they had lost by entering public services during the time the company needed them. The Rules apply to those who were commissioned after the 1st November, 1962 but before the 10th January, 1968 and make certain percentage of reservation in all Central Civil Services and their seniority, on entering these services, is determined on the assumption that they entered the same at the first opportunity they had after joining the training prior to their Commission or the date of their Commission." The prayer of the All India Ex-Emergency Commissioned Officers and Short Service Commissioner Officers Welfare Association and other petitioners is that the same benefit should be made available to there categories of person when they join the non-reserved posts also. 2. Shri Kapoor addressed us on behalf of the aforesaid Association has strenuously contended that as the object behind the framing of the Rules was to compensate for the last opportunity there is no compensate for the last opportunity there is no rational basis in classifying the aforesaid officers in two categories holders of reserved posts and non-reserved posts. According to the learned counsel, such a classification is hit by Article 14 on the well accepted principle that a classification to pass the test of this Article is not only to be founded on intelligible differentia, but the same must also have a rational relation to the object sought to be achieved i.e., there must be a nexus between the basis of classification and the object behind the same. 3. There can be no quarrel with the aforesaid legal proposition; it has become well entrenched by now. We do not, however, view this matter as one of classifying the aforesaid ex-servicemen in two categories mentioned by Shri Kapoor. According to us, a policy decision was taken to give some benefit to those servicemen who had stood with the people when the country was invaded and has rendered useful service during the emergency in question. How much benefit and in what shape it ought to have been given are not matters on which courts can have any say, these are exclusively for the executive to decide. The courts come into picture in such policy matters if the same be either illegal or irrational or were to suffer from procedural improperly, as reiterated recently by this Court in Tata Cellular v. Union of India. We do not find any such infirmity in the policy at hand. 4. This is not all. As the recruitment for the reserved post is through separate method, as stated in para 6(b) of the reply filed on behalf of respondents Nos. 1 and 2 to Writ Petition No. 151 of 1989, there is no possibility of some of the released officers obtaining reserved posts with the benefit available under the Rules, and others obtaining nonreserved posts with the benefit visualised by the Rules. So the two types of incumbents have to be taken as belonging to two different categories; the one having no clash of interest with the other; the one being denied no benefit available to the other.
### Response:
0
### Explanation:
3. There can be no quarrel with the aforesaid legal proposition; it has become well entrenched by now. We do not, however, view this matter as one of classifying the aforesaid ex-servicemen in two categories mentioned by Shri Kapoor. According to us, a policy decision was taken to give some benefit to those servicemen who had stood with the people when the country was invaded and has rendered useful service during the emergency in question. How much benefit and in what shape it ought to have been given are not matters on which courts can have any say, these are exclusively for the executive to decide. The courts come into picture in such policy matters if the same be either illegal or irrational or were to suffer from procedural improperly, as reiterated recently by this Court in Tata Cellular v. Union of India. We do not find any such infirmity in the policy at hand.This is not all. As the recruitment for the reserved post is through separate method, as stated in para 6(b) of the reply filed on behalf of respondents Nos. 1 and 2 to Writ Petition No. 151 of 1989, there is no possibility of some of the released officers obtaining reserved posts with the benefit available under the Rules, and others obtaining nonreserved posts with the benefit visualised by the Rules. So the two types of incumbents have to be taken as belonging to two different categories; the one having no clash of interest with the other; the one being denied no benefit available to the other.
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India Cement Limited and Others Vs. State of Tamil Nadu and Others | not invited to the provisions of Mines and Minerals (Development and Regulation) Act, 1957 and Section 9 thereof. Section 9 (3) of the Act in terms states that royalties payable under the Second Schedule of the Act shall not be enhanced more than once during a period of four years. It is, therefore, a clear bar on the State legislature taxing royalty so as to in effect amend Section Schedule of the Central Act. In the premises, it cannot be right to say that tax on royalty can be a tax on land, and even if it is a tax, if it falls within Entry 50 will be ultra vires the State legislative power in view of Section 9(3) of the Central Act. In Hingir-Rampur Coal Co. Ltd. v. State of Orissa ((1961) 2 SCR 537 : AIR 1961 SC 459 ), Wanchoo, J. in his dissenting judgment has stated that a tax on mineral rights being different from a duty of excise pertains only to a tax that is leviable for the grant of the right to extract minerals, and is not a tax on minerals as well. On that basis, a tax on royalty would not be a tax on mineral rights and would therefore in any event be outside the competence of the State legislature. . The Rajasthan, Punjab, Gujarat and Orissa High Courts have held that royalty is not a tax See Bherulal v. State of Rajasthan (AIR 1956 Raj 161 -62 : 1955 Cri LJ 1390), Dr. S. S. Sharma v. State of Punjab (AIR 1969 P & H 79, 84 : ILR (1969) 1 Punj 680), Saurashtra Cement and Chemicals Industries Ltd. v. Union of India (AIR 1979 Guj 180 , 184 : (1979) 20 Guj LR 895), L. N. Agarwalla v. State of Orissa (AIR 1983 Ori 210 : (1983) 55 Cut LT 364). 31. It was contended by Mr. Krishnamurthy Iyer that the State has a right to tax minerals. It was further contended that if tax is levied, it will not be irrational to correlate it to the value of the property and to make some kind of annual value basis of tax without intending to tax the income. In view of the provisions of the Act, as noted hereinbefore, this submission cannot be accepted. Mr. Krishnamurthy Iyer also further sought to urge that in Entry 50 of List II, there is no limitation to the taxing power of the State. In view of the principles mentioned therein-before and the clauses provisions of Section 9(2) of the Mines and Minerals (Regulation and Development) Act, 1957, this submission can not be accepted. This field is fully covered by the central legislation.32. In any event, royalty is directly relatable only to the minerals extracted and on the principle that are general provision is excluded by the special one, royalty would be relatable to Entries 23 and 50 of List II, and Entry 49 of List II. But as the fee is covered by the central power under Entry 23 or Entry 50 of List. II, the impugned legislation cannot be upheld. Our attention was drawn to a judgment of the High Court of Madhya Pradesh in Miscellaneous Petition No. 410 of 1983 - Hiralal Rameshwar Prasad v. State of Madhya Pradesh (Miscellaneous Petition No. 410 of 1983, decided on March 28, 1986 (MP HC) (DB) which was delivered on March 28, 1986 by a Division Bench of the High Court J. S. Verma, Acting Chief Justice, as His Lordship then was, held that development cess by Section 9 of the Madhya Pradesh Karadhan Adhiniyam, 1982 is ultra vires. It is not necessary in the view taken by us, and further in view that the said decision is under appeal in this Court, to examine it in detail.33. In the aforesaid view of the matter, we are of the opinion that royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State legislature because Section 9 of the Central Act covers the field and the State legislature is denuded of its competence under Entry 23 of List II. In any event, we are of the opinion that cess on royalty cannot be sustained under Entry 49 of List II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user of land. 34. Mr. Krishnamurthy Iyer, however, submitted that in any event, the decision in H. R. S. Murthy case ((1964) 6 SCR 666 : AIR 1965 SC 177 ) was the decision of the Constitution Bench of this Court. Cess has been realised on that basis for the organisation of village and town panchayats and comprehensive programme of measures had been framed under the National Extension Service Scheme to which our attention was drawn. Mr. Krishnamurthy Iyer further submitted that the Directive Principle of State Policy embodied in the Constitution enjoined that the State should take steps to organise village panchayats and endow them with power and authority as may be necessary to enable them to function as units of self-government and as the amounts have been realised on that basis, if at all, we should declare the said cess on royalty to be ultra vires prospectively. In other words, the amounts that have been collected by virtue of the said provisions, should not be declared to be illegal retrospectively and the State made liable to refund the same. We see good deal of substance in this submission. After all, there was a decision of this Court in H. R. S. Murthy case ((1964) 6 SCR 666 : AIR 1965 SC 177 ) and amounts have been collected on the basis that the said decision was the correct position. We are, therefore, of the opinion that we will be justified in declaring the levy of the said cess to be ultra vires the power of the State legislature prospectively only. | 1[ds]10. The appellant is bound to pay royalty to the government according to the rates provided in the Second Schedule to the said Act of 1957. Clause (1) of Part VII of the lease document provides aslessee/lessees shall pay the rent, water rate and royalties reserved by this lease at such times and in the manner provided in Parts V and VI of these presents and shall also pay and discharge all taxes, rates, assessment and impositions whatsoever being in the nature of public demand which shall from time to time be charged, assessed or imposed by the authority of the Central and State Government upon or in respect of the premises and works of the lessee/lessees in common with other premises and work of a like nature except demands for landAs mentioned hereinbefore, there is an obligation of the lessee to pay rent and other charges mentioned in the said clause, and all other Central and State Government dues "except demands for land revenue".In this connection, it may be appropriate to refer to the statement of Objects and reasons for the amendment which stated, inter alia, asthe Explanation to Section 115 of the Act "land revenue" means public revenue due on land and includes water cess payable to the government for water supplied or used for the irrigation of land but does not include any other cess or surcharge payable under Section 116. The Explanation does not cover "royalties ", lease amount or other sum payable to the government in respect of land held direct from the government on lease or licence which were included in the definition of "land revenue" under the Madras District Boards Act, 1920. As under the Madras District Boards Act, 1920, certain panchayat union councils continued to levy the cess and surcharge under the Madras Panchayats Act, 1958 also. It is the considered that the levy should be on the same basis as under the Madras District Boards Act, 1920. It is, therefore, proposed to include "royalty", lease amount and other sums payable to the government" in the definition of land revenue in the Explanation to Section 115 of the Act and also to validate the levy and collection of the cess and surcharge made hitherto on the said basis.It is obvious that the said amendment was intended to bring royalty within the Explanation and the definition of land revenue in Section 115 as well as Section 116 of the Act, and was effected by the gazette notification of September 2, 1964 by Act 18 of 1964. In order to appreciate the controversy, it has to be understood that in this case royalty was payable by the appellant which was prescribed under the lease deed, the terms where of have been noted hereinbefore. The royalty had been fixed under the statutory rules and protected under those rules. The royalty was fixed under the Mines and Minerals (Regulation and Development) Act, 1957 which is a central Act by which the control of mines and minerals had been taken over by the Central Government. It was an act for the regulation of the mines and development of minerals under the control of Union of India. That Act was to provide for the regulation of mines and the development of minerals under the control of the Union of India.Certain rules have been evolved in this regard, and it is well settled now that the various entries in the three lists are not powers but fields of legislation. The power to legislate is given by Article 246 and other articles of the Constitution. See the observations of this Court in Calcutta Gas Co. v. State of West Bengal (1962 Supp 3 SCR 1 : AIR 1962 SC 1044 ). The entries in the three lists of the Seventh Schedule to the Constitution, are legislative heads or fields of legislation. These demarcate the area over which appropriate legislature can operate. It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists. See the observations of this Court in H. R. Banthia v. Union of India ((1969) 2 SCC 166 , 174 : (1970) 1 SCR 479 , 489) and Union of India v. H. S. Dhillon ((1971) 2 SCC 779 , 792). The list are designed to define and delimit the respective areas of respective competence of the Union and the States. These neither impose any implied restriction on the legislative power conferred by Article 246 of the constitution, nor prescribe any duty to exercise that legislative power in any particular manner. Hence, the language of the entries should be given widest scope, (D. C. Rataria v. Bhuwalka Brothers Ltd., (1955) 1 SCR 1071 : AIR 1955 SC 182 ) to find out which of the meaning is fairly capable because these set up machinery of the government. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. In interpreting an entry it would not be reasonable to import any limitation by comparing or contrasting that entry with any other one in the same list. It is in this background that one has to examine the present controversy.19. Here, we are concerned with cess on royalty. One can have an idea as to what cess is, from the observations of Hidayatullah, J., as the learned Chief Justice then was, in Guruswamy and Co. v. State of Mysore ((1967) 1 SCR 548 : AIR 1967 SC 1512 ) where at page 571, the learned Judgeword cess is used in Ireland and is still in use in India although the word rate has replaced it in England. It means a tax and is generally used when the levy is for some special administrative expense what the name (health cess, education cess, road cess etc.) indicates. When levied as an increment to an existing tax, the name matters not for the validity of the cess must be judged of in the same way as the validity of the tax to which it is an increment.The said observations were made in the dissenting judgment, but there was no dissent on this aspect of theis, however, not possible to accept this submission, in view of the obligation indicated by the language of the provisions. Cess is not on land, but on royalty which is included in the definition of land revenue. None of the three lists of the Seventh Schedule of the Constitution permits or authorises a State to impose tax on royalty. This levy has been sought to be justified under entry 45 of List II of the Seventh Schedule. Entry 45 deals with land revenue, which is a well known concept and has existed in India before the Constitution came into force. In N. R. Reddy v. State of A.P. ((1965) 2 Andh LT 297 (AP HC) Jaganmohan Reddy, J. as the learned Judge then was of the Andhra Pradesh High Court, while sitting in a Division Bench observed that no land revenue Act existed in the composite State of Madras nor had the ryotwari system ever been established by legislative enactment. The learned Judge at page 306 of the report observed that in the earlier days, sovereigns had in exercise of their prerogative right claimed a share of the produce of all cultivated land known as Rajabhagam or by any of the various other names, and had fixed their share or its commuted money value from time to time, according to their will and pleasure. The learned Judge noted that as long as the share of the sovereign was being paid, the sovereign had no right to the possession of the lands, and the proprietorship of these lands was vested in the occupier, who could not be removed because another offered more. The right of the sovereign to a share in the produce as observed by the Government of Madras in 1856 "is not rent which consists of all surplus produce after paying the cost of cultivation and the profits of agricultural stock but land revenue only which ought, if possible, to be so lightly assessed as to leave a surplus or rent to the occupier, when he in fact lets the land to others or retains it in his own hands". It was noted that the amount of tax that was levied before the Mohamedan rule, amounted to 1/8th, 1/6th or 11/12th according to Manu depending on the differences in the soil and the labour necessary to cultivate it, and it even went up to 1/4th part, in times of urgent necessity, as of war or invasion. The later commentators, Yajnavalkya. Apastamba, Gautama, Baudhayana and Narada, have all asserted not only the right but the extent of the share. When the British came to India they followed not only the precedent of the previous Mohamedan rulers who also claimed enormous land revenue, with this difference that what the Mohamedan rulers claimed they could never fully realise, but what the British rulers claimed they realised with vigour. It is not necessary to refer in detail how land revenue developed in India after the advent of the British rule. There was an appeal from the said decision of the High Court of Andhra Pradesh and this Court dismissed the appeal in State of A. P. v. N. R. Reddy ((1967) 3 SCR 28 : AIR 1967 SC 1458 ).21. It is, however, clear that over a period of centuries, land revenue in India has acquired a connotative meaning of share in the produce of land to which the King or the government is entitled tohas, however, to be borne in mind that Explanation to Section 115(1) was added and there was an amendment as we have noted before. That very Explanation makes a distinction between land revenue as such and royalty which by amendment is deemed to be land revenue. It is, therefore, recognised by the every force of that Explanation and the amendment thereto that the expression royalty in Sections 115 and 116 of the Act cannot mean land revenue properly called or conventionally known, which is separate and distinct fromhowever, cannot be accepted. In this connection, reference may be made to the decision of this Court in Raja Jagannath Baksh Singh v. State of U.P. ((1963) 1 SCR 220 : AIR 1962 SC 1563 : (1962) 46 ITR 169 ) where at page 229 it was indicated that the expression lands in Entry 49 is wide enough to include agricultural land as well as non-agricultural land. Gajendragadkar, J. as the learned Chief Justice then was, observed that the cardinal rule of interpreting the words used by the Constitution in conferring legislative power was that these must receive the most liberal construction and if they are words of wide amplitude the construction must accord with it. If general word was used, it must be so construed so as to extend to all ancillary or subsidiary, matters that can reasonably be included in it. So construed, there could not be any doubt that the word land in Entry 49, List II of the Seventh Schedule includes all land whether agricultural or non-agricultural. Hence, since the impugned Act imposed tax on land and building which was within the competence of the State legislature and its validity was beyond challenge but the court observed that as there was Entry 46 in List II which refers to taxes on agricultural income, it is clear that agricultural income is not included in Entry 49. If the State legislature purports to impose a tax on agricultural income it would not be referable to Entry 49. Mr. Krishnamurthy Iyer relied not said principle. But in the instant case, royalty being that which is payable on the extraction from the land and cess being an additional charge on that royalty, cannot by the parity of the same reasoning, be considered to be a tax on land. But since it was not a tax on land and there is no entry like Entry 46 in the instant situation like the position before this Court in the aforesaid decision, enabling the State to impose tax on royalty in the instant situation, the State was incompetent to impose such a tax. There is a clear distinction between tax directly on land and tax on income arising from land. The aforesaid decision confirmed the above position. In New Manek Chowk Spinning and Weaving Mills Co. Ltd. v. Municipal Corpn. of the City of Allahabad ((1967) 2 SCR 679 at 696 : AIR 1967 SC 1801 ) this Court after referring to the several decisions observed that Entry 49 of List II of the Seventh Schedule only permitted levy of tax on land and building. It did not permit the levy of tax on machinery contents (sic) in or situated on the building for a particular purpose. Rule 7(2) of the Bombay Municipal Corporation Rules was held to be accordingly ultra vires in that case. In S. C. Nawn v. W. T. O., Calcutta ((1969) 1 SCR 108 : AIR 1969 SC 59 : 69 ITR 897) this Court had occasion to consider this and upheld the validity of the Wealth Tax Act, 1957 on the ground that it fell within Entry 86 of List I and not Entry 49 of List II. Construing the said entry, this Court observed that Entry 49 List II contemplated a levy on land as a unit and the levy must be directly imposed on land and must bear a definite relationship to it. Entry 49 of List II was held to be more general in nature than Entry 86, List I, which was held to be more specific in nature and it is well settled that in the event of conflict between Entry 86, List I and Entry 49 of List II, Entry 86 prevails as per Article 246 of the Constitution.23. In Asstt. Commissioner of Urban Land Tax v. Buckingham and Carnatic Co. Ltd. ((1969) 2 SCC 55 , 62-63 : (1970) 1 SCR 268 , 278) this Court reiterated the principles laid down in S. C. Nawn case ((1969) 1 SCR 108 : AIR 1969 SC 59 : 69 ITR 897) and held that Entry 49 of List II was confined to a tax that was directly on land as a unit. In Second Gift Tax Officer, Mangalore v. D. H. Nazareth ((1970) 1 SCC 749 , 753 : (1971) 1 SCR 195 , 200) it was held that a tax on the gift of land is not a tax imposed directly on land but only on a particular user, namely, the transfer of land by way of gift. In Union of India v. H. S. Dhillon ((1971) 2 SCC 779 , 792), this Court approved the principle laid down in S. C. Nawn case ((1969) 1 SCR 108 : AIR 1969 SC 59 : 69 ITR 897) as well as Nazareth case ((1970) 1 SCC 749 , 753 : (1971) 1 SCR 195 , 200). In Bhagwan Dass Jain v. Union of India ((1981) 2 SCC 135 , 14 : 1981 SCC (Tax) 84 : (1981) 2 SCR 808 , 816) this Court made a distinction between the levy on income from house property itself which would be referable to Entry 49 List II. It is, therefore, not possible to accept.Mr. Krishnamurthy Iyers Submission and that a cess on royalty cannot possibly be said to be a tax or an impost on land. Mr. Nariman is right that royalty which is indirectly connected with land, cannot be said to be a tax directly on lands as a unit. In this connection, reference may be made to the differentiation made to the different types of taxes for instance, one being professional tax and entertainment tax. In the Western India Theatres Ltd. v. Cantonment Board, Poona Cantonment (1959 Supp 2 SCR 63, 69 : AIR 1959 SC 582 ) it was held that an entertainment tax is dependent upon whether there would or would not be a show in a cinema house. If there is no show, there is no tax. It cannot be a tax on profession or calling. Professional tax does not depend on the exercise of ones profession but only concerns itself with the right to practice. It appears that in the instant case also no tax can be levied or is leviable under the impugned Act if no mining activities are carried on. Hence, it is manifest that it is not related to land as a unit which is the only method of valuation of land under Entry 49 of List II, but is relatable to minerals extracted. Royalty is payable on a proportion of the minerals extracted. It may be mentioned that the Act does not use dead rent as a basis on which land is to be valued. Hence there cannot be any doubt that the impugned legislation in its pith and substance is a tax on royalty and not a tax on50 of List II of the Seventh Schedule deals with taxes on mineral rights subject to limitation imposed by Parliament relating to mineral development. Entry 23 of List II deals with regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union and Entry 54 in List I deals with regulation of mines and minerals under the control of Union declared by the Parliament by law to be expedient in public interest. Even though minerals are part of the State List they are treated separately, and therefore the principle that the specific excludes the general, must be applied. See the observations of Waverly Jute Mills Co. Ltd. v. Raymon and Co. (I) Pvt. Ltd. ((1963) 3 SCR 209 , 220 : AIR 1963 SC 90 ), where it was held that land in Entry 49 of List II cannot possibly include50 of List II of the Seventh Schedule deals with taxes on mineral rights subject to limitation imposed by Parliament relating to mineral development. Entry 23 of List II deals with regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union and Entry 54 in List I deals with regulation of mines and minerals under the control of Union declared by the Parliament by law to be expedient in public interest. Even though minerals are part of the State List they are treated separately, and therefore the principle that the specific excludes the general, must be applied. See the observations of Waverly Jute Mills Co. Ltd. v. Raymon and Co. (I) Pvt. Ltd. ((1963) 3 SCR 209 , 220 : AIR 1963 SC 90 ), where it was held that land in Entry 49 of List II cannot possibly includelevy in question has to be either a tax or a fee or an impost. If it is neither a tax nor a fee then it should be under one of the general entries under List II. The expression land according to its legal significance has an indefinite extent both upward and downwards, the surface of the soil and would include not only the face of the earth but everything under it or over it. See the observations in Anant Mills Co. Ltd. v. State of Gujarat ((1975) 2 SCC 175 , 204 : (1975) 3 SCR 220 , 249). The minerals which are under the earth, can in certain circumstances fall under the expression land but as tax on mineral rights is expressly covered by Entry 50 of List II, if it is brought under the head taxes under Entry 49 of List II, it would render Entry 50 of List II redundant. Learned Attorney General is right in contending that entries should not be so construed as to make any one entryspeaking for the court, one of us, Venkataramiah, J. of the Mysore High Court, as the learned Chief justice then was, observed that a combined reading of reading of Entries 23 and 50 List II and Entry 54 of List I, establishes that as long as the Parliament ones not make any law in exercise of its power under Entry 54, the powers of the State legislature in Entries 23 and 50 would be exercisable the State legislature. But when once the Parliament makes a declaration by law that it is expedient in the public interest to make regulation mines and minerals development under the control of the Union, to the extent to which such regulation and development is undertaken by the law made by the Parliament, the power of the State legislature under entries 23 and 50 of List II are denuded. There the court was concerned with the Mysore Village Panchayats and Local Boards Act, 1959. Thus, it was held that it could not, therefore, be said that even after passing of Central Act, the State legislature by enacting Section 143 of the Act to confer power on the Taluk Board to levy tax on the mining activities carried on by the persons holding mineral concessions. It followed that the levy of tax on mining by the Board as per the impugned notification was unauthorised and liable to be set aside. At page 306 of he said report, it was held that royalty under Section 9 of the Mines and Act was really a tax.28. To the similar effects are the observations of the High Court of in L. Mal v. State of Bihar (AIR 1965 Pat 491 , 494). Mr. Krishnamurthy Iyer, however, to the decision of this Court in H.R. S. Murthy case ((1964) 6 SCR 666 : AIR 1965 SC 177 ). There under terms of a mining lease the lessee worked the mines and won iron in a tract of land in a village in Chittur district and bound himself to a dead rent if he used the leased land for the extraction of iron ore, pay a royalty on iron ore if it were used for extraction of iron and in to pay a surface rent in respect of the surface area occupied or used. In the said decision the legislative competence of Sections 78 and 79 of the Madras District Boards Act was upheld by which land cess was made payable on the basis of royalty. This Court proceeded on the basis that other cess related to land and would therefore be covered by Entry 49 of List II. It was held that land cess paid on royalty has a direct relation to the land and only a remote relation with mining. This, with respect, seems to be not a correct approach. It was further observed that it was not necessary to consider the meaning of the expression tax on mineral right following under Entry 50 of List II inasmuch as according to this Court, Parliament has not made any tax on mineral rights. This is not a correct basis.It seems, therefore, that attention of the court was not invited to the provisions of Mines and Minerals (Development and Regulation) Act, 1957 and Section 9 thereof. Section 9 (3) of the Act in terms states that royalties payable under the Second Schedule of the Act shall not be enhanced more than once during a period of four years. It is, therefore, a clear bar on the State legislature taxing royalty so as to in effect amend Section Schedule of the Central Act. In the premises, it cannot be right to say that tax on royalty can be a tax on land, and even if it is a tax, if it falls within Entry 50 will be ultra vires the State legislative power in view of Section 9(3) of the Central Act. In Hingir-Rampur Coal Co. Ltd. v. State of Orissa ((1961) 2 SCR 537 : AIR 1961 SC 459 ), Wanchoo, J. in his dissenting judgment has stated that a tax on mineral rights being different from a duty of excise pertains only to a tax that is leviable for the grant of the right to extract minerals, and is not a tax on minerals as well. On that basis, a tax on royalty would not be a tax on mineral rights and would therefore in any event be outside the competence of the StateRajasthan, Punjab, Gujarat and Orissa High Courts have held that royalty is not a tax See Bherulal v. State of Rajasthan (AIR 1956 Raj 161 -62 : 1955 Cri LJ 1390), Dr. S. S. Sharma v. State of Punjab (AIR 1969 P & H 79, 84 : ILR (1969) 1 Punj 680), Saurashtra Cement and Chemicals Industries Ltd. v. Union of India (AIR 1979 Guj 180 , 184 : (1979) 20 Guj LR 895), L. N. Agarwalla v. State of Orissa (AIR 1983 Ori 210 : (1983) 55 Cut LTview of the provisions of the Act, as noted hereinbefore, this submission cannot be accepted. Mr. Krishnamurthy Iyer also further sought to urge that in Entry 50 of List II, there is no limitation to the taxing power of the State. In view of the principles mentioned therein-before and the clauses provisions of Section 9(2) of the Mines and Minerals (Regulation and Development) Act, 1957, this submission can not be accepted. This field is fully covered by the central legislation.32. In any event, royalty is directly relatable only to the minerals extracted and on the principle that are general provision is excluded by the special one, royalty would be relatable to Entries 23 and 50 of List II, and Entry 49 of List II. But as the fee is covered by the central power under Entry 23 or Entry 50 of List. II, the impugned legislation cannot be upheld. Our attention was drawn to a judgment of the High Court of Madhya Pradesh in Miscellaneous Petition No. 410 of 1983 - Hiralal Rameshwar Prasad v. State of Madhya Pradesh (Miscellaneous Petition No. 410 of 1983, decided on March 28, 1986 (MP HC) (DB) which was delivered on March 28, 1986 by a Division Bench of the High Court J. S. Verma, Acting Chief Justice, as His Lordship then was, held that development cess by Section 9 of the Madhya Pradesh Karadhan Adhiniyam, 1982 is ultra vires. It is not necessary in the view taken by us, and further in view that the said decision is under appeal in this Court, to examine it in detail.33. In the aforesaid view of the matter, we are of the opinion that royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State legislature because Section 9 of the Central Act covers the field and the State legislature is denuded of its competence under Entry 23 of List II. In any event, we are of the opinion that cess on royalty cannot be sustained under Entry 49 of List II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user ofsee good deal of substance in this submission. After all, there was a decision of this Court in H. R. S. Murthy case ((1964) 6 SCR 666 : AIR 1965 SC 177 ) and amounts have been collected on the basis that the said decision was the correct position. We are, therefore, of the opinion that we will be justified in declaring the levy of the said cess to be ultra vires the power of the State legislature prospectively only. | 1 | 8,774 | 5,157 | ### Instruction:
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not invited to the provisions of Mines and Minerals (Development and Regulation) Act, 1957 and Section 9 thereof. Section 9 (3) of the Act in terms states that royalties payable under the Second Schedule of the Act shall not be enhanced more than once during a period of four years. It is, therefore, a clear bar on the State legislature taxing royalty so as to in effect amend Section Schedule of the Central Act. In the premises, it cannot be right to say that tax on royalty can be a tax on land, and even if it is a tax, if it falls within Entry 50 will be ultra vires the State legislative power in view of Section 9(3) of the Central Act. In Hingir-Rampur Coal Co. Ltd. v. State of Orissa ((1961) 2 SCR 537 : AIR 1961 SC 459 ), Wanchoo, J. in his dissenting judgment has stated that a tax on mineral rights being different from a duty of excise pertains only to a tax that is leviable for the grant of the right to extract minerals, and is not a tax on minerals as well. On that basis, a tax on royalty would not be a tax on mineral rights and would therefore in any event be outside the competence of the State legislature. . The Rajasthan, Punjab, Gujarat and Orissa High Courts have held that royalty is not a tax See Bherulal v. State of Rajasthan (AIR 1956 Raj 161 -62 : 1955 Cri LJ 1390), Dr. S. S. Sharma v. State of Punjab (AIR 1969 P & H 79, 84 : ILR (1969) 1 Punj 680), Saurashtra Cement and Chemicals Industries Ltd. v. Union of India (AIR 1979 Guj 180 , 184 : (1979) 20 Guj LR 895), L. N. Agarwalla v. State of Orissa (AIR 1983 Ori 210 : (1983) 55 Cut LT 364). 31. It was contended by Mr. Krishnamurthy Iyer that the State has a right to tax minerals. It was further contended that if tax is levied, it will not be irrational to correlate it to the value of the property and to make some kind of annual value basis of tax without intending to tax the income. In view of the provisions of the Act, as noted hereinbefore, this submission cannot be accepted. Mr. Krishnamurthy Iyer also further sought to urge that in Entry 50 of List II, there is no limitation to the taxing power of the State. In view of the principles mentioned therein-before and the clauses provisions of Section 9(2) of the Mines and Minerals (Regulation and Development) Act, 1957, this submission can not be accepted. This field is fully covered by the central legislation.32. In any event, royalty is directly relatable only to the minerals extracted and on the principle that are general provision is excluded by the special one, royalty would be relatable to Entries 23 and 50 of List II, and Entry 49 of List II. But as the fee is covered by the central power under Entry 23 or Entry 50 of List. II, the impugned legislation cannot be upheld. Our attention was drawn to a judgment of the High Court of Madhya Pradesh in Miscellaneous Petition No. 410 of 1983 - Hiralal Rameshwar Prasad v. State of Madhya Pradesh (Miscellaneous Petition No. 410 of 1983, decided on March 28, 1986 (MP HC) (DB) which was delivered on March 28, 1986 by a Division Bench of the High Court J. S. Verma, Acting Chief Justice, as His Lordship then was, held that development cess by Section 9 of the Madhya Pradesh Karadhan Adhiniyam, 1982 is ultra vires. It is not necessary in the view taken by us, and further in view that the said decision is under appeal in this Court, to examine it in detail.33. In the aforesaid view of the matter, we are of the opinion that royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State legislature because Section 9 of the Central Act covers the field and the State legislature is denuded of its competence under Entry 23 of List II. In any event, we are of the opinion that cess on royalty cannot be sustained under Entry 49 of List II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user of land. 34. Mr. Krishnamurthy Iyer, however, submitted that in any event, the decision in H. R. S. Murthy case ((1964) 6 SCR 666 : AIR 1965 SC 177 ) was the decision of the Constitution Bench of this Court. Cess has been realised on that basis for the organisation of village and town panchayats and comprehensive programme of measures had been framed under the National Extension Service Scheme to which our attention was drawn. Mr. Krishnamurthy Iyer further submitted that the Directive Principle of State Policy embodied in the Constitution enjoined that the State should take steps to organise village panchayats and endow them with power and authority as may be necessary to enable them to function as units of self-government and as the amounts have been realised on that basis, if at all, we should declare the said cess on royalty to be ultra vires prospectively. In other words, the amounts that have been collected by virtue of the said provisions, should not be declared to be illegal retrospectively and the State made liable to refund the same. We see good deal of substance in this submission. After all, there was a decision of this Court in H. R. S. Murthy case ((1964) 6 SCR 666 : AIR 1965 SC 177 ) and amounts have been collected on the basis that the said decision was the correct position. We are, therefore, of the opinion that we will be justified in declaring the levy of the said cess to be ultra vires the power of the State legislature prospectively only.
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494). Mr. Krishnamurthy Iyer, however, to the decision of this Court in H.R. S. Murthy case ((1964) 6 SCR 666 : AIR 1965 SC 177 ). There under terms of a mining lease the lessee worked the mines and won iron in a tract of land in a village in Chittur district and bound himself to a dead rent if he used the leased land for the extraction of iron ore, pay a royalty on iron ore if it were used for extraction of iron and in to pay a surface rent in respect of the surface area occupied or used. In the said decision the legislative competence of Sections 78 and 79 of the Madras District Boards Act was upheld by which land cess was made payable on the basis of royalty. This Court proceeded on the basis that other cess related to land and would therefore be covered by Entry 49 of List II. It was held that land cess paid on royalty has a direct relation to the land and only a remote relation with mining. This, with respect, seems to be not a correct approach. It was further observed that it was not necessary to consider the meaning of the expression tax on mineral right following under Entry 50 of List II inasmuch as according to this Court, Parliament has not made any tax on mineral rights. This is not a correct basis.It seems, therefore, that attention of the court was not invited to the provisions of Mines and Minerals (Development and Regulation) Act, 1957 and Section 9 thereof. Section 9 (3) of the Act in terms states that royalties payable under the Second Schedule of the Act shall not be enhanced more than once during a period of four years. It is, therefore, a clear bar on the State legislature taxing royalty so as to in effect amend Section Schedule of the Central Act. In the premises, it cannot be right to say that tax on royalty can be a tax on land, and even if it is a tax, if it falls within Entry 50 will be ultra vires the State legislative power in view of Section 9(3) of the Central Act. In Hingir-Rampur Coal Co. Ltd. v. State of Orissa ((1961) 2 SCR 537 : AIR 1961 SC 459 ), Wanchoo, J. in his dissenting judgment has stated that a tax on mineral rights being different from a duty of excise pertains only to a tax that is leviable for the grant of the right to extract minerals, and is not a tax on minerals as well. On that basis, a tax on royalty would not be a tax on mineral rights and would therefore in any event be outside the competence of the StateRajasthan, Punjab, Gujarat and Orissa High Courts have held that royalty is not a tax See Bherulal v. State of Rajasthan (AIR 1956 Raj 161 -62 : 1955 Cri LJ 1390), Dr. S. S. Sharma v. State of Punjab (AIR 1969 P & H 79, 84 : ILR (1969) 1 Punj 680), Saurashtra Cement and Chemicals Industries Ltd. v. Union of India (AIR 1979 Guj 180 , 184 : (1979) 20 Guj LR 895), L. N. Agarwalla v. State of Orissa (AIR 1983 Ori 210 : (1983) 55 Cut LTview of the provisions of the Act, as noted hereinbefore, this submission cannot be accepted. Mr. Krishnamurthy Iyer also further sought to urge that in Entry 50 of List II, there is no limitation to the taxing power of the State. In view of the principles mentioned therein-before and the clauses provisions of Section 9(2) of the Mines and Minerals (Regulation and Development) Act, 1957, this submission can not be accepted. This field is fully covered by the central legislation.32. In any event, royalty is directly relatable only to the minerals extracted and on the principle that are general provision is excluded by the special one, royalty would be relatable to Entries 23 and 50 of List II, and Entry 49 of List II. But as the fee is covered by the central power under Entry 23 or Entry 50 of List. II, the impugned legislation cannot be upheld. Our attention was drawn to a judgment of the High Court of Madhya Pradesh in Miscellaneous Petition No. 410 of 1983 - Hiralal Rameshwar Prasad v. State of Madhya Pradesh (Miscellaneous Petition No. 410 of 1983, decided on March 28, 1986 (MP HC) (DB) which was delivered on March 28, 1986 by a Division Bench of the High Court J. S. Verma, Acting Chief Justice, as His Lordship then was, held that development cess by Section 9 of the Madhya Pradesh Karadhan Adhiniyam, 1982 is ultra vires. It is not necessary in the view taken by us, and further in view that the said decision is under appeal in this Court, to examine it in detail.33. In the aforesaid view of the matter, we are of the opinion that royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State legislature because Section 9 of the Central Act covers the field and the State legislature is denuded of its competence under Entry 23 of List II. In any event, we are of the opinion that cess on royalty cannot be sustained under Entry 49 of List II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user ofsee good deal of substance in this submission. After all, there was a decision of this Court in H. R. S. Murthy case ((1964) 6 SCR 666 : AIR 1965 SC 177 ) and amounts have been collected on the basis that the said decision was the correct position. We are, therefore, of the opinion that we will be justified in declaring the levy of the said cess to be ultra vires the power of the State legislature prospectively only.
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Indu Bala Bose & Ors Vs. Manindra Chandra Bose & Anr | it a month earlier. (ix) No body knows what alterations were m ade in the draft. (x) The scribe and one of the attesting witnesses are employees, another witness (P.W.4) is a friend and the other attesting witness (P.W.5) is a relation. (xi) The evidence of the propounder, Manindra, is partly false; he disavows all knowledge of the will. A careful perusal of the above circumstances shows that they are by no means suspicious circumstances and stand self-explained. Circumstances Nos. (ii) and (iv) are really test of memory. It may be remembered that the witnesses were deposing thirteen years after the execution of the will. It will be difficult for any witness after such a long lapse of time to give the dates when the testator went to th e house of his lawyer or when the draft was given by the lawyer to the testator or when the testator sent for the lawyer through Banqshidhar for correction of the draft. With regard to circumstance No. (iii) there is no evidence to show that ther e was any invariable practice that the draft of a will had to be preserved. No question was put in cross- examination to the scribe (P.W. 1) who perhaps might have been able to say what he had done with it. Similar is the position with re gard to the diary of P.W. 3. P.W. 3 who deposed that his diary would show that he had drafted the will was not asked in cross-examination as to whether he at all preserved in 1965 the diary of 1952 or whether he could produce it. With regard to grievances Nos. (vi) and (vii) we do not see any necessity of calling the testators employee Banqshidhar, as witnesses in the case. So far as Sudhangshu Babu was concerned, Manindra was not asked as to why he had not been called as a witness; possibly he had died as P.W. 3 spoke of him as "my late senior". 11. With regard to circumstance No. (ix), it may be said that there was no necessity of knowing what alterations had been made in the draft. With regard to the circumstance that the scribe and the attesting witnesses were either employees, or friend or relation of the propounders group, the answer is simple. No body would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose. The same argument applies to P.W.3 who is said to be a partisan witness for the reason that he was the testators advocate. But there is nothing to show th at he was not telling the truth in his deposition. With regard to the circumstances Nos. (viii) and (x) that Narendra was not telling the whole truth, when he said that he had come to know of the will three or four days after its execution the compl aint may be correct, although it was not impossible that he had not been taken into confidence in the matter of the will in his favour, although P.W. 5 had been. Another possibility is that Manindra deposed so in order to avoid cross-examina tion. In any case this does not appear to be a suspicious circumstance surrounding the execution of the will.With regard to circumstance No. (i), the submission is that the testator, according to the medical evidence, was at the time of the execution of the will suffering from high blood pressure, diabetes, acidosis, kidney trouble and that he had no food for two days before 8.11.1952. The evidence of P.W.2 Naresh C. Das Gupta who is a medical practitioner is that "Ranen Babu was no t taking his meals and usual food", which means, he was taking sick diet with hydro- protien prescribed by him. But P.W. 2 deposes in cross- examination that "the patient was not in coma .... The patient had talks with me on the last day" which was eight days after the execution of the will when the testator "suddenly" died of coronary thrombosis in the lap of his employee, Banqshidhar. There is no evidence that Ranendra did not have the mental capacity to execute the wi ll. Even D.W. 2 Sailendra Bose who visited Ranendra during his illness, and D.W. 1, Dr. Amal Chakravorty who deposed by perusing the prescriptions, did not depose that Ranendra was in coma or had lost his mental faculty. 12. On the contrary the following circumstances lend strong support to the plaintiffs case of genuineness and valid execution of the will. (1) Gopendra, one of the brothers, who has not been given anything under the will had filed a written statement st ating that he "has no objection to the grant of probate inasmuch as the will is executed and attested according to law." (2) The disposition under the will is quite fair and there are no suspicious circumstances in it at all. (3) As there were litigati ons between the two groups of the brothers, the will was the natural outcome to avoid further future litigation. 13. We do not find any suspicious circumstance surrounding the execution of the will. The circumstances pointed out by lear ned counsel are not only not suspicious but normal as pointed out above. The rule, as observed by the Privy Council, is tha:t "where a will is charged with suspicion, the rules enjoin a reasonable septicism, not as obdurate persistence in disbeli ef. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." (See 500 C.W.N. 895) 14. The trial court was wrong in holding that the circumstances in question were suspicious and the High Court was fully justified in setting aside the judgment of the trial court. We are in entire agreement with the judgment of the High Court. | 0[ds]9. As in the instant appeal, the judgment of the High Court is one of reversal of the judgment of the Trial Court, we should also examine the law under which the order of the appellate court can be or should be interfered with, inasmuch as learned counsel has cited the two following decisions before us, and urged that the High Court ought not to have interfered with the judgment of the Trial CourtA careful perusal of the above circumstances shows that they are by no means suspicious circumstances and stand self-explained. Circumstances Nos. (ii) and (iv) are really test of memory. It may be remembered that the witnesses were deposing thirteen years after the execution of the will. It will be difficult for any witness after such a long lapse of time to give the dates when the testator went to th e house of his lawyer or when the draft was given by the lawyer to the testator or when the testator sent for the lawyer through Banqshidhar for correction of the draft. With regard to circumstance No. (iii) there is no evidence to show that ther e was any invariable practice that the draft of a will had to be preserved. No question was put in cross- examination to the scribe (P.W. 1) who perhaps might have been able to say what he had done with it. Similar is the position with re gard to the diary of P.W. 3. P.W. 3 who deposed that his diary would show that he had drafted the will was not asked in cross-examination as to whether he at all preserved in 1965 the diary of 1952 or whether he could produce it. With regard to grievances Nos. (vi) and (vii) we do not see any necessity of calling the testators employee Banqshidhar, as witnesses in the case. So far as Sudhangshu Babu was concerned, Manindra was not asked as to why he had not been called as a witness; possibly he had died as P.W. 3 spoke of him as "my late senior".With regard to circumstance No. (ix), it may be said that there was no necessity of knowing what alterations had been made in the draft. With regard to the circumstance that the scribe and the attesting witnesses were either employees, or friend or relation of the propounders group, the answer is simple. No body would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose. The same argument applies to P.W.3 who is said to be a partisan witness for the reason that he was the testators advocate. But there is nothing to show th at he was not telling the truth in his deposition. With regard to the circumstances Nos. (viii) and (x) that Narendra was not telling the whole truth, when he said that he had come to know of the will three or four days after its execution the compl aint may be correct, although it was not impossible that he had not been taken into confidence in the matter of the will in his favour, although P.W. 5 had been. Another possibility is that Manindra deposed so in order to avoid cross-examina tion. In any case this does not appear to be a suspicious circumstance surrounding the execution of the will.With regard to circumstance No. (i), the submission is that the testator, according to the medical evidence, was at the time of the execution of the will suffering from high blood pressure, diabetes, acidosis, kidney trouble and that he had no food for two days before 812. On the contrary the following circumstances lend strong support to the plaintiffs case of genuineness and valid execution of the will. (1) Gopendra, one of the brothers, who has not been given anything under the will had filed a written statement st ating that he "has no objection to the grant of probate inasmuch as the will is executed and attested according to law." (2) The disposition under the will is quite fair and there are no suspicious circumstances in it at all. (3) As there were litigati ons between the two groups of the brothers, the will was the natural outcome to avoid further future litigation13. We do not find any suspicious circumstance surrounding the execution of the will. The circumstances pointed out by lear ned counsel are not only not suspicious but normal as pointed out above. The rule, as observed by the Privy Council, isthat"where a will is charged with suspicion, the rules enjoin a reasonable septicism, not as obdurate persistence in disbeli ef. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." (See14. The trial court was wrong in holdingthatthe circumstances in question were suspicious and the High Court was fully justified in setting aside the judgment of the trial court. We are in entire agreement with the judgment of the High Court8. Needless to saythatany and every c ircumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. | 0 | 3,011 | 1,010 | ### 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:
it a month earlier. (ix) No body knows what alterations were m ade in the draft. (x) The scribe and one of the attesting witnesses are employees, another witness (P.W.4) is a friend and the other attesting witness (P.W.5) is a relation. (xi) The evidence of the propounder, Manindra, is partly false; he disavows all knowledge of the will. A careful perusal of the above circumstances shows that they are by no means suspicious circumstances and stand self-explained. Circumstances Nos. (ii) and (iv) are really test of memory. It may be remembered that the witnesses were deposing thirteen years after the execution of the will. It will be difficult for any witness after such a long lapse of time to give the dates when the testator went to th e house of his lawyer or when the draft was given by the lawyer to the testator or when the testator sent for the lawyer through Banqshidhar for correction of the draft. With regard to circumstance No. (iii) there is no evidence to show that ther e was any invariable practice that the draft of a will had to be preserved. No question was put in cross- examination to the scribe (P.W. 1) who perhaps might have been able to say what he had done with it. Similar is the position with re gard to the diary of P.W. 3. P.W. 3 who deposed that his diary would show that he had drafted the will was not asked in cross-examination as to whether he at all preserved in 1965 the diary of 1952 or whether he could produce it. With regard to grievances Nos. (vi) and (vii) we do not see any necessity of calling the testators employee Banqshidhar, as witnesses in the case. So far as Sudhangshu Babu was concerned, Manindra was not asked as to why he had not been called as a witness; possibly he had died as P.W. 3 spoke of him as "my late senior". 11. With regard to circumstance No. (ix), it may be said that there was no necessity of knowing what alterations had been made in the draft. With regard to the circumstance that the scribe and the attesting witnesses were either employees, or friend or relation of the propounders group, the answer is simple. No body would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose. The same argument applies to P.W.3 who is said to be a partisan witness for the reason that he was the testators advocate. But there is nothing to show th at he was not telling the truth in his deposition. With regard to the circumstances Nos. (viii) and (x) that Narendra was not telling the whole truth, when he said that he had come to know of the will three or four days after its execution the compl aint may be correct, although it was not impossible that he had not been taken into confidence in the matter of the will in his favour, although P.W. 5 had been. Another possibility is that Manindra deposed so in order to avoid cross-examina tion. In any case this does not appear to be a suspicious circumstance surrounding the execution of the will.With regard to circumstance No. (i), the submission is that the testator, according to the medical evidence, was at the time of the execution of the will suffering from high blood pressure, diabetes, acidosis, kidney trouble and that he had no food for two days before 8.11.1952. The evidence of P.W.2 Naresh C. Das Gupta who is a medical practitioner is that "Ranen Babu was no t taking his meals and usual food", which means, he was taking sick diet with hydro- protien prescribed by him. But P.W. 2 deposes in cross- examination that "the patient was not in coma .... The patient had talks with me on the last day" which was eight days after the execution of the will when the testator "suddenly" died of coronary thrombosis in the lap of his employee, Banqshidhar. There is no evidence that Ranendra did not have the mental capacity to execute the wi ll. Even D.W. 2 Sailendra Bose who visited Ranendra during his illness, and D.W. 1, Dr. Amal Chakravorty who deposed by perusing the prescriptions, did not depose that Ranendra was in coma or had lost his mental faculty. 12. On the contrary the following circumstances lend strong support to the plaintiffs case of genuineness and valid execution of the will. (1) Gopendra, one of the brothers, who has not been given anything under the will had filed a written statement st ating that he "has no objection to the grant of probate inasmuch as the will is executed and attested according to law." (2) The disposition under the will is quite fair and there are no suspicious circumstances in it at all. (3) As there were litigati ons between the two groups of the brothers, the will was the natural outcome to avoid further future litigation. 13. We do not find any suspicious circumstance surrounding the execution of the will. The circumstances pointed out by lear ned counsel are not only not suspicious but normal as pointed out above. The rule, as observed by the Privy Council, is tha:t "where a will is charged with suspicion, the rules enjoin a reasonable septicism, not as obdurate persistence in disbeli ef. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." (See 500 C.W.N. 895) 14. The trial court was wrong in holding that the circumstances in question were suspicious and the High Court was fully justified in setting aside the judgment of the trial court. We are in entire agreement with the judgment of the High Court.
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9. As in the instant appeal, the judgment of the High Court is one of reversal of the judgment of the Trial Court, we should also examine the law under which the order of the appellate court can be or should be interfered with, inasmuch as learned counsel has cited the two following decisions before us, and urged that the High Court ought not to have interfered with the judgment of the Trial CourtA careful perusal of the above circumstances shows that they are by no means suspicious circumstances and stand self-explained. Circumstances Nos. (ii) and (iv) are really test of memory. It may be remembered that the witnesses were deposing thirteen years after the execution of the will. It will be difficult for any witness after such a long lapse of time to give the dates when the testator went to th e house of his lawyer or when the draft was given by the lawyer to the testator or when the testator sent for the lawyer through Banqshidhar for correction of the draft. With regard to circumstance No. (iii) there is no evidence to show that ther e was any invariable practice that the draft of a will had to be preserved. No question was put in cross- examination to the scribe (P.W. 1) who perhaps might have been able to say what he had done with it. Similar is the position with re gard to the diary of P.W. 3. P.W. 3 who deposed that his diary would show that he had drafted the will was not asked in cross-examination as to whether he at all preserved in 1965 the diary of 1952 or whether he could produce it. With regard to grievances Nos. (vi) and (vii) we do not see any necessity of calling the testators employee Banqshidhar, as witnesses in the case. So far as Sudhangshu Babu was concerned, Manindra was not asked as to why he had not been called as a witness; possibly he had died as P.W. 3 spoke of him as "my late senior".With regard to circumstance No. (ix), it may be said that there was no necessity of knowing what alterations had been made in the draft. With regard to the circumstance that the scribe and the attesting witnesses were either employees, or friend or relation of the propounders group, the answer is simple. No body would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose. The same argument applies to P.W.3 who is said to be a partisan witness for the reason that he was the testators advocate. But there is nothing to show th at he was not telling the truth in his deposition. With regard to the circumstances Nos. (viii) and (x) that Narendra was not telling the whole truth, when he said that he had come to know of the will three or four days after its execution the compl aint may be correct, although it was not impossible that he had not been taken into confidence in the matter of the will in his favour, although P.W. 5 had been. Another possibility is that Manindra deposed so in order to avoid cross-examina tion. In any case this does not appear to be a suspicious circumstance surrounding the execution of the will.With regard to circumstance No. (i), the submission is that the testator, according to the medical evidence, was at the time of the execution of the will suffering from high blood pressure, diabetes, acidosis, kidney trouble and that he had no food for two days before 812. On the contrary the following circumstances lend strong support to the plaintiffs case of genuineness and valid execution of the will. (1) Gopendra, one of the brothers, who has not been given anything under the will had filed a written statement st ating that he "has no objection to the grant of probate inasmuch as the will is executed and attested according to law." (2) The disposition under the will is quite fair and there are no suspicious circumstances in it at all. (3) As there were litigati ons between the two groups of the brothers, the will was the natural outcome to avoid further future litigation13. We do not find any suspicious circumstance surrounding the execution of the will. The circumstances pointed out by lear ned counsel are not only not suspicious but normal as pointed out above. The rule, as observed by the Privy Council, isthat"where a will is charged with suspicion, the rules enjoin a reasonable septicism, not as obdurate persistence in disbeli ef. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." (See14. The trial court was wrong in holdingthatthe circumstances in question were suspicious and the High Court was fully justified in setting aside the judgment of the trial court. We are in entire agreement with the judgment of the High Court8. Needless to saythatany and every c ircumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
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Commissioner Of Commercial Taxes, Mysorebangalore Vs. Hindustan Aeronautics Ltd | India and as his prosperity in trust for him the Stores and articles in respect of which advances are made to them under Railway Boards letters. No 52/142/4/M D/- 16th February, 1952 and 53/142/4/M dated 3rd March, 1953 and hereafter to be made to the company under future orders from the Railway Board from time to time.2. The said stores and articles shall be such as are required for the purpose of the pending and future contracts and the advances made and to be made are without prejudice to the provisions of the contract as to rejection and inspection and any advance made against stores and articles rejected or found unsatisfactory on inspection shall be refunded immediately to the President of the Union of India.3. The Company shall be entirely responsible for the safe custody and protection of the said articles and stores against all risks till they are duly delivered to the President of the Union of India or as he may direct and shall indemnify the President of the Union of India against any loss, damage or deterioration whatsoever in respect of the said stores and articles while in our possession. The said articles and material shall at all times be open to inspection of any officer authorised by Government.4. Should any loss or damage occur or a refund become due, the President of the Union of India shall be entitled to recover from the Company compensation for such loss or damage or the amount to be refunded without prejudice to any other remedies available to him by deduction from any sum due or any sum which at any time hereafter may become to the Company under this or any other contract.9. We have set out the terms of the Indemnity Board in great detail because the learned counsel for the appellant has strongly relied on the terms thereof.The text of the invoice sent by the assessee for the purpose of receiving 90% advance may be seen from the covering letter dated October 15, 1956 relating to one of the invoices. The letter reads:On account payment of 90% on material procured for rail coaches-407 and 408 model VI order.Further to our letter No. AI/Inv/1169 dated 8-10-56 enclosing our invoice for Rs. 42,892-15-0 we enclose herewith our invoice No. 31009 dated 15-10-1956 in duplicate for Rs. 2,34,517-4-0 being 90% of materials procured in October 1956. Kindly arrange payment of the invoice along with the invoice already sent. Please instruct your resident representative to check the stock of materials as per lists attached to our invoices and send them to the Deputy Financial Adviser and Chief Accounts Officer, Integral Coach Factory, Perembur so that he may send his representative to check the value of the materials.10. On these facts we have to decide whether there has been any sale of the coaches within the meaning of the Central Sales Tax Act. We were referred to a number of cases - (1965) 16 STC 518 (S)C Mckenzies v. State of Maharashtra. (1965) 2 S. C. R. 782 = (AIR 1965 SC 1655 ) - Patnaik and Co. v. State of Orissa, on the subject of this Court and the High Courts, but it seems to us that ultimately the answer must depend upon the terms of the contract. The answer to the question whether it is a works contract of it is a contract of sale depends upon the construction of the terms of the contract in the light of the surrounding circumstances. In this case the salient features of the contract are as follows:(1) The Railway books capacity of the assessee for the purpose of construction of railway coaches.(2) Advance on account is made to the extent of 90% of the value of the material on the production of a certificate by the inspecting authority.(3) The material used for the construction of coaches before its use is the property of the Railway. This is quite clear from para 1 of the Indemnity bond set out above. No other meaning can be given to the words in the bond to the effect that the Hindustan Aircraft Ltd. hereby undertake to hold at their works at Bangalore for and on behalf of the President of the Union of India and as his property in trust for him the Stores and articles in respect of which advances are made to them.It seems to us clear that the property in the materials which are used for the construction of the coaches becomes the property of the President before it is used.(4) It seems that there is no possibility of any other material being used for the construction as is borne out from the report written by the Commercial Tax Officer.(5) As far as the coaches of models 407 and 408 are concerned, the wheelsets and underframes are supplied free of cost.(6) In the order words used are manufacture and supply, of the following coaches.(7) The material and wage escalator and adjustments which are Mentioned in the contract are neutral factors.11. On these facts it seems to us that it is a pure works contract. We are unable to agree that when all the material used in the construction of a coach belongs to the Railways there can be any sale of the coach itself. The difference between the price of a coach and the cost of material can only be the cost of services rendered by the assessee.If it is necessary to refer to a case which is close to the facts of this case, then this case is more in line with the decision of this Court in State of Gujarat v. Kailash Engineering Co., 19 STC 13 = (AIR 1967 SC 547 ) than any other case.The only difference as far as coach model No. 411 is concerned is that in that case the wheelsets and underframes are not supplied free of cost but otherwise there is no essential difference in the terms. This does not make any difference to the result.12. | 0[ds]On these facts it seems to us that it is a pure works contract. We are unable to agree that when all the material used in the construction of a coach belongs to the Railways there can be any sale of the coach itself. The difference between the price of a coach and the cost of material can only be the cost of services rendered by the assessee.The only difference as far as coach model No. 411 is concerned is that in that case the wheelsets and underframes are not supplied free of cost but otherwise there is no essential difference in the terms. This does not make any difference to the result. | 0 | 2,974 | 122 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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India and as his prosperity in trust for him the Stores and articles in respect of which advances are made to them under Railway Boards letters. No 52/142/4/M D/- 16th February, 1952 and 53/142/4/M dated 3rd March, 1953 and hereafter to be made to the company under future orders from the Railway Board from time to time.2. The said stores and articles shall be such as are required for the purpose of the pending and future contracts and the advances made and to be made are without prejudice to the provisions of the contract as to rejection and inspection and any advance made against stores and articles rejected or found unsatisfactory on inspection shall be refunded immediately to the President of the Union of India.3. The Company shall be entirely responsible for the safe custody and protection of the said articles and stores against all risks till they are duly delivered to the President of the Union of India or as he may direct and shall indemnify the President of the Union of India against any loss, damage or deterioration whatsoever in respect of the said stores and articles while in our possession. The said articles and material shall at all times be open to inspection of any officer authorised by Government.4. Should any loss or damage occur or a refund become due, the President of the Union of India shall be entitled to recover from the Company compensation for such loss or damage or the amount to be refunded without prejudice to any other remedies available to him by deduction from any sum due or any sum which at any time hereafter may become to the Company under this or any other contract.9. We have set out the terms of the Indemnity Board in great detail because the learned counsel for the appellant has strongly relied on the terms thereof.The text of the invoice sent by the assessee for the purpose of receiving 90% advance may be seen from the covering letter dated October 15, 1956 relating to one of the invoices. The letter reads:On account payment of 90% on material procured for rail coaches-407 and 408 model VI order.Further to our letter No. AI/Inv/1169 dated 8-10-56 enclosing our invoice for Rs. 42,892-15-0 we enclose herewith our invoice No. 31009 dated 15-10-1956 in duplicate for Rs. 2,34,517-4-0 being 90% of materials procured in October 1956. Kindly arrange payment of the invoice along with the invoice already sent. Please instruct your resident representative to check the stock of materials as per lists attached to our invoices and send them to the Deputy Financial Adviser and Chief Accounts Officer, Integral Coach Factory, Perembur so that he may send his representative to check the value of the materials.10. On these facts we have to decide whether there has been any sale of the coaches within the meaning of the Central Sales Tax Act. We were referred to a number of cases - (1965) 16 STC 518 (S)C Mckenzies v. State of Maharashtra. (1965) 2 S. C. R. 782 = (AIR 1965 SC 1655 ) - Patnaik and Co. v. State of Orissa, on the subject of this Court and the High Courts, but it seems to us that ultimately the answer must depend upon the terms of the contract. The answer to the question whether it is a works contract of it is a contract of sale depends upon the construction of the terms of the contract in the light of the surrounding circumstances. In this case the salient features of the contract are as follows:(1) The Railway books capacity of the assessee for the purpose of construction of railway coaches.(2) Advance on account is made to the extent of 90% of the value of the material on the production of a certificate by the inspecting authority.(3) The material used for the construction of coaches before its use is the property of the Railway. This is quite clear from para 1 of the Indemnity bond set out above. No other meaning can be given to the words in the bond to the effect that the Hindustan Aircraft Ltd. hereby undertake to hold at their works at Bangalore for and on behalf of the President of the Union of India and as his property in trust for him the Stores and articles in respect of which advances are made to them.It seems to us clear that the property in the materials which are used for the construction of the coaches becomes the property of the President before it is used.(4) It seems that there is no possibility of any other material being used for the construction as is borne out from the report written by the Commercial Tax Officer.(5) As far as the coaches of models 407 and 408 are concerned, the wheelsets and underframes are supplied free of cost.(6) In the order words used are manufacture and supply, of the following coaches.(7) The material and wage escalator and adjustments which are Mentioned in the contract are neutral factors.11. On these facts it seems to us that it is a pure works contract. We are unable to agree that when all the material used in the construction of a coach belongs to the Railways there can be any sale of the coach itself. The difference between the price of a coach and the cost of material can only be the cost of services rendered by the assessee.If it is necessary to refer to a case which is close to the facts of this case, then this case is more in line with the decision of this Court in State of Gujarat v. Kailash Engineering Co., 19 STC 13 = (AIR 1967 SC 547 ) than any other case.The only difference as far as coach model No. 411 is concerned is that in that case the wheelsets and underframes are not supplied free of cost but otherwise there is no essential difference in the terms. This does not make any difference to the result.12.
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On these facts it seems to us that it is a pure works contract. We are unable to agree that when all the material used in the construction of a coach belongs to the Railways there can be any sale of the coach itself. The difference between the price of a coach and the cost of material can only be the cost of services rendered by the assessee.The only difference as far as coach model No. 411 is concerned is that in that case the wheelsets and underframes are not supplied free of cost but otherwise there is no essential difference in the terms. This does not make any difference to the result.
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Moran Mar Basselios Catholicos Vs. Thukalan Paulo Avira & Ors | Judge has also definitely found that persons ordained by the Patriarch will have to be accepted by the whole Malankara Church as represented by the Malankara Association and that the Metropolitans on the plaintiffs side had not been so accepted and that, therefore, they could not possibly become Vice Presidents and their non-joinder in the notice (Ex. 60) could not vitiate it. The High Court was, therefore, quite correct in its finding that Exs. 60 and 61 were issued by proper persons. But on the question as to whether the notices had been issued and served on all the churches, the High Court has observed that there was no. reliable and convincing evidence in proof of that fact. The High Court has referred to the evidence of D.Ws. 23 and 22 and has concluded that although the notices Exs. 60 and 61 were issued by competent persons the evidence on record fell short of the standard of proof necessary for establishing the fact of service of the notices on all the churches and particularly on those on the plaintiffs side. Ordinarily we do not go behind the findings of fact by the final court of facts but in the present case it appears to us, with respect, that the learned judges of the High Court have overlooked important materials on the record which, if taken into account, will certainly go to show that all the churches had ample notice of the meeting. It is clear from the judgment that in arriving at their conclusion the learned High Court Judges completely overlooked the evidence of D.W. 29 who was the Secretary of Mar Geevarghese Dionysius and who was personally concerned with the issue of the notices. We have been taken through the evidence of the defendants witness who said that they did not think notices had been sent to the Metropolitans on the plaintiffs side. The High Court, however, completely overlooked the evidence of the plaintiffs witness Kuran Mathew (P.W. 2) who said that for meetings of the church representatives no. notices are sent to the Metropolitans but are sent only to the churches. Further, as already observed, the Metropolitans on the plaintiffs side were never accepted by the Malankara Association and, therefore, no. notices need have been sent to them. It is true that notices convening the Ex. 98-B meeting in l106 were served on the Metropolitans on the plaintiffs side, but that was a special occasion for bringing about a settlement. It is somewhat significant that we do not find in the record placed before us any statement of any witness examined by the plaintiffs that he (if he was a Metropolitan) or his church had not in fact been served. Besides, the notices by advertisement in newspapers (Exs. 62 and 63) will also be sufficient notice to the Metropolitans and churches on both sides. Learned counsel for the appellant has placed before us portions of evidence of some of the witnesses examined by the plaintiffs. Those witnesses say that even if they had been served they would not have taken any note of them and indeed would not have got them read in their church. As already observed this attitude of the partisans of the plaintiffs does not absolve the defendants from the duty of serving notices on the churches on the plaintiffs side but it undoubtedly shows that the defendants knowing of this attitude would have no. incentive to suppress the notices from them. Further the learned Judges do not also appear to have adverted to the evidence of D.W. 25 who was a partisan of the plaintiffs as admitted by P. W. 5 and who did not complain of any want of notice to his church. Further, the learned Judges have not given any reason why the notices by advertisements in the newspapers could not be accepted as sufficient notice in the absence, as they found, of any specific rules as to the mode of service. Apart from Exs. 59, 60 and 61 the advertisements in the newspapers evidenced by Exs. 62 and 63 appear to us to be sufficient notice to all churches. There is no. evidence at all that any particular church did not in fact know that a meeting was going to be held at the time and place hereinbefore mentioned. On the materials placed before us we feel satisfied that the notices were served on all the churches including those which sided with the plaintiffs and that there was no. adequate ground for rejecting the finding of fact arrived at by the trial court on this question after a fair and full consideration of the evidence on record. The conclusion of the High Court appears to us, with respect, to be based partly on a mis-reading of evidence and partly on the non-advertence to important material evidence bearing on the question and to the probabilities of the case. 43. Learned counsel for the respondent has tried to find fault with the notices in minor details. For instance, it has been argued that in the notices other than Ex. 59 no. agenda was mentioned. Apart from the fact that no. such objection was taken in the plaint, it is clear that those notices by a clear reference to Ex. 59, specially because they had all been sent together, did incorporate the agenda set out in full in Ex. 59. In our opinion the M.D. Seminary meeting was properly held and the first defendant, who is now the sole appellant before us, was validly appointed as the Malankara Metropolitan and as such became the ex-officio trustee of the church properties. There is no. question that the defendants 2 and 3 who are now dead had been previously elected by a meeting of the Malankara Association duly convened and held and were properly constituted trustees. In this view of the matter it must follow that the plaintiffs cannot, even in their individual or representative capacity, question the title of the defendants as validly appointed trustees. | 1[ds]It is perfectly clear that in a suit of this description if the plaintiffs are to succeed they must do so on the strength of their own title. The plaintiffs in this suit base their title to trusteeship on their election at a meeting of the churches alleged to have been held on August 22, 1935 at Karingasserai when the original plaintiff is said to have been elected the Malankara Metropolitan and the plaintiffs 2 and 3 as Kathanar and lay trustees. That meeting was admittedly held without any notice to the members of the Catholicos party, for they were, quite erroneously as we shall presently indicate, regarded as having gone out of the Church. In justification of this stand reference is made, rather half-heartedly, to the Kalpana (Ex. Z) which commanded the faithful not to have anything to do with the heretics. On our finding on that question to be hereafter recorded, namely, that the defendants and their partisans had not become ipso facto heretics in the eye of the civil court or aliens or had not gone out of the Church, it must necessarily follow, apart from the question of the competency of the convener of the meeting, that the meeting had not been held on due notice to all churches interested and was consequently not a valid meeting and that, therefore, the election of the plaintiffs was not valid and their suit, in so far as it is in the nature of a suit for ejectment, must fail for want of their title as trusteesThe question of burden of proof at the end of the case, when both parties have adduced their evidence is not of very great importance and the court has to come to a decision on a consideration of all materials. Further although in the cause title or in the body of the plaint the plaintiffs do not claim to have instituted the suit for themselves and on behalf of all other members of community proceedings were taken under the provisions of the Travancore Code of Civil Procedure corresponding to O. I, R. 8 of our Code of Civil. Procedure. We, therefore, proceed to determine the questions arising in this appeal on the basis that the plaintiffs were entitled to maintain this suit as members of the Malankara Jacobite Syrian Christian community not only on behalf of themselves but on behalf of all the members of the said communityAs will appear from paragraph 3 of the judgment (Ex. 255) pronounced by the trial court on September 15, 1919 in the interpleader suit (O. S. No. 94 of 1088) that suit was, with the permission of the court, converted into a representative action on behalf of the Jacobite Syrian Christian population of Malabar. Therefore the decision in that interpleader suit (O. S. No. 94 of 1088) must be binding on all members of the Malankara Jacobite Syrian Christian community. In paragraphs 6, 9 and 32 of the plaint in the present suit the plaintiffs who represent the interests of defendants 4 to 6 in the interpleader suit (O. S. No. 94 of 1088) themselves rely on the decision in that interpleader suit as operating as res judicata as between the parties to the present suit on questions referred to in those paragraphs. Indeed in paragraph 55 of the grounds of appeal filed by the plaintiffs in the present suit the contention is put forward that the trial court should have held, inter alia, that Ex. 256 operated as res judicata in respect of the points decided in that case. It is also to be remembered that the first plaintiff in the present suit was defendant 42 in that interpleader suit and the second defendant in the present suit was the second defendant in that interpleader suit. In these circumstances there does not appear to us any difficulty as to parties in applying the principle of res judicata to the matters in issue in this suit, if the other conditions for its application are satisfiedThe properties claimed to belong to the Malankara Jacobite Syrian Church which have to be administered by three trustees, namely, the Malankara Metropolitan, one Kathanar (clergy) and a lay man to be elected by the Church, are referred to in paragraphs 1 and 2 of the plaint. The salient facts summarised above as constituting the background of the present disputes are then set forth in paragraphs 3 to 12. Reference is thereafter made in paragraphs 13 and 14 to the meeting said to be a meeting of the Malankara Association held in Karingasserai in August, 1935. It is alleged that at that meeting the first plaintiff was elected as the Malankara Metropolitan and the second and third plaintiffs were elected respectively as the Kathanar (priestly) trustee and the lay trustee and the second and the third defendants were removed from trusteeship. In paragraph 15 is formulated the plaintiffs claim to be in possession of the church properties. Paragraphs 16 to 21 repudiate the claims of the first defendant allegedly founded on his election as the Malankara Metropolitan and trustee at a meeting of the Malankara Association said to have been held in December 1934. It is alleged that the last mentioned meeting was not convened by any competent person nor was due notice of it given to all the churches. In paragraph 22 it is stated that for reasons stated there and more particularly specified in paragraphs 26, the first defendant was disqualified and declared unfit to be Malankara Metropolitan. The reasons set forth are five in number and each of them is characterised as amounting to a denial or repudiation of the authority of His Holiness the Patriarch of Antioch. The contentions formulated in paragraphs 23 and 25 are that the acts and pretensions referred to therein constitute heresy and that the first defendant as well as the second and third defendants who are supporting and co-operating with the first defendant, had become ipso facto heretics and aliens to the Malankara Jacobite Syrian Church31. It is said that there was no. issue as to whether the acts imputed to Mar Geevarghese Dionysius had been done by him or not or whether the ordination of three Metropolitans by Abdul Messiah was valid or not and that the charge against Mar Geevarghese Dionysius and his two co-trustees (defendants 1 to 3) was only that of heresy founded on certain acts. It is true that the same acts are referred to in paragraphs 19 to 20 of the present plaintiff, but, it is contended, there was no. charge of their having gone out of the Church by their having set up a new church as evidenced by those very acts. We do not think there is any force in this contention. In paragraph 32 of his judgment Chatfield C. J., held that no. enquiry was held into the conduct of Mar Geevarghese Dionysius who had never been placed on his defence or apprised of the charges against him or given any opportunity of defending himself and that as such his ex-communication was invalid and he continued to be a Malankara Metropolitan and as such one of the trustees of the church properties. To the same effect were the findings of Joseph Thaliath J. and of Parameswaran Piliai J. Learned Advocate for the then appellants, (defendants 4 to 6) then fell back on the case that quite irrespective of the validity of the excommunication of Mar Geevarghese Dionysius he and his co-trustees could not be permitted to act as trustees as they had rendered themselves aliens to the faith by reason, amongst others, of their repudiating the lawful Patriarch Abdulla II and accepting the deposed Patriarch Abdul Messiah and by upholding the Catholicate with powers to the Catholicos as hereinbefore mentioned. Reliance was placed on the decision of the House of Lords in Free Church of Scotland v. Overtoun, 1904 AC 515 (C), in support of the contention that Mar Geevarghese Dionysius and his adherents had set up a new Church effectively free from the control of the Patriarch. It is clear, therefore, that as a consequence of the finding on the breach of the rules of natural justice, it became incumbent on the Full Bench to deal with the alternative case founded on the decision in the Free Church of Scotland case (C) (supra)32. In paragraph 34 of the judgment Chatfield C. J., sums up the contentions set out by the defendants 4 to 6 in their written statement. He points out that it was said, amongst others, that Mar Geevarghese Dionysius and his co-trustees (defendants 1 to 3) had "rendered themselves aliens to the faith." The word, "alien" is significant, for it connotes the idea of a person going outside the faith. The matter does not, however, hang on this slender thread alone. After referring to the various facts, which had taken place soon after his excommunication a and the acts and conduct of Mar Geevarghese Dionysius. e, g., the repudiation of the lawful Patriach and the acceptance of a Patriach who had been deposed and by getting the deposed Patriarch to come to Malabar to do various acts as Patriarch of Antioch e. g., to ordain certain persons as Metropolitans, to set up a Catholicate by ordaining one Mar Ivanios as Catholicos with power to ordain Metropolitans and consecrate Morone, the learned Chief Justice stated that the contentions advanced for defendants 4 to 6 were that the defendant Mar Geevarghese Dionysius and his partisans had all along desired a separation from the See of Antioch and had succeed in their attempt and that "a new church had been created". Towards the end of that paragraph the learned Chief Justice again refers to the contention advanced on behalf of defendants 4 to 6 that "by reason of the actions of the first defendant mentioned in the first part of those paragraphs the first defendant and his followers seceded from the Jacobite Syrian Church in the year 1087 and set up a different Church . . . . . . . . . . . . . . . . . . " The word "seceded in, the context in which it is used, leaves no. room for doubt that the charge of having gone out of the Church by setting up a new Church which accepted the Catholicate with the powers to the Catholicos as herein before mentioned was canvassed and actually decided in the final judgment on reviewIt must, therefore, be held that the contentions put forward in paragraphs 19 to 26 of the plaint in the present suit on which issues Nos. 14, 15, 16 and 17 have been raised were directly and substantially in issue in the interpleader suit (O. S. 94 of 1088) and had been decided by the Travancore High Court on review in favour of Mar Geevarghese Dionysius and his two co-trustee (defendants 1 to 3) and against defendants 4 to 6. In short the question whether Mar Geevarghese Dionysius and his two co-trustees (defendants 1 to 3) had become heretics or aliens or had gone out of the Church and, therefore, were not qualified for acting as trustees was in issue in the interpleader suit (O, S. No. 94 of 1088) and it was absolutely necessary to decide such issue. That judgment decided that neither (a) the repudiation of Abdulla II, nor (b) acceptance of Abdul Messiah who had ceased to be a Patriarch, nor (c) acceptance of the Catholicate with powers as hereinbefore mentioned, nor (d) the reduction of the power of the Patriarch to a vanishing point, ipso facto constituted a heresy or amounted to voluntary separation by setting up a new Church and that being the position those contentions cannot be re-agitated in the present suit34. Re. (I) : In support of the first charge learned counsel has drawn our attention to paragraphs 18, 22 and 26 of the plaint, paragraphs 29 and 38 of the written statement, paragraphs 18 and 27 of the replication and to issues Nos. 6, 14, 15 and 16. We do not think the pleadings and the issues are capable of being construed in the way learned counsel would have us do. The supremacy of the Patriarch has indeed been alleged to have been taken away, but that is not a general averment founded on Ex. A. M. - indeed there is no. specific mention of Ex. A. M. in paragraph 26 of the plaint - but it is based on certain specific matters which appear to be incorporated as rules of the new constitution (Ex. A. M.). Therefore, what are pleaded as disqualifying the defendants from being trustees are those specific matters and not the general fact of adoption of the constitution. There is no. charge in the plaint that for the incorporation in the constitution (Ex. A. M.) of any matter other than those specifically pleaded in the plaint the defendants have incurred a disqualification. The plaintiffs came to court charging the defendants as heretics or as having gone out of the church for having adopted a constitution (Ex. A. M.) which contains the several specific matters pleaded in the plaint and repeated in the replication and made the subject-matter of specific issues. Those self-same matters were relied on as entailing disqualification in the earlier suit. The plaintiffs themselves contend that some of these matters are res judicata against the defendants in this suit by reason of the conditions subject to which their application for review was admitted. On the pleadings as they stand and on the issues as they have been framed, it is now impossible to permit the plaintiff-respondent to go outside the pleadings and set up a new case that the supremacy of the Patriarch has been taken away by the mere fact of the adoption of the new constitution (Ex. A. M.) or by any particular clause there of other than those relating to matters specifically referred to in the pleadings. The issues cannot be permitted to be stretched to cover matters which are not, on a reasonable construction, within the pleadings on which they were founded35. Re. (ii) and (ii a) : Same remarks apply to these two grounds formulated above. There is no. averment anywhere in the pleadings that by accepting the Hudaya canon compiled by Bar Hebreus (Ex. 26 - Ex. A in O.S. No. 94 of 1088) as the correct canon governing the church, the defendants have gone out of the Church. Learned counsel draws our attention first to issue No. 13 and then to issue No. 16 and contends that the loss of status as members of the Church by acceptance of the wrong canon is within the scope of those two issues and that the parties to this suit went to trial with that understanding. We do not consider this argument to be well founded at all. A reference to the pleadings will indicate how and why the Hoodaya canon came to be pleaded and discussed in this case. The plaintiffs impute certain acts and conduct to the defendants and contend that by reason thereof the defendants have become heretics or aliens or have gone out of the Church. These imputations form the subject-matter of issues 14 and 15 and the conclusions to be drawn from the findings on those issues are the subject-matter of issues Nos.16 and 17. The defendants, on the other hand, impute certain acts and conduct to the plaintiffs as a result of which, they contend, the plaintiffs have separated from the Church and constituted a new Church. Issues 19 and 20 are directed to this counter charge. In order to decide these charges and counter charges it is absolutely necessary to determine which is the correct book of canons, for the plaintiffs founded their charges on Ex. B. P. - Ex. 18 in O. S. No. 94 of 1088 and the defendants took their stand on Ex. 26 - Ex. A in O. S. No. 94 of 1088. Issue No. 13 was directed to determine that question. Issue No. 16 is concerned with the conclusions to be drawn from the findings on issues Nos. 14 and 15. The plaintiffs cannot be permitted to use issue No. 16 as a general issue not limited to the subject-matter of issues 14 and 15, for that will be stretching it far beyond its legitimate purpose36. Re. (ii b) : This ground raises the question of the Patriarchs right to Ressissa. Ressissa is a voluntary and not a compulsory contribution made by the parishioners. Ex. F. O., which records the proceedings of the Mulunthuruthu Synod held on June 27, 1876, refers to a resolution providing, inter alia, that the committee, that is to say, the Committee of the Malankara Association, will be responsible to collect and send the Ressissa due to His Holiness the Patriarch. This may suggest that some Ressissa was due to the Patriarch. But in paragraph 218 of Ex. DY which is the judgment pronounced by the Travancore Royal Court of Final Appeal on July 12, 1889, it is stated that no. satisfactory evidence had been adduced before the court as to the payment of Ressissa to the Patriarch by the committee in Malankara that the evidence on record was very meagre and inconclusive and that it was open to doubt whether it was payable to the Metropolitans in this country or to the Patriarch in a foreign country. Ex. 86, which records the proceedings of the meeting of the Malankara Association held on September 7, 1911, refers to a resolution forbidding maintaining any connection with Patriarch Abdulla II and presumably in consequence of this resolution the payment of the Ressissa to the Patriarch was stopped. The interpleader suit (O. S. No. 94 of 1088) was filed in 1913. If non-payment of Ressissa could be made a ground of attack, it should have been taken in that suit and that not having been, done, it cannot now be put forward according to the principles of constructive res judicata. Besides, the provisions of Paragraph 115 of the impugned constitution (Ex. A. M.) require every Vicar in every parish church to collect only two chukrums from every male member who has completed 21 years of age and to send it to the Catholicos. This does not forbid the payment of Ressissa to the Patriarch, if any be due to him and if any parishioner is inclined to pay anything to the Patriarch who is declared in Cl. (1) of this very constitution to be the supreme head of the Orthodox Syrian Church. In any case, according to the canons relied upon by each of the parties, namely, Ex. B. P. - Ex, 18 of O. S. No. 94 of 1088 produced by the plaintiffs or Ex. 26 - Ex. A in O. S. No. 94 of 1088 insisted upon by the defendants, the non-payment of Ressissa does not entail heresy. Even if the question involved in ground (ii b) is not covered by the previous decision in the interpleader suit (O. S. No. 94 of 1088) the question has, on the foregoing grounds, to be decided against the plaintiff-respondent37. Re. (iii) : This is really not a charge but a statement of the conclusion which the plaintiff-respondent desires to be drawn from the other charges formulated above. Accordingly the point has not been pressed before us and nothing further need be said about it38. Re. (iv) : An attempt is made by learned counsel for the respondents to make out that what was referred to in the interpleader suit (O. S. No. 94 of 1088) was the ordination of a Catholicos whereas in the present suit reference is made to the establishment of a Catholicate and further that in any case the Catholicate of the East referred to in the plaint in the present suit is an institution quite different from the Catholicate which was the subject-matter of discussion in the interpleader suit (O. S. No. 94 of 1088.). We do not think there is any substance whatever in this contention. A reference to paragraphs 30 and 31 of the written statement clearly indicates that the institution of Catholicate, which is relied upon by the defendants, is no. other than the Catholicate established in Malabar in 1088 by Patriarch Abdul Messiah. This position is accepted by the plaintiffs themselves in their grounds of appeal Nos. 13, 15, 17, 18 and 27 to the High Court of Travancore from the decision of the District Judge of Kottayam in this case. Issues Nos. 14 and 15 as well as the judgment of the District Judge in this case also indicate that the subject-matter of this part of the controversy centred round the Catholicate which had been established by Abdul Messiah in the year 1088. Before the argument advanced before us there never was a case that the impugned constitution (Ex. A. M.) had established a Catholicate of the East. The purported distinction sought to be drawn between the ordination of Catholicos and the establishment of a Catholicate and a Catholicate established by Abdul Messiah in 1088 and the Catholicate of the East created by the impugned constitution (Ex. A. M.) and which is sought to be founded upon as a new cause of action in the present suit, appears to us to be a purely fanciful afterthought and is totally untenable39. For reasons stated above we have come to the conclusion and we hold that the case with which the plaintiffs have come to court in the present suit is that the defendants had become heretics or aliens or had gone out of the Church by establishing a new church because of the specific acts and conduct imputed to the defendants in the present suit and that the charges founded on those specific acts and conduct are concluded by the final judgment (Ex. 256) of the High Court of Travancore in the interpleader suit (O. S. No. 94 of 1088) which operates as res judicata. The charge founded on the fact of non-payment of Ressissa, if it is not concluded as constructive res judicata by the previous judgment must, on merits, and for reasons already stated, be found against the plaintiff-respondent. We are definitely of the opinion that the charges now sought to be relied upon as a fresh cause of action are not covered by the pleadings or the issues on which the parties went to trial, that some of them are pure afterthoughts and should not now be permitted to be raised and that at any rate most of them could and should have been put forward in the earlier suit (O. S. No. 94 of 1088) and that not having been done the same are barred by res judicata or principles analogous thereto. We accordingly hold, in agreement with the trial court, that it is no. longer open to the plaintiff-respondent to re-agitate the question that the defendant appellant had ipso facto become heretic or alien or had gone out of the church and has in consequence lost his status as a member of the Church or his office as a trustee40. In the view we have taken on the question of res judicata it is not necessary for us to discuss the further question whether this suit is founded on the same cause of action as that on which O. S. No. 2 of 11O4 was founded or whether by allowing that suit to be eventually dismissed for default the plaintiffs can under the relevant provisions of the Travancore Code of Civil Procedure corresponding to O. 9, R. 9 of our Code of Civil Procedure maintain the present suit41. The next line of attack adopted by learned counsel for the respondents is that the appellant had not been validly elected as trustee by the Malankara Association. This objection affects only the appellant who was the first defendant in the suit, but does not affect the other two defendants (since deceased) who had been elected in 1931 at a meeting whose validity is not questioned. The first plaintiff claims to have been elected as the Malankara Metropolitan at a meeting of the Malankara Association held on December 26, 1934 at the M. D. Seminary. The M. D. Seminary meeting was convened by notices issued individually to all the Jacobite Syrian Christian Churches in Malabar. Three notices (Exs. 59, 60 and 61) are alleged to have been sent under the same cover and at the same time. Exhibit 59 purports to be a notice issued by the defendant Basselios Catholicos. It is addressed to Vicars, Kykers and Parishioners. The meeting was fixed for Wednesday the 11th Dhanu, 11O1 (December 26, 1934). The first item of the agenda was to elect one as Malankara Metropolitan. Exhibit 60 is a notice emanating from three Vice-Presidents of the Malankara Jacobite Syrian Association named therein and addressed to the Vicars, Kykers and Parishioners. It referred to the Kalpana (meaning the notice) sent by the Catholicos (Ex. 59) and intimated that a meeting of the Malankara Jacobite Syrian Association would be held in the M. D. Seminary on the appointed day and asking them to elect a priest and a lay man from the Church as their representatives. Exhibit 61 is a notice by the Managing Committee of the Association addressed to each Church. This also refers to the notice (Ex. 59) issued by the Catholicos and fixes the meeting at the same time and place. Besides these individual notices, advertisements were issued in two leading daily newspapers, copies of which havve been marked Exs. 62 and 63. All that has been said in paragraph 18 of the plaint is that no. meeting was held and that even if there was a meeting the same had not been held legally or according to the usages or convened by a competent person or after notice to all the churches according to custom. On a plain reading of that paragraph there can be no. getting away from the fact that the only objection taken is that the meeting had not been convened by a competent person and that notice had not been given to all the churches. No. other specific objection is taken to the validity of the notice. Learned counsel for the respondent now seeks to rely on the sentence in that paragraph which avers that the proceedings had in that meeting were illegal and void. That averment clearly is a conclusion founded on the specific objections taken previously and cannot possibly be taken as a separate and independent ground of objection expressed in so vague a language as to embrace all objections that the ingenuity of human mind may now conceive & put forward. Indeed issue 6 (a) which is the only issue relating to the election of the first defendant at this meeting quite clearly negatives such an omnibus meaning now sought to be read into paragraph 18 of the plaint42. The District Judge found, for reasons most of which appear to us to be cogent and well-founded, that all the churches had been duly served and that the meeting was properly convened and held. Paragraph 146 of his judgment deals with the question whether the Association meeting was convened by a competent authority. In paragraph 147 he discusses the question whether invitations were sent to all churches. He held that all the churches had been duly served. The reasons adopted by the District Judge may be summarised thus : (i) A large majority of churches being in favour of the defendants, there could be no. incentive on the part of the defendants to suppress the notices; (ii) The evidence of the plaintiffs witnesses clearly indicates that the partisans of the Patriarch would not have attended the meeting even if notices had been received by them and indeed, according to them, notices from heretics would not be read in their churchis at all; (iii) In point of fact two of the churches siding with the plaintiffs had returned the notices which were marked as Exs. 150 and 151, and lastly (iv) that, apart from the individual notices to the churches, there were advertisements issued in two leading Malankara daily newspapers which have been marked Exs. 62 and 63. Although the fact that the churches siding with the plaintiffs would not have attended the meeting does not appear to us to be sufficient reason for not giving notice to them, it nevertheless has a bearing on the question of the probability or otherwise of the suppression of notices from the churches siding with the plaintiffs. The public advertisements in newspapers also negative the alleged attempt at suppression of the notice. Further, as the Mulunthuruthu resolutions embodied in Ex. F.O., which records the proceedings of the meeting at which the Malankara Association was constituted did not provide for any particular mode of service for meetings, it was enough that the ordinary rules adopted by voluntary associations and clubs had been followed, namely, that in the absence of any specific rules, the mode of service determined by the Managing Committee should prevail. The Kerala High Court has, however, in the judgment under appeal, taken a different view. Their reasonings are set out in paragraph 48 of their judgment which is reported in Mar Poulose Athanasius v. Mar Basselios Catholicos, 1957 KLJ 83 at p. 147 (D). The learned Judges of the High Court held that the Catholicos, even if validly appointed, had been assigned no. place in the Malankara Association or in the Managing Committee as its member or President and consequently could not be said to be competent to issue such a notice as Ex. 59. After pointing out that Ex. 60 had been issued by three Metropolitans as Vice-Presidents and Ex. 61 had been issued by the members of the Managing Committee, the High Court points out that in the absence of specific rules as to who can issue the notices, Exs. 60 and 61 have to be accepted as proper and valid notices issued by competent persons. Learned counsel for the respondents urges that the High Court overlooked the fact that Ex. 60 was not issued by all the Vice Presidents, because the Metropolitans on the plaintiffs side who were also Vice Presidents did not join in issuing the notice Ex. 60. There is no. substance in this contention. The judgment of the Travancore Royal Court of Final Appeal (Ex. DY) pronounced on July 12, 1889 quite clearly held that a Metropolitan of the Jacobite Syrian Church should be a native of Malabar consecrated by the Patriarch or his delegate and accepted by the people as their Metropolitan to entitle him to the spiritual and temporal government of the local church. Indeed in paragraphs 54 and 78 of his judgment in the present suit the District Judge has also definitely found that persons ordained by the Patriarch will have to be accepted by the whole Malankara Church as represented by the Malankara Association and that the Metropolitans on the plaintiffs side had not been so accepted and that, therefore, they could not possibly become Vice Presidents and their non-joinder in the notice (Ex. 60) could not vitiate it. The High Court was, therefore, quite correct in its finding that Exs. 60 and 61 were issued by proper persons. But on the question as to whether the notices had been issued and served on all the churches, the High Court has observed that there was no. reliable and convincing evidence in proof of that fact. The High Court has referred to the evidence of D.Ws. 23 and 22 and has concluded that although the notices Exs. 60 and 61 were issued by competent persons the evidence on record fell short of the standard of proof necessary for establishing the fact of service of the notices on all the churches and particularly on those on the plaintiffs side. Ordinarily we do not go behind the findings of fact by the final court of facts but in the present case it appears to us, with respect, that the learned judges of the High Court have overlooked important materials on the record which, if taken into account, will certainly go to show that all the churches had ample notice of the meeting. It is clear from the judgment that in arriving at their conclusion the learned High Court Judges completely overlooked the evidence of D.W. 29 who was the Secretary of Mar Geevarghese Dionysius and who was personally concerned with the issue of the notices. We have been taken through the evidence of the defendants witness who said that they did not think notices had been sent to the Metropolitans on the plaintiffs side. The High Court, however, completely overlooked the evidence of the plaintiffs witness Kuran Mathew (P.W. 2) who said that for meetings of the church representatives no. notices are sent to the Metropolitans but are sent only to the churches. Further, as already observed, the Metropolitans on the plaintiffs side were never accepted by the Malankara Association and, therefore, no. notices need have been sent to them. It is true that notices convening the Ex. 98-B meeting in l106 were served on the Metropolitans on the plaintiffs side, but that was a special occasion for bringing about a settlement. It is somewhat significant that we do not find in the record placed before us any statement of any witness examined by the plaintiffs that he (if he was a Metropolitan) or his church had not in fact been served. Besides, the notices by advertisement in newspapers (Exs. 62 and 63) will also be sufficient notice to the Metropolitans and churches on both sides. Learned counsel for the appellant has placed before us portions of evidence of some of the witnesses examined by the plaintiffs. Those witnesses say that even if they had been served they would not have taken any note of them and indeed would not have got them read in their church. As already observed this attitude of the partisans of the plaintiffs does not absolve the defendants from the duty of serving notices on the churches on the plaintiffs side but it undoubtedly shows that the defendants knowing of this attitude would have no. incentive to suppress the notices from them. Further the learned Judges do not also appear to have adverted to the evidence of D.W. 25 who was a partisan of the plaintiffs as admitted by P. W. 5 and who did not complain of any want of notice to his church. Further, the learned Judges have not given any reason why the notices by advertisements in the newspapers could not be accepted as sufficient notice in the absence, as they found, of any specific rules as to the mode of service. Apart from Exs. 59, 60 and 61 the advertisements in the newspapers evidenced by Exs. 62 and 63 appear to us to be sufficient notice to all churches. There is no. evidence at all that any particular church did not in fact know that a meeting was going to be held at the time and place hereinbefore mentioned. On the materials placed before us we feel satisfied that the notices were served on all the churches including those which sided with the plaintiffs and that there was no. adequate ground for rejecting the finding of fact arrived at by the trial court on this question after a fair and full consideration of the evidence on record. The conclusion of the High Court appears to us, with respect, to be based partly on a mis-reading of evidence and partly on the non-advertence to important material evidence bearing on the question and to the probabilities of the case43. Learned counsel for the respondent has tried to find fault with the notices in minor details. For instance, it has been argued that in the notices other than Ex. 59 no. agenda was mentioned. Apart from the fact that no. such objection was taken in the plaint, it is clear that those notices by a clear reference to Ex. 59, specially because they had all been sent together, did incorporate the agenda set out in full in Ex. 59. In our opinion the M.D. Seminary meeting was properly held and the first defendant, who is now the sole appellant before us, was validly appointed as the Malankara Metropolitan and as such became the ex-officio trustee of the church properties. There is no. question that the defendants 2 and 3 who are now dead had been previously elected by a meeting of the Malankara Association duly convened and held and were properly constituted trustees. In this view of the matter it must follow that the plaintiffs cannot, even in their individual or representative capacity, question the title of the defendants as validly appointed trustees. | 1 | 17,116 | 6,733 | ### Instruction:
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Judge has also definitely found that persons ordained by the Patriarch will have to be accepted by the whole Malankara Church as represented by the Malankara Association and that the Metropolitans on the plaintiffs side had not been so accepted and that, therefore, they could not possibly become Vice Presidents and their non-joinder in the notice (Ex. 60) could not vitiate it. The High Court was, therefore, quite correct in its finding that Exs. 60 and 61 were issued by proper persons. But on the question as to whether the notices had been issued and served on all the churches, the High Court has observed that there was no. reliable and convincing evidence in proof of that fact. The High Court has referred to the evidence of D.Ws. 23 and 22 and has concluded that although the notices Exs. 60 and 61 were issued by competent persons the evidence on record fell short of the standard of proof necessary for establishing the fact of service of the notices on all the churches and particularly on those on the plaintiffs side. Ordinarily we do not go behind the findings of fact by the final court of facts but in the present case it appears to us, with respect, that the learned judges of the High Court have overlooked important materials on the record which, if taken into account, will certainly go to show that all the churches had ample notice of the meeting. It is clear from the judgment that in arriving at their conclusion the learned High Court Judges completely overlooked the evidence of D.W. 29 who was the Secretary of Mar Geevarghese Dionysius and who was personally concerned with the issue of the notices. We have been taken through the evidence of the defendants witness who said that they did not think notices had been sent to the Metropolitans on the plaintiffs side. The High Court, however, completely overlooked the evidence of the plaintiffs witness Kuran Mathew (P.W. 2) who said that for meetings of the church representatives no. notices are sent to the Metropolitans but are sent only to the churches. Further, as already observed, the Metropolitans on the plaintiffs side were never accepted by the Malankara Association and, therefore, no. notices need have been sent to them. It is true that notices convening the Ex. 98-B meeting in l106 were served on the Metropolitans on the plaintiffs side, but that was a special occasion for bringing about a settlement. It is somewhat significant that we do not find in the record placed before us any statement of any witness examined by the plaintiffs that he (if he was a Metropolitan) or his church had not in fact been served. Besides, the notices by advertisement in newspapers (Exs. 62 and 63) will also be sufficient notice to the Metropolitans and churches on both sides. Learned counsel for the appellant has placed before us portions of evidence of some of the witnesses examined by the plaintiffs. Those witnesses say that even if they had been served they would not have taken any note of them and indeed would not have got them read in their church. As already observed this attitude of the partisans of the plaintiffs does not absolve the defendants from the duty of serving notices on the churches on the plaintiffs side but it undoubtedly shows that the defendants knowing of this attitude would have no. incentive to suppress the notices from them. Further the learned Judges do not also appear to have adverted to the evidence of D.W. 25 who was a partisan of the plaintiffs as admitted by P. W. 5 and who did not complain of any want of notice to his church. Further, the learned Judges have not given any reason why the notices by advertisements in the newspapers could not be accepted as sufficient notice in the absence, as they found, of any specific rules as to the mode of service. Apart from Exs. 59, 60 and 61 the advertisements in the newspapers evidenced by Exs. 62 and 63 appear to us to be sufficient notice to all churches. There is no. evidence at all that any particular church did not in fact know that a meeting was going to be held at the time and place hereinbefore mentioned. On the materials placed before us we feel satisfied that the notices were served on all the churches including those which sided with the plaintiffs and that there was no. adequate ground for rejecting the finding of fact arrived at by the trial court on this question after a fair and full consideration of the evidence on record. The conclusion of the High Court appears to us, with respect, to be based partly on a mis-reading of evidence and partly on the non-advertence to important material evidence bearing on the question and to the probabilities of the case. 43. Learned counsel for the respondent has tried to find fault with the notices in minor details. For instance, it has been argued that in the notices other than Ex. 59 no. agenda was mentioned. Apart from the fact that no. such objection was taken in the plaint, it is clear that those notices by a clear reference to Ex. 59, specially because they had all been sent together, did incorporate the agenda set out in full in Ex. 59. In our opinion the M.D. Seminary meeting was properly held and the first defendant, who is now the sole appellant before us, was validly appointed as the Malankara Metropolitan and as such became the ex-officio trustee of the church properties. There is no. question that the defendants 2 and 3 who are now dead had been previously elected by a meeting of the Malankara Association duly convened and held and were properly constituted trustees. In this view of the matter it must follow that the plaintiffs cannot, even in their individual or representative capacity, question the title of the defendants as validly appointed trustees.
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District Judge has also definitely found that persons ordained by the Patriarch will have to be accepted by the whole Malankara Church as represented by the Malankara Association and that the Metropolitans on the plaintiffs side had not been so accepted and that, therefore, they could not possibly become Vice Presidents and their non-joinder in the notice (Ex. 60) could not vitiate it. The High Court was, therefore, quite correct in its finding that Exs. 60 and 61 were issued by proper persons. But on the question as to whether the notices had been issued and served on all the churches, the High Court has observed that there was no. reliable and convincing evidence in proof of that fact. The High Court has referred to the evidence of D.Ws. 23 and 22 and has concluded that although the notices Exs. 60 and 61 were issued by competent persons the evidence on record fell short of the standard of proof necessary for establishing the fact of service of the notices on all the churches and particularly on those on the plaintiffs side. Ordinarily we do not go behind the findings of fact by the final court of facts but in the present case it appears to us, with respect, that the learned judges of the High Court have overlooked important materials on the record which, if taken into account, will certainly go to show that all the churches had ample notice of the meeting. It is clear from the judgment that in arriving at their conclusion the learned High Court Judges completely overlooked the evidence of D.W. 29 who was the Secretary of Mar Geevarghese Dionysius and who was personally concerned with the issue of the notices. We have been taken through the evidence of the defendants witness who said that they did not think notices had been sent to the Metropolitans on the plaintiffs side. The High Court, however, completely overlooked the evidence of the plaintiffs witness Kuran Mathew (P.W. 2) who said that for meetings of the church representatives no. notices are sent to the Metropolitans but are sent only to the churches. Further, as already observed, the Metropolitans on the plaintiffs side were never accepted by the Malankara Association and, therefore, no. notices need have been sent to them. It is true that notices convening the Ex. 98-B meeting in l106 were served on the Metropolitans on the plaintiffs side, but that was a special occasion for bringing about a settlement. It is somewhat significant that we do not find in the record placed before us any statement of any witness examined by the plaintiffs that he (if he was a Metropolitan) or his church had not in fact been served. Besides, the notices by advertisement in newspapers (Exs. 62 and 63) will also be sufficient notice to the Metropolitans and churches on both sides. Learned counsel for the appellant has placed before us portions of evidence of some of the witnesses examined by the plaintiffs. Those witnesses say that even if they had been served they would not have taken any note of them and indeed would not have got them read in their church. As already observed this attitude of the partisans of the plaintiffs does not absolve the defendants from the duty of serving notices on the churches on the plaintiffs side but it undoubtedly shows that the defendants knowing of this attitude would have no. incentive to suppress the notices from them. Further the learned Judges do not also appear to have adverted to the evidence of D.W. 25 who was a partisan of the plaintiffs as admitted by P. W. 5 and who did not complain of any want of notice to his church. Further, the learned Judges have not given any reason why the notices by advertisements in the newspapers could not be accepted as sufficient notice in the absence, as they found, of any specific rules as to the mode of service. Apart from Exs. 59, 60 and 61 the advertisements in the newspapers evidenced by Exs. 62 and 63 appear to us to be sufficient notice to all churches. There is no. evidence at all that any particular church did not in fact know that a meeting was going to be held at the time and place hereinbefore mentioned. On the materials placed before us we feel satisfied that the notices were served on all the churches including those which sided with the plaintiffs and that there was no. adequate ground for rejecting the finding of fact arrived at by the trial court on this question after a fair and full consideration of the evidence on record. The conclusion of the High Court appears to us, with respect, to be based partly on a mis-reading of evidence and partly on the non-advertence to important material evidence bearing on the question and to the probabilities of the case43. Learned counsel for the respondent has tried to find fault with the notices in minor details. For instance, it has been argued that in the notices other than Ex. 59 no. agenda was mentioned. Apart from the fact that no. such objection was taken in the plaint, it is clear that those notices by a clear reference to Ex. 59, specially because they had all been sent together, did incorporate the agenda set out in full in Ex. 59. In our opinion the M.D. Seminary meeting was properly held and the first defendant, who is now the sole appellant before us, was validly appointed as the Malankara Metropolitan and as such became the ex-officio trustee of the church properties. There is no. question that the defendants 2 and 3 who are now dead had been previously elected by a meeting of the Malankara Association duly convened and held and were properly constituted trustees. In this view of the matter it must follow that the plaintiffs cannot, even in their individual or representative capacity, question the title of the defendants as validly appointed trustees.
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Board Of Revenue, Madras Vs. M/S. Raj Brothers Agencies Etc | of the provisions of the Act. Section 34 (2) reads thus:"The Board of Revenue shall not pass any order under sub-section (1) if .......... (a) the time for appeal against that order has not expired; or (b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the High Court; or (c) more than four years have expired after the passing of the order." 4. The question for consideration is as to what is the meaning of the expression "the order has been made the subject of an appeal? Whether an appeal against an order which was dismissed as having been barred by time can be considered as an order which had been made the subject of an appeal"? This question does present some difficulty. But in view of the circumstances, which we shall presently set out, we will not be justified in examining the correctness of the conclusion reached by the High Court. As far back as 1963 the scope of Section 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of Madras, (1963) 14 STC 724 (Mad) . Therein the assessee contended that once an appeal is filed before a Tribunal, the Board is precluded from invoking its power under Section 34.The State of Madras controverted that position. Therein the State contended that before the jurisdiction of the Board to exercise its power under Section 34 can be held to be taken away, the appeal filed before the Tribunal must have been an effective appeal and that an appeal which was dismissed on the ground of limitation is not an effective appeal. The High Court of Madras accepted that contention and decided the case in favour of the State. In arriving at the conclusion that the words "subject of an appeal" mean the subject of an "effective appeal" High Court took into consideration the mischief that would otherwise arise namely, all that an assesses, who wants to stifle the Boards suo motu power of revision, has to do is to file a time-barred appeal and get it dismissed. It was because of that difficulty the High Court in Erode Yarn Stores case, (1963) 14 STC 724 (Mad) came to the conclusion that expression the order which has been the subject of an appeal as meaning "subject of an effective appeal."In arriving at that decision, the High Court did take into consideration the decision of this Court in Mela Ram and Sons v. The Commr. of Income-tax, Punjab, 1956 SCR 166 (AIR 1956 SC 367) wherein this Court ruled that an appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in an appeal. That was a decision rendered under the provisions of the Indian Income Tax Act, 1922. The question for decision in that case was whether an appeal lay against an order of the Appellate Assistant Commissioner dismissing an appeal as time-barred. 5. In the circumstances of the present case it is not necessary for us to consider whether the decision of the High Court in Erode Yarn Stores case, (1963) 14 STC 724 -(Mad) was correctly decided. That decision was rendered in respect of a provision in a State Act. It was rendered as far back as 1963. In that case the High Court accepted the contention of the State. That decision has stood the field till now. It must have governed several cases, decided thereafter. After that decision was rendered, the Act had been subjected to several amendments. The Legislature has not thought fit to amend Section 34. To put it differently the State had prayed for and obtained a particular interpretation of S. 34. It has accepted that interpretation to be correct ever since 1963. Under these circumstances it is not proper for this Court to upset that decision at this late stage and disturb a settled position in law. If the State wants to change the law it is open to it to move the Legislature for making the necessary amendments. We find it difficult to appreciate the States conduct in taking inconsistent positions. 6. Yet another contention was taken on behalf of the State. It was contended on behalf of the State that the assesses had no right to invoke the jurisdiction of the Board to exercise its revisional power. This contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under Section 34, then in the absence of any vitiating circumstance recognised by law the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessees appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our attention to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under Section 20 (1) of the Andhra Pradesh General Sales Tax Act, 1957, which provision is similar to S. 34 of the Act. Those decisions lend no assistance to the appellants case. | 0[ds]To put it differently the State had prayed for and obtained a particular interpretation of S. 34. It has accepted that interpretation to be correct ever since 1963. Under these circumstances it is not proper for this Court to upset that decision at this late stage and disturb a settled position in. If the State wants to change the law it is open to it to move the Legislature for making the necessary amendments. We find it difficult to appreciate the States conduct in taking inconsistent positionsThis contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under Section 34, then in the absence of any vitiating circumstance recognised by law the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessees appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our attention to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under Section 20 (1) ofthe Andhra Pradesh General Sales Tax Act, 1957, which provision is similar to S. 34 of the Act. Those decisions lend no assistance to the appellants caseThis question does present some difficulty. But in view of the circumstances, which we shall presently set out, we will not be justified in examining the correctness of the conclusion reached by the High Court. As far back as 1963 the scope of Section 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of Madras, (1963) 14 STC 724 (Mad) . Therein the assessee contended that once an appeal is filed before a Tribunal, the Board is precluded from invoking its power under Section 34.The State of Madras controverted that position. Therein the State contended that before the jurisdiction of the Board to exercise its power under Section 34 can be held to be taken away, the appeal filed before the Tribunal must have been an effective appeal and that an appeal which was dismissed on the ground of limitation is not an effective appeal. The High Court of Madras accepted that contention and decided the case in favour of the State. In arriving at the conclusion that the words "subject of an appeal" mean the subject of an "effective appeal" High Court took into consideration the mischief that would otherwise arise namely, all that an assesses, who wants to stifle the Boards suo motu power of revision, has to do is to file ad appeal and get it dismissed. It was because of that difficulty the High Court in Erode Yarn Stores case, (1963) 14 STC 724 (Mad) came to the conclusion that expression the order which has been the subject of an appeal as meaning "subject of an effective appeal."In arriving at that decision, the High Court did take into consideration the decision of this Court in Mela Ram and Sons v. The Commr. of, Punjab, 1956 SCR 166 (AIR 1956 SC 367) wherein this Court ruled that an appeal presented out of time is an appeal and an order dismissing it asThis contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under Section 34, then in the absence of any vitiating circumstance recognised by law the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessees appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our attention to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under Section 20 (1) ofthe Andhra Pradesh General Sales Tax Act, 1957, which provision is similar to S. 34 of the Act. Those decisions lend no assistance to the appellants | 0 | 1,406 | 1,014 | ### Instruction:
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of the provisions of the Act. Section 34 (2) reads thus:"The Board of Revenue shall not pass any order under sub-section (1) if .......... (a) the time for appeal against that order has not expired; or (b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the High Court; or (c) more than four years have expired after the passing of the order." 4. The question for consideration is as to what is the meaning of the expression "the order has been made the subject of an appeal? Whether an appeal against an order which was dismissed as having been barred by time can be considered as an order which had been made the subject of an appeal"? This question does present some difficulty. But in view of the circumstances, which we shall presently set out, we will not be justified in examining the correctness of the conclusion reached by the High Court. As far back as 1963 the scope of Section 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of Madras, (1963) 14 STC 724 (Mad) . Therein the assessee contended that once an appeal is filed before a Tribunal, the Board is precluded from invoking its power under Section 34.The State of Madras controverted that position. Therein the State contended that before the jurisdiction of the Board to exercise its power under Section 34 can be held to be taken away, the appeal filed before the Tribunal must have been an effective appeal and that an appeal which was dismissed on the ground of limitation is not an effective appeal. The High Court of Madras accepted that contention and decided the case in favour of the State. In arriving at the conclusion that the words "subject of an appeal" mean the subject of an "effective appeal" High Court took into consideration the mischief that would otherwise arise namely, all that an assesses, who wants to stifle the Boards suo motu power of revision, has to do is to file a time-barred appeal and get it dismissed. It was because of that difficulty the High Court in Erode Yarn Stores case, (1963) 14 STC 724 (Mad) came to the conclusion that expression the order which has been the subject of an appeal as meaning "subject of an effective appeal."In arriving at that decision, the High Court did take into consideration the decision of this Court in Mela Ram and Sons v. The Commr. of Income-tax, Punjab, 1956 SCR 166 (AIR 1956 SC 367) wherein this Court ruled that an appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in an appeal. That was a decision rendered under the provisions of the Indian Income Tax Act, 1922. The question for decision in that case was whether an appeal lay against an order of the Appellate Assistant Commissioner dismissing an appeal as time-barred. 5. In the circumstances of the present case it is not necessary for us to consider whether the decision of the High Court in Erode Yarn Stores case, (1963) 14 STC 724 -(Mad) was correctly decided. That decision was rendered in respect of a provision in a State Act. It was rendered as far back as 1963. In that case the High Court accepted the contention of the State. That decision has stood the field till now. It must have governed several cases, decided thereafter. After that decision was rendered, the Act had been subjected to several amendments. The Legislature has not thought fit to amend Section 34. To put it differently the State had prayed for and obtained a particular interpretation of S. 34. It has accepted that interpretation to be correct ever since 1963. Under these circumstances it is not proper for this Court to upset that decision at this late stage and disturb a settled position in law. If the State wants to change the law it is open to it to move the Legislature for making the necessary amendments. We find it difficult to appreciate the States conduct in taking inconsistent positions. 6. Yet another contention was taken on behalf of the State. It was contended on behalf of the State that the assesses had no right to invoke the jurisdiction of the Board to exercise its revisional power. This contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under Section 34, then in the absence of any vitiating circumstance recognised by law the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessees appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our attention to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under Section 20 (1) of the Andhra Pradesh General Sales Tax Act, 1957, which provision is similar to S. 34 of the Act. Those decisions lend no assistance to the appellants case.
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### Explanation:
To put it differently the State had prayed for and obtained a particular interpretation of S. 34. It has accepted that interpretation to be correct ever since 1963. Under these circumstances it is not proper for this Court to upset that decision at this late stage and disturb a settled position in. If the State wants to change the law it is open to it to move the Legislature for making the necessary amendments. We find it difficult to appreciate the States conduct in taking inconsistent positionsThis contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under Section 34, then in the absence of any vitiating circumstance recognised by law the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessees appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our attention to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under Section 20 (1) ofthe Andhra Pradesh General Sales Tax Act, 1957, which provision is similar to S. 34 of the Act. Those decisions lend no assistance to the appellants caseThis question does present some difficulty. But in view of the circumstances, which we shall presently set out, we will not be justified in examining the correctness of the conclusion reached by the High Court. As far back as 1963 the scope of Section 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of Madras, (1963) 14 STC 724 (Mad) . Therein the assessee contended that once an appeal is filed before a Tribunal, the Board is precluded from invoking its power under Section 34.The State of Madras controverted that position. Therein the State contended that before the jurisdiction of the Board to exercise its power under Section 34 can be held to be taken away, the appeal filed before the Tribunal must have been an effective appeal and that an appeal which was dismissed on the ground of limitation is not an effective appeal. The High Court of Madras accepted that contention and decided the case in favour of the State. In arriving at the conclusion that the words "subject of an appeal" mean the subject of an "effective appeal" High Court took into consideration the mischief that would otherwise arise namely, all that an assesses, who wants to stifle the Boards suo motu power of revision, has to do is to file ad appeal and get it dismissed. It was because of that difficulty the High Court in Erode Yarn Stores case, (1963) 14 STC 724 (Mad) came to the conclusion that expression the order which has been the subject of an appeal as meaning "subject of an effective appeal."In arriving at that decision, the High Court did take into consideration the decision of this Court in Mela Ram and Sons v. The Commr. of, Punjab, 1956 SCR 166 (AIR 1956 SC 367) wherein this Court ruled that an appeal presented out of time is an appeal and an order dismissing it asThis contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under Section 34, then in the absence of any vitiating circumstance recognised by law the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessees appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our attention to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under Section 20 (1) ofthe Andhra Pradesh General Sales Tax Act, 1957, which provision is similar to S. 34 of the Act. Those decisions lend no assistance to the appellants
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Scotts Engineering, Bangalore Vs. Rajesh P. Surana | H.K. Sema, J. 1. This appeal is preferred by defendant No.6 against the judgment and order dated 25.4.2001 passed by the High Court of Madras in O.S.A.Nos.131 of 1998 and 55 of 1999. 2. We have heard the parties. 3. The facts are cumbersome. We may, however, briefly refer to few facts for the purpose of disposal of this appeal. 4. A ship vessel M.V. Sagar owned by respondent No.1 was swept and washed ashore and grounded offshore near Madras Fishing Harbour as a result of several cyclonic storms. All efforts of respondent No.2 herein to refloat the vessel failed, it was abandoned and became a wreck. Since the crew and Master of the vessel were not paid their wages, they filed an admiralty suit in the Madras High Court being C.S.No.57 of 1995. The Court ordered the arrest of the vessel. Respondent No.2 through their agent respondent nos. 3 and 6 entered into a negotiation with the appellant for sale of the ship and finally entered into a Memorandum of Agreement counter-signed by defendant No.5 who was the owners representative under which the appellant was required to pay a sum of Rs.75 lacs forthwith and balance consideration amount of Rs.1.50 crores was to be paid by 28.4.1995. On 18.4.1995 the appellant paid a sum of Rs.75 lacs and, therefore, he filed an application no.2136 of 1995 arising out of C.S.No.57 of 1995 seeking leave to intervene in the matter as he had already purchased the vessel and also made the payment. The prayer was allowed. After the crew and Master of the said vessel were paid their wages, the suit was dismissed on satisfaction and the order of arrest was vacated. However, before the appellant could perform his part of the contract and pay the balance consideration amount of Rs.1.50 crores in terms of Memorandum of Agreement dated 17.4.1995 it appears another suit was instituted in the High Court being O.A.No.491 of 1995. The High Court has restrained the owner and its agent from alienating or encumbering the said vessel in any manner to a third party. Therefore, the appellant was unable to perform his part of contract and could not pay the remaining consideration amount of Rs.1.50 crores to the owner. 5. In the interregnum, many orders were passed and it has come to this Court several times, with which we are not really concerned. 6. Suffice it to say that the real controversy relates to the decree dated 8.6.1998 passed by the Single Judge of the Madras High Court in C.S.No.1151 of 1995. In the said suit the appellant-defendant No.6 was not arrayed as a party. However, on being application filed by the appellant, he was added as defendant No.6. It is not disputed that the decree was passed after impleading the appellant-defendant No.6 as a party respondent. The operative portion of the decree reads as under:- In the result, the plaintiff is given a decree for a sum of Rupees Ninety Five lakhs with 24% per annum from 04.07.1995 till payment and also the proportionate costs and the decree is granted against the defendants 1 to 5. 7. The Division Bench of the High Court having noticed in paragraph 8 of the judgment that the 6th defendant became a party to the suit instituted by the plaintiff on his own initiative and even after he was added as a party, the plaintiff did not claim any relief against the 6th defendant. The High Court also noticed the suit as originally framed only against defendants 1 to 5 who were the owners of the vessel, the local agent of the owner, the managing Director of the company which owned the vessel and has its registered office at Bangladesh. The High Court also noticed that the prayer made by the plaintiff in the suit was for a joint and several decree against defendants 1 to 5 for the payment of Rs.122 lakhs which the plaintiff claimed to be due to him. Having recorded such a finding the High Court reversed the decree passed by the Single Judge. 8. It is in these circumstances contended by Dr.Rajeev Dhawan, learned senior counsel for the appellant that there was no privity of contract within the plaintiff and defendant no.6 and the decree was not against defendant no.6 - appellant herein. He further submitted that the Court cannot go behind the decree and the Division Bench was in error in reversing the findings of the learned Single Judge. 9. We are of the view that the contention of Dr. Dhawan has substance. The suit filed by the plaintiff originally was against defendants 1 to 5. The appellant became a party to the suit instituted by the plaintiff-respondent herein on his own initiative. Even after the appellant was arrayed as defendant no.6 the plaintiff did not care to amend the plaint except making the appellant as defendant no.6. No relief was claimed against defendant no.6. In fact the relief prayed for in the suit was against defendants 1 to 5 jointly and severally. The learned Single Judge passed the decree against defendants 1 to 5. These are all undisputed facts. 10. Mr.A.T.M. Sampath learned counsel appearing for the plaintiff-respondents referred to the orders passed by this Court dated 13.9.1996 and 2.12.1996 where this Court, amongst others, directed the appellant to deposit the security. The aforesaid orders passed by this Court were interim orders with regard to security deposit sought to be imposed on the appellant so as to make him a surety for the suit amount. The suit was finally decreed. We are not concerned with the interim directions passed by this Court. 11. For the reasons aforestated we are of the view that the Division Bench was not justified in holding that the sum of Rs.1 crore should be paid over to the plaintiff to the extent to which the decree has remained unsatisfied. | 1[ds]. We are of the view that the contention of Dr. Dhawan has substance. The suit filed by the plaintiff originally was against defendants 1 to 5. The appellant became a party to the suit instituted by thet herein on his own initiative. Even after the appellant was arrayed as defendant no.6 the plaintiff did not care to amend the plaint except making the appellant as defendant no.6. No relief was claimed against defendant no.6. In fact the relief prayed for in the suit was against defendants 1 to 5 jointly and severally. The learned Single Judge passed the decree against defendants 1 to 5. These are all undisputed factsThe aforesaid orders passed by this Court were interim orders with regard to security deposit sought to be imposed on the appellant so as to make him a surety for the suit amount. The suit was finally decreed. We are not concerned with the interim directions passed by this Court11. For the reasons aforestated we are of the view that the Division Bench was not justified in holding that the sum of Rs.1 crore should be paid over to the plaintiff to the extent to which the decree has remained unsatisfied. | 1 | 1,063 | 215 | ### Instruction:
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H.K. Sema, J. 1. This appeal is preferred by defendant No.6 against the judgment and order dated 25.4.2001 passed by the High Court of Madras in O.S.A.Nos.131 of 1998 and 55 of 1999. 2. We have heard the parties. 3. The facts are cumbersome. We may, however, briefly refer to few facts for the purpose of disposal of this appeal. 4. A ship vessel M.V. Sagar owned by respondent No.1 was swept and washed ashore and grounded offshore near Madras Fishing Harbour as a result of several cyclonic storms. All efforts of respondent No.2 herein to refloat the vessel failed, it was abandoned and became a wreck. Since the crew and Master of the vessel were not paid their wages, they filed an admiralty suit in the Madras High Court being C.S.No.57 of 1995. The Court ordered the arrest of the vessel. Respondent No.2 through their agent respondent nos. 3 and 6 entered into a negotiation with the appellant for sale of the ship and finally entered into a Memorandum of Agreement counter-signed by defendant No.5 who was the owners representative under which the appellant was required to pay a sum of Rs.75 lacs forthwith and balance consideration amount of Rs.1.50 crores was to be paid by 28.4.1995. On 18.4.1995 the appellant paid a sum of Rs.75 lacs and, therefore, he filed an application no.2136 of 1995 arising out of C.S.No.57 of 1995 seeking leave to intervene in the matter as he had already purchased the vessel and also made the payment. The prayer was allowed. After the crew and Master of the said vessel were paid their wages, the suit was dismissed on satisfaction and the order of arrest was vacated. However, before the appellant could perform his part of the contract and pay the balance consideration amount of Rs.1.50 crores in terms of Memorandum of Agreement dated 17.4.1995 it appears another suit was instituted in the High Court being O.A.No.491 of 1995. The High Court has restrained the owner and its agent from alienating or encumbering the said vessel in any manner to a third party. Therefore, the appellant was unable to perform his part of contract and could not pay the remaining consideration amount of Rs.1.50 crores to the owner. 5. In the interregnum, many orders were passed and it has come to this Court several times, with which we are not really concerned. 6. Suffice it to say that the real controversy relates to the decree dated 8.6.1998 passed by the Single Judge of the Madras High Court in C.S.No.1151 of 1995. In the said suit the appellant-defendant No.6 was not arrayed as a party. However, on being application filed by the appellant, he was added as defendant No.6. It is not disputed that the decree was passed after impleading the appellant-defendant No.6 as a party respondent. The operative portion of the decree reads as under:- In the result, the plaintiff is given a decree for a sum of Rupees Ninety Five lakhs with 24% per annum from 04.07.1995 till payment and also the proportionate costs and the decree is granted against the defendants 1 to 5. 7. The Division Bench of the High Court having noticed in paragraph 8 of the judgment that the 6th defendant became a party to the suit instituted by the plaintiff on his own initiative and even after he was added as a party, the plaintiff did not claim any relief against the 6th defendant. The High Court also noticed the suit as originally framed only against defendants 1 to 5 who were the owners of the vessel, the local agent of the owner, the managing Director of the company which owned the vessel and has its registered office at Bangladesh. The High Court also noticed that the prayer made by the plaintiff in the suit was for a joint and several decree against defendants 1 to 5 for the payment of Rs.122 lakhs which the plaintiff claimed to be due to him. Having recorded such a finding the High Court reversed the decree passed by the Single Judge. 8. It is in these circumstances contended by Dr.Rajeev Dhawan, learned senior counsel for the appellant that there was no privity of contract within the plaintiff and defendant no.6 and the decree was not against defendant no.6 - appellant herein. He further submitted that the Court cannot go behind the decree and the Division Bench was in error in reversing the findings of the learned Single Judge. 9. We are of the view that the contention of Dr. Dhawan has substance. The suit filed by the plaintiff originally was against defendants 1 to 5. The appellant became a party to the suit instituted by the plaintiff-respondent herein on his own initiative. Even after the appellant was arrayed as defendant no.6 the plaintiff did not care to amend the plaint except making the appellant as defendant no.6. No relief was claimed against defendant no.6. In fact the relief prayed for in the suit was against defendants 1 to 5 jointly and severally. The learned Single Judge passed the decree against defendants 1 to 5. These are all undisputed facts. 10. Mr.A.T.M. Sampath learned counsel appearing for the plaintiff-respondents referred to the orders passed by this Court dated 13.9.1996 and 2.12.1996 where this Court, amongst others, directed the appellant to deposit the security. The aforesaid orders passed by this Court were interim orders with regard to security deposit sought to be imposed on the appellant so as to make him a surety for the suit amount. The suit was finally decreed. We are not concerned with the interim directions passed by this Court. 11. For the reasons aforestated we are of the view that the Division Bench was not justified in holding that the sum of Rs.1 crore should be paid over to the plaintiff to the extent to which the decree has remained unsatisfied.
### Response:
1
### Explanation:
. We are of the view that the contention of Dr. Dhawan has substance. The suit filed by the plaintiff originally was against defendants 1 to 5. The appellant became a party to the suit instituted by thet herein on his own initiative. Even after the appellant was arrayed as defendant no.6 the plaintiff did not care to amend the plaint except making the appellant as defendant no.6. No relief was claimed against defendant no.6. In fact the relief prayed for in the suit was against defendants 1 to 5 jointly and severally. The learned Single Judge passed the decree against defendants 1 to 5. These are all undisputed factsThe aforesaid orders passed by this Court were interim orders with regard to security deposit sought to be imposed on the appellant so as to make him a surety for the suit amount. The suit was finally decreed. We are not concerned with the interim directions passed by this Court11. For the reasons aforestated we are of the view that the Division Bench was not justified in holding that the sum of Rs.1 crore should be paid over to the plaintiff to the extent to which the decree has remained unsatisfied.
|
Yuvaraj Ambar Mohite Vs. State Of Maharashtra | as to how liquor was consumed by them. Not much imagination is needed to note the effect thereof. PWs 3 and 4 came to the room of the deceased and knocked the door but Appellant did not allow them to enter inside inter alia on the pretext that she was sleeping. Even if it is assumed that PW-4 could not have seen his face as only upper portion of the door was said to have been opened, PWs 3 and 4 must have heard his voice. Appellant talked to them in the morning. There was no reason as to why they would not be able to identify the voice to be that of Appellant. The immediate motive for killing the deceased by Appellant might not have been proved. What transpired in a closed room cannot be known. The circumstances brought on records amply support the prosecution case and in particular the statements of PW-3.26. The doctor who conducted autopsy found saree and petticoat of the deceased to be loose. The Gynacologist who examined the dead body of the deceased opined that there might have been intercourse before death. However, the same had not been proved beyond all shadow of doubt. PW-3 had also, as noticed hereinbefore, stated about the manner in which Appellant was recoiling on the body of the deceased which shows the amorous adventure he was making. A screw driver was found at the place of the incident. It was stained with blood. According to the doctor, the fracture sustained by the deceased was possible to be inflicted by it. Appellant was a man of strong physique. He knew Judo Karate. The doctor found contusions on the right side of the neck and three linear contusions on the left side of the neck with scratches probably due to nails. The nail clippings of Appellant were taken. They were found to be stained with human blood. The blood group of Appellant was A. His banian (Ex. 5) and nicker (Ex. 7) were found stained with human blood containing group B.27. It is true that blood group of the deceased could not be determined but then the fact remains that the undergarments of Appellant were smeared with blood of a different group. In a case of this nature, having regard to the evidence on records, we are of the opinion that motive takes a back seat.28. It may be true that the attention of Appellant had not been drawn to the contents of the reports of the forensic laboratory but the same does not vitiate the judgment of conviction and sentence as he was not prejudiced thereby.29. In State (Delhi Admn.) v. Dharampal [(2001) 10 SCC 372] , this Court opined: "Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him." [See also State of Punjab v. Swaran Singh, (2005) 6 SCC 101 ]30. Mr. Lalit complained that no test identification parade was held. As sufficient description of Appellant was given in the FIR and he was arrested soon thereafter, in our opinion, it was not necessary.31. We may, however, notice that in Munshi Singh Gautam (dead) and Others v. State of M.P. [(2005)9 SCC 631] , this Court opined: "Test identification parade would be of no consequence in view of Jawahars (PW 14) evidence that he did not know the physical description of the accused-appellants as he had not seen them on the date of occurrence. What remains is the evidence of Rajkumar (PW 12)." 32. Yet again in State of Punjab v. Swaran Singh [(2005) 6 SCC 101] , this Court went to the extent of stating that despite opportunity the accused did not specifically examine the witnesses in respect of facts deposed by him and, thus, failure on the part of the court to give an opportunity to the accused to answer specifically in regard to the evidence of the said witnesses would be immaterial as thereby he was not prejudiced.33. Mr. Lalit contended that only one photograph of Appellant should not have been shown to PW-3 in the court. The learned counsel in this behalf has drawn our attention to a decision of this Court in D. Gopalakrishnan v. Sadanand Naik and Others [(2005) 1 SCC 85] wherein in a matter of investigation this Court opined: "There are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eyewitnesses and recorded their statements under Section 161 CrPC. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photograph but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance." 34. The said decision cannot be said to have any application in the instant case. | 0[ds]25. There is no reason as to why the prosecution witnesses would falsely implicate Appellant. There was also no reason as to why they would identify a wrong person. The prosecution, therefore, proved that Appellant was the person last seen with the deceased. PW-3 had occasion to see him and the deceased together at least four times as he had been asked to purchase mutton and liquor on three occasions. He had also stated in details as to how liquor was consumed by them. Not much imagination is needed to note the effect thereof. PWs 3 and 4 came to the room of the deceased and knocked the door but Appellant did not allow them to enter inside inter alia on the pretext that she was sleeping. Even if it is assumed that PW-4 could not have seen his face as only upper portion of the door was said to have been opened, PWs 3 and 4 must have heard his voice. Appellant talked to them in the morning. There was no reason as to why they would not be able to identify the voice to be that of Appellant. The immediate motive for killing the deceased by Appellant might not have been proved. What transpired in a closed room cannot be known. The circumstances brought on records amply support the prosecution case and in particular the statements of PW-3.26. The doctor who conducted autopsy found saree and petticoat of the deceased to be loose. The Gynacologist who examined the dead body of the deceased opined that there might have been intercourse before death. However, the same had not been proved beyond all shadow of doubt. PW-3 had also, as noticed hereinbefore, stated about the manner in which Appellant was recoiling on the body of the deceased which shows the amorous adventure he was making. A screw driver was found at the place of the incident. It was stained with blood. According to the doctor, the fracture sustained by the deceased was possible to be inflicted by it. Appellant was a man of strong physique. He knew Judo Karate. The doctor found contusions on the right side of the neck and three linear contusions on the left side of the neck with scratches probably due to nails. The nail clippings of Appellant were taken. They were found to be stained with human blood. The blood group of Appellant was A. His banian (Ex. 5) and nicker (Ex. 7) were found stained with human blood containing group B.27. It is true that blood group of the deceased could not be determined but then the fact remains that the undergarments of Appellant were smeared with blood of a different group. In a case of this nature, having regard to the evidence on records, we are of the opinion that motive takes a back seat.28. It may be true that the attention of Appellant had not been drawn to the contents of the reports of the forensic laboratory but the same does not vitiate the judgment of conviction and sentence as he was not prejudiced thereby.29. In State (Delhi Admn.) v. Dharampal [(2001) 10 SCC 372] , this Courtit is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put toalso State of Punjab v. Swaran Singh, (2005) 6 SCC 101 ]30. Mr. Lalit complained that no test identification parade was held. As sufficient description of Appellant was given in the FIR and he was arrested soon thereafter, in our opinion, it was not necessary.31. We may, however, notice that in Munshi Singh Gautam (dead) and Others v. State of M.P. [(2005)9 SCC 631] , this Courtidentification parade would be of no consequence in view of Jawahars (PW 14) evidence that he did not know the physical description of the accused-appellants as he had not seen them on the date of occurrence. What remains is the evidence of Rajkumar (PW 12).Yet again in State of Punjab v. Swaran Singh [(2005) 6 SCC 101] , this Court went to the extent of stating that despite opportunity the accused did not specifically examine the witnesses in respect of facts deposed by him and, thus, failure on the part of the court to give an opportunity to the accused to answer specifically in regard to the evidence of the said witnesses would be immaterial as thereby he was not prejudiced.33. Mr. Lalit contended that only one photograph of Appellant should not have been shown to PW-3 in the court. The learned counsel in this behalf has drawn our attention to a decision of this Court in D. Gopalakrishnan v. Sadanand Naik and Others [(2005) 1 SCC 85] wherein in a matter of investigation this Courtare no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eyewitnesses and recorded their statements under Section 161 CrPC. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photograph but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance.The said decision cannot be said to have any application in the instant | 0 | 4,432 | 1,172 | ### Instruction:
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### Input:
as to how liquor was consumed by them. Not much imagination is needed to note the effect thereof. PWs 3 and 4 came to the room of the deceased and knocked the door but Appellant did not allow them to enter inside inter alia on the pretext that she was sleeping. Even if it is assumed that PW-4 could not have seen his face as only upper portion of the door was said to have been opened, PWs 3 and 4 must have heard his voice. Appellant talked to them in the morning. There was no reason as to why they would not be able to identify the voice to be that of Appellant. The immediate motive for killing the deceased by Appellant might not have been proved. What transpired in a closed room cannot be known. The circumstances brought on records amply support the prosecution case and in particular the statements of PW-3.26. The doctor who conducted autopsy found saree and petticoat of the deceased to be loose. The Gynacologist who examined the dead body of the deceased opined that there might have been intercourse before death. However, the same had not been proved beyond all shadow of doubt. PW-3 had also, as noticed hereinbefore, stated about the manner in which Appellant was recoiling on the body of the deceased which shows the amorous adventure he was making. A screw driver was found at the place of the incident. It was stained with blood. According to the doctor, the fracture sustained by the deceased was possible to be inflicted by it. Appellant was a man of strong physique. He knew Judo Karate. The doctor found contusions on the right side of the neck and three linear contusions on the left side of the neck with scratches probably due to nails. The nail clippings of Appellant were taken. They were found to be stained with human blood. The blood group of Appellant was A. His banian (Ex. 5) and nicker (Ex. 7) were found stained with human blood containing group B.27. It is true that blood group of the deceased could not be determined but then the fact remains that the undergarments of Appellant were smeared with blood of a different group. In a case of this nature, having regard to the evidence on records, we are of the opinion that motive takes a back seat.28. It may be true that the attention of Appellant had not been drawn to the contents of the reports of the forensic laboratory but the same does not vitiate the judgment of conviction and sentence as he was not prejudiced thereby.29. In State (Delhi Admn.) v. Dharampal [(2001) 10 SCC 372] , this Court opined: "Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him." [See also State of Punjab v. Swaran Singh, (2005) 6 SCC 101 ]30. Mr. Lalit complained that no test identification parade was held. As sufficient description of Appellant was given in the FIR and he was arrested soon thereafter, in our opinion, it was not necessary.31. We may, however, notice that in Munshi Singh Gautam (dead) and Others v. State of M.P. [(2005)9 SCC 631] , this Court opined: "Test identification parade would be of no consequence in view of Jawahars (PW 14) evidence that he did not know the physical description of the accused-appellants as he had not seen them on the date of occurrence. What remains is the evidence of Rajkumar (PW 12)." 32. Yet again in State of Punjab v. Swaran Singh [(2005) 6 SCC 101] , this Court went to the extent of stating that despite opportunity the accused did not specifically examine the witnesses in respect of facts deposed by him and, thus, failure on the part of the court to give an opportunity to the accused to answer specifically in regard to the evidence of the said witnesses would be immaterial as thereby he was not prejudiced.33. Mr. Lalit contended that only one photograph of Appellant should not have been shown to PW-3 in the court. The learned counsel in this behalf has drawn our attention to a decision of this Court in D. Gopalakrishnan v. Sadanand Naik and Others [(2005) 1 SCC 85] wherein in a matter of investigation this Court opined: "There are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eyewitnesses and recorded their statements under Section 161 CrPC. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photograph but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance." 34. The said decision cannot be said to have any application in the instant case.
### Response:
0
### Explanation:
been asked to purchase mutton and liquor on three occasions. He had also stated in details as to how liquor was consumed by them. Not much imagination is needed to note the effect thereof. PWs 3 and 4 came to the room of the deceased and knocked the door but Appellant did not allow them to enter inside inter alia on the pretext that she was sleeping. Even if it is assumed that PW-4 could not have seen his face as only upper portion of the door was said to have been opened, PWs 3 and 4 must have heard his voice. Appellant talked to them in the morning. There was no reason as to why they would not be able to identify the voice to be that of Appellant. The immediate motive for killing the deceased by Appellant might not have been proved. What transpired in a closed room cannot be known. The circumstances brought on records amply support the prosecution case and in particular the statements of PW-3.26. The doctor who conducted autopsy found saree and petticoat of the deceased to be loose. The Gynacologist who examined the dead body of the deceased opined that there might have been intercourse before death. However, the same had not been proved beyond all shadow of doubt. PW-3 had also, as noticed hereinbefore, stated about the manner in which Appellant was recoiling on the body of the deceased which shows the amorous adventure he was making. A screw driver was found at the place of the incident. It was stained with blood. According to the doctor, the fracture sustained by the deceased was possible to be inflicted by it. Appellant was a man of strong physique. He knew Judo Karate. The doctor found contusions on the right side of the neck and three linear contusions on the left side of the neck with scratches probably due to nails. The nail clippings of Appellant were taken. They were found to be stained with human blood. The blood group of Appellant was A. His banian (Ex. 5) and nicker (Ex. 7) were found stained with human blood containing group B.27. It is true that blood group of the deceased could not be determined but then the fact remains that the undergarments of Appellant were smeared with blood of a different group. In a case of this nature, having regard to the evidence on records, we are of the opinion that motive takes a back seat.28. It may be true that the attention of Appellant had not been drawn to the contents of the reports of the forensic laboratory but the same does not vitiate the judgment of conviction and sentence as he was not prejudiced thereby.29. In State (Delhi Admn.) v. Dharampal [(2001) 10 SCC 372] , this Courtit is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put toalso State of Punjab v. Swaran Singh, (2005) 6 SCC 101 ]30. Mr. Lalit complained that no test identification parade was held. As sufficient description of Appellant was given in the FIR and he was arrested soon thereafter, in our opinion, it was not necessary.31. We may, however, notice that in Munshi Singh Gautam (dead) and Others v. State of M.P. [(2005)9 SCC 631] , this Courtidentification parade would be of no consequence in view of Jawahars (PW 14) evidence that he did not know the physical description of the accused-appellants as he had not seen them on the date of occurrence. What remains is the evidence of Rajkumar (PW 12).Yet again in State of Punjab v. Swaran Singh [(2005) 6 SCC 101] , this Court went to the extent of stating that despite opportunity the accused did not specifically examine the witnesses in respect of facts deposed by him and, thus, failure on the part of the court to give an opportunity to the accused to answer specifically in regard to the evidence of the said witnesses would be immaterial as thereby he was not prejudiced.33. Mr. Lalit contended that only one photograph of Appellant should not have been shown to PW-3 in the court. The learned counsel in this behalf has drawn our attention to a decision of this Court in D. Gopalakrishnan v. Sadanand Naik and Others [(2005) 1 SCC 85] wherein in a matter of investigation this Courtare no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eyewitnesses and recorded their statements under Section 161 CrPC. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photograph but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance.The said decision cannot be said to have any application in the instant
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Ramchandra Mahadev Jagpat Vs. Chief Executive Officer | writ petition No. 988 of 2004 by order dated 11.03.2005 which order has attained finality in view of the dismissal of special leave petition Nos. 11318 of 2005 and 19848 of 2005. Sigtia, after receiving the copy of the letters dated 24.05.2006 and 06.06.2005 sent a reply dated 15.06.2005 wherein the Sigtia submitted that the purported termination is illegal and without any authority and no further reply was sent by the society to the said letter. Moreover, in the hearing held before the Principal Secretary dated 20.06.2005, the representative of the society made no arguments with regard to the purported termination of the agreement. Therefore, it is contended that the society has not acted on the letter of termination and that the matter has come to an end and, therefore, Sigtia did not file any petition to challenge the purported termination. It is also argued that the prayer in the writ petition No. 1277 of 2006 adversely affects the interests of the Sigtia. It is stated that with the dismissal of special leave petition No. 19848 of 2005 all the applications filed in the said petition also stood dismissed and, therefore, the petitioners in the special leave petition had no right to approach this Court by way of writ petition making the same prayer which was made in the application for directions filed in special leave petition No. 19848 of 2005 and that the effect of the order dated 13.04.2006 is that the order of the High Court dated 11.03.2005 which was not challenged in the special leave petition attained finality and that in the application for directions filed in the special leave petition No. 19848 of 2005 the society had raised the issue of termination of agreement of Sigtia and appointment of Keya developers and the same stood dismissed with the dismissal of the said special leave petition. Therefore, as rightly pointed out by Mr. Arun Jaitley in any subsequent proceedings where the termination of the agreement of applicant Sigtia with the society and replacement of Sigtia a new developer is a subject-matter, Sigtia is a proper and necessary party to it. We see much force and substance in the said argument. In our view, the applicant Sigtia has also the right to have a hearing before the SRA along with Keya Developers, the new appointee. It must also be seen that the relief sought in the special leave petition No. 10281 of 2006 though only against SRA but in effect against the applicant Sigtia and, therefore, Sigtia is the necessary party to any proceedings wherein the replacement of the Sigtia with a new developer and the termination of the agreement with the Sigtia is in issue and, therefore, Sigtia should have been made a party respondent in the writ petition No. 1277 of 2004 as well as special leave petition No. 10281 of 2006. It is also not in dispute that Sigtia was impleaded as party respondent No. 7 in the special leave petition which came to be withdrawn by the petitioner therein on 26.09.2005 on which date Sigtia appeared through their advocate in this Court. As rightly submitted by the learned Solicitor General after the withdrawal of special leave petition No. 11318 of 2005 by the petitioner Nazeer Khan Yakub Khan both the developers i.e. M/s Sigtia and Keya Developers kept on submitting applications with the SRA. However, due to pendency of the special leave petition in this Court, SRA was not able to take any decision on the representations of the developers as well as the society. At the time of hearing, our attention was also drawn to the guidelines and the several conditions to be fulfilled by the slum dwellers/the society/ as well as the developers and the remarks required to be obtained on the proposal from the concerned authorities before issuing Letter of Intent. The SRA has also to verify the resolution as passed by the general body of the slum dwellers proposed society by majority for appointing or replacing the developers for the development of the scheme. It is also necessary for SRA to verify and to see whether the plot under the development is not affected by any reservation such as playground or recreation ground in view of the stay granted by the High Court in writ petition No. 1152 of 2002 and also to verify whether the proposed appointed developer has the financial capacity to undertake and complete the scheme. Therefore, for the foregoing reasons, we hold that Sigtia is a necessary and proper party to the special leave petition No. 10281 of 2006 filed by Ramchandra Mahadev Jagpat & Ors. We say that the order dated 27.06.2006 was passed in S.L.P. No. 10281/2006 on the basis of representation made by all the respective senior counsel appearing at that time. The order was not obtained as playing fraud on Court as alleged by the applicant herein. Now, it is brought to our notice and made out a clear case as to why Sigtia was a necessary party to the special leave petition No. 10281 of 2006 and in the light of the directions given by the High Court dated 11.03.2005 in writ petition No. 988 of 2004 and of the order dated 04.05.2006 in writ petition No. 77 of 2006. We have, therefore, no hesitation to recall our order dated 27.06.2006 in special leave petition No. 10281 of 2006. Since the entire matter was argued at length now by all the respective senior counsel, there is no necessity to rehear special leave petition No. 10281 of 2006. This apart in the concluding portion of our order dated 27.06.2006 in special leave petition No. 10281 of 2006, this Court directed the SRA to issue proper orders within two weeks from 27.06.2006. The said direction is also not correct. This Court ought to have directed the SRA, if at all, to consider issuing of the Letter of Intent in favour of Keya Developers in view of the replacement of previous Developers M/s Sigtia. | 1[ds]19. In pursuance of the said High Court order dt.11.3.2005, M/s. Sigtia Construction Pvt. Ltd. is hereby depositing a sum of Rs.2,50,00,000/(Rupees Two Crores Fifty Lakhs only) drawn on Standard Chartered Bank, Santacruz (W) Branch, Mumbai vide Cheque No.991396 dt. 2.6.2006 towards the interest free deposit with SRA as the performance related guarantee as directed by the Honble High Court in its landmark judgment dt.11.3.2005. The SRA may put it in its fixed deposit account, as it may deem fit.20. Besides interest free deposit of Rs. 2.5 crocres, M/s. Sigtia Construction Pvt. Ltd. will comply with and abide other conditions such as(a) First we will construct Rehab portion in all respect and then ask permission of sale portion.(b) We accept the Supervision of B.M.C. Engineer who will monitor the project.(c) We will give required undertaking/indemnity bond etc. as directed by Honble High Court and as desired byapplicant Sigtia have explained to this Court as to how the deposit of Rs.2.5 crores was not be deposited with SRA. It also denied that the agreement entered into between Sigtia and the society came to an end on 25.04.2005 by efflux of time. In this context, Clause 22 of the agreement must be read as a whole and when so read, it would be clear that the developer was to start the actual construction after the issuance of the commencement certificate by the authority. Therefore, the period of 3 years must be construed to begin from the date when commencement certificate is issued and not from the date of execution of the agreement. It was also submitted that the letters dated 25.04.2005 and 06.06.2005 were issued by 2 or 3 members of the society who were acting with ulterior motive and in collusion with the rival developer. Even the SRA to whom the letter dated 06.06.2005 was addressed in its counter affidavit filed before this Court in the present proceedings has stated that they did not take notice of the said letter of termination as the letter was not supported by the relevant resolution of the society. After 11.03.2005, Sigtia approached the SRA on several occasions requesting for the issuance of the Letter of Intent but since no response was coming from the Housing Department of Government of Maharashtra on 10.06.1995. In our view after the dismissal of the special leave petition No. 19848 of 2005, the order of the High Court dated 11.03.2005 attained finality and there was no proposal of M/s Keya Developers before the SRA on 13.04.2006 and, therefore, there was no question of SRA considering the proposal made by the new developer. In our view, Sigtia was a necessary party to the writ petition and to the special leave petition No. 10281 of 2006 as it directly affected by any order appointing Keya as developer. The society has also entered into an agreement and also executed an irrevocable general Power of Attorney dated 19.03.2004 wherein expressed its satisfaction with the progress in the work made by the Sigtia and also by the undertaking dated 26.02.2004 where the society undertook to continue with Sigtia as developer till the completion of the SRA project. Though it is contended by Sigtia that the termination by the society on 29.04.2005 was illegal and without authority, the Sigtia has not so far challenged the order of termination by the society. This important factor has also to be taken note off by the SRA at the time of considering the case of Sigtia along with Keya Developers. It is also stated that the consent affidavits of more than 70% of the slum dwellers had already been obtained by Sigtia. It is also submitted in the rejoinder affidavit that Sigtia did have the technical expertise and financial capability to complete the work and that all these issues were decided in favour of Sigita by the High Court in writ petition No. 988 of 2004 by order dated 11.03.2005 which order has attained finality in view of the dismissal of special leave petition Nos. 11318 of 2005 and 19848 of 2005. Sigtia, after receiving the copy of the letters dated 24.05.2006 and 06.06.2005 sent a reply dated 15.06.2005 wherein the Sigtia submitted that the purported termination is illegal and without any authority and no further reply was sent by the society to the said letter. Moreover, in the hearing held before the Principal Secretary dated 20.06.2005, the representative of the society made no arguments with regard to the purported termination of the agreement. Therefore, it is contended that the society has not acted on the letter of termination and that the matter has come to an end and, therefore, Sigtia did not file any petition to challenge the purported termination. It is also argued that the prayer in the writ petition No. 1277 of 2006 adversely affects the interests of the Sigtia. It is stated that with the dismissal of special leave petition No. 19848 of 2005 all the applications filed in the said petition also stood dismissed and, therefore, the petitioners in the special leave petition had no right to approach this Court by way of writ petition making the same prayer which was made in the application for directions filed in special leave petition No. 19848 of 2005 and that the effect of the order dated 13.04.2006 is that the order of the High Court dated 11.03.2005 which was not challenged in the special leave petition attained finality and that in the application for directions filed in the special leave petition No. 19848 of 2005 the society had raised the issue of termination of agreement of Sigtia and appointment of Keya developers and the same stood dismissed with the dismissal of the said special leave petition. Therefore, as rightly pointed out by Mr. Arun Jaitley in any subsequent proceedings where the termination of the agreement of applicant Sigtia with the society and replacement of Sigtia a new developer is aSigtia is a proper and necessary party to it. We see much force and substance in the said argument. In our view, the applicant Sigtia has also the right to have a hearing before the SRA along with Keya Developers, the new appointee. It must also be seen that the relief sought in the special leave petition No. 10281 of 2006 though only against SRA but in effect against the applicant Sigtia and, therefore, Sigtia is the necessary party to any proceedings wherein the replacement of the Sigtia with a new developer and the termination of the agreement with the Sigtia is in issue and, therefore, Sigtia should have been made a party respondent in the writ petition No. 1277 of 2004 as well as special leave petition No. 10281 of 2006. It is also not in dispute that Sigtia was impleaded as party respondent No. 7 in the special leave petition which came to be withdrawn by the petitioner therein on 26.09.2005 on which date Sigtia appeared through their advocate in this Court. As rightly submitted by the learned Solicitor General after the withdrawal of special leave petition No. 11318 of 2005 by the petitioner Nazeer Khan Yakub Khan both the developers i.e. M/s Sigtia and Keya Developers kept on submitting applications with the SRA. However, due to pendency of the special leave petition in this Court, SRA was not able to take any decision on the representations of the developers as well as the society. At the time of hearing, our attention was also drawn to the guidelines and the several conditions to be fulfilled by the slum dwellers/the society/ as well as the developers and the remarks required to be obtained on the proposal from the concerned authorities before issuing Letter of Intent. The SRA has also to verify the resolution as passed by the general body of the slum dwellers proposed society by majority for appointing or replacing the developers for the development of the scheme. It is also necessary for SRA to verify and to see whether the plot under the development is not affected by any reservation such as playground or recreation ground in view of the stay granted by the High Court in writ petition No. 1152 of 2002 and also to verify whether the proposed appointed developer has the financial capacity to undertake and complete the scheme. Therefore, for the foregoing reasons, we hold that Sigtia is a necessary and proper party to the special leave petition No. 10281 of 2006 filed by Ramchandra Mahadev Jagpat & Ors. We say that the order dated 27.06.2006 was passed in S.L.P. No. 10281/2006 on the basis of representation made by all the respective senior counsel appearing at that time. The order was not obtained as playing fraud on Court as alleged by the applicant herein. Now, it is brought to our notice and made out a clear case as to why Sigtia was a necessary party to the special leave petition No. 10281 of 2006 and in the light of the directions given by the High Court dated 11.03.2005 in writ petition No. 988 of 2004 and of the order dated 04.05.2006 in writ petition No. 77 of 2006. We have, therefore, no hesitation to recall our order dated 27.06.2006 in special leave petition No. 10281 of 2006. Since the entire matter was argued at length now by all the respective senior counsel, there is no necessity to rehear special leave petition No. 10281 of 2006. This apart in the concluding portion of our order dated 27.06.2006 in special leave petition No. 10281 of 2006, this Court directed the SRA to issue proper orders within two weeks from 27.06.2006. The said direction is also not correct. This Court ought to have directed the SRA, if at all, to consider issuing of the Letter of Intent in favour of Keya Developers in view of the replacement of previous Developers M/s Sigtia. | 1 | 10,096 | 1,775 | ### 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:
writ petition No. 988 of 2004 by order dated 11.03.2005 which order has attained finality in view of the dismissal of special leave petition Nos. 11318 of 2005 and 19848 of 2005. Sigtia, after receiving the copy of the letters dated 24.05.2006 and 06.06.2005 sent a reply dated 15.06.2005 wherein the Sigtia submitted that the purported termination is illegal and without any authority and no further reply was sent by the society to the said letter. Moreover, in the hearing held before the Principal Secretary dated 20.06.2005, the representative of the society made no arguments with regard to the purported termination of the agreement. Therefore, it is contended that the society has not acted on the letter of termination and that the matter has come to an end and, therefore, Sigtia did not file any petition to challenge the purported termination. It is also argued that the prayer in the writ petition No. 1277 of 2006 adversely affects the interests of the Sigtia. It is stated that with the dismissal of special leave petition No. 19848 of 2005 all the applications filed in the said petition also stood dismissed and, therefore, the petitioners in the special leave petition had no right to approach this Court by way of writ petition making the same prayer which was made in the application for directions filed in special leave petition No. 19848 of 2005 and that the effect of the order dated 13.04.2006 is that the order of the High Court dated 11.03.2005 which was not challenged in the special leave petition attained finality and that in the application for directions filed in the special leave petition No. 19848 of 2005 the society had raised the issue of termination of agreement of Sigtia and appointment of Keya developers and the same stood dismissed with the dismissal of the said special leave petition. Therefore, as rightly pointed out by Mr. Arun Jaitley in any subsequent proceedings where the termination of the agreement of applicant Sigtia with the society and replacement of Sigtia a new developer is a subject-matter, Sigtia is a proper and necessary party to it. We see much force and substance in the said argument. In our view, the applicant Sigtia has also the right to have a hearing before the SRA along with Keya Developers, the new appointee. It must also be seen that the relief sought in the special leave petition No. 10281 of 2006 though only against SRA but in effect against the applicant Sigtia and, therefore, Sigtia is the necessary party to any proceedings wherein the replacement of the Sigtia with a new developer and the termination of the agreement with the Sigtia is in issue and, therefore, Sigtia should have been made a party respondent in the writ petition No. 1277 of 2004 as well as special leave petition No. 10281 of 2006. It is also not in dispute that Sigtia was impleaded as party respondent No. 7 in the special leave petition which came to be withdrawn by the petitioner therein on 26.09.2005 on which date Sigtia appeared through their advocate in this Court. As rightly submitted by the learned Solicitor General after the withdrawal of special leave petition No. 11318 of 2005 by the petitioner Nazeer Khan Yakub Khan both the developers i.e. M/s Sigtia and Keya Developers kept on submitting applications with the SRA. However, due to pendency of the special leave petition in this Court, SRA was not able to take any decision on the representations of the developers as well as the society. At the time of hearing, our attention was also drawn to the guidelines and the several conditions to be fulfilled by the slum dwellers/the society/ as well as the developers and the remarks required to be obtained on the proposal from the concerned authorities before issuing Letter of Intent. The SRA has also to verify the resolution as passed by the general body of the slum dwellers proposed society by majority for appointing or replacing the developers for the development of the scheme. It is also necessary for SRA to verify and to see whether the plot under the development is not affected by any reservation such as playground or recreation ground in view of the stay granted by the High Court in writ petition No. 1152 of 2002 and also to verify whether the proposed appointed developer has the financial capacity to undertake and complete the scheme. Therefore, for the foregoing reasons, we hold that Sigtia is a necessary and proper party to the special leave petition No. 10281 of 2006 filed by Ramchandra Mahadev Jagpat & Ors. We say that the order dated 27.06.2006 was passed in S.L.P. No. 10281/2006 on the basis of representation made by all the respective senior counsel appearing at that time. The order was not obtained as playing fraud on Court as alleged by the applicant herein. Now, it is brought to our notice and made out a clear case as to why Sigtia was a necessary party to the special leave petition No. 10281 of 2006 and in the light of the directions given by the High Court dated 11.03.2005 in writ petition No. 988 of 2004 and of the order dated 04.05.2006 in writ petition No. 77 of 2006. We have, therefore, no hesitation to recall our order dated 27.06.2006 in special leave petition No. 10281 of 2006. Since the entire matter was argued at length now by all the respective senior counsel, there is no necessity to rehear special leave petition No. 10281 of 2006. This apart in the concluding portion of our order dated 27.06.2006 in special leave petition No. 10281 of 2006, this Court directed the SRA to issue proper orders within two weeks from 27.06.2006. The said direction is also not correct. This Court ought to have directed the SRA, if at all, to consider issuing of the Letter of Intent in favour of Keya Developers in view of the replacement of previous Developers M/s Sigtia.
### Response:
1
### Explanation:
Court in writ petition No. 988 of 2004 by order dated 11.03.2005 which order has attained finality in view of the dismissal of special leave petition Nos. 11318 of 2005 and 19848 of 2005. Sigtia, after receiving the copy of the letters dated 24.05.2006 and 06.06.2005 sent a reply dated 15.06.2005 wherein the Sigtia submitted that the purported termination is illegal and without any authority and no further reply was sent by the society to the said letter. Moreover, in the hearing held before the Principal Secretary dated 20.06.2005, the representative of the society made no arguments with regard to the purported termination of the agreement. Therefore, it is contended that the society has not acted on the letter of termination and that the matter has come to an end and, therefore, Sigtia did not file any petition to challenge the purported termination. It is also argued that the prayer in the writ petition No. 1277 of 2006 adversely affects the interests of the Sigtia. It is stated that with the dismissal of special leave petition No. 19848 of 2005 all the applications filed in the said petition also stood dismissed and, therefore, the petitioners in the special leave petition had no right to approach this Court by way of writ petition making the same prayer which was made in the application for directions filed in special leave petition No. 19848 of 2005 and that the effect of the order dated 13.04.2006 is that the order of the High Court dated 11.03.2005 which was not challenged in the special leave petition attained finality and that in the application for directions filed in the special leave petition No. 19848 of 2005 the society had raised the issue of termination of agreement of Sigtia and appointment of Keya developers and the same stood dismissed with the dismissal of the said special leave petition. Therefore, as rightly pointed out by Mr. Arun Jaitley in any subsequent proceedings where the termination of the agreement of applicant Sigtia with the society and replacement of Sigtia a new developer is aSigtia is a proper and necessary party to it. We see much force and substance in the said argument. In our view, the applicant Sigtia has also the right to have a hearing before the SRA along with Keya Developers, the new appointee. It must also be seen that the relief sought in the special leave petition No. 10281 of 2006 though only against SRA but in effect against the applicant Sigtia and, therefore, Sigtia is the necessary party to any proceedings wherein the replacement of the Sigtia with a new developer and the termination of the agreement with the Sigtia is in issue and, therefore, Sigtia should have been made a party respondent in the writ petition No. 1277 of 2004 as well as special leave petition No. 10281 of 2006. It is also not in dispute that Sigtia was impleaded as party respondent No. 7 in the special leave petition which came to be withdrawn by the petitioner therein on 26.09.2005 on which date Sigtia appeared through their advocate in this Court. As rightly submitted by the learned Solicitor General after the withdrawal of special leave petition No. 11318 of 2005 by the petitioner Nazeer Khan Yakub Khan both the developers i.e. M/s Sigtia and Keya Developers kept on submitting applications with the SRA. However, due to pendency of the special leave petition in this Court, SRA was not able to take any decision on the representations of the developers as well as the society. At the time of hearing, our attention was also drawn to the guidelines and the several conditions to be fulfilled by the slum dwellers/the society/ as well as the developers and the remarks required to be obtained on the proposal from the concerned authorities before issuing Letter of Intent. The SRA has also to verify the resolution as passed by the general body of the slum dwellers proposed society by majority for appointing or replacing the developers for the development of the scheme. It is also necessary for SRA to verify and to see whether the plot under the development is not affected by any reservation such as playground or recreation ground in view of the stay granted by the High Court in writ petition No. 1152 of 2002 and also to verify whether the proposed appointed developer has the financial capacity to undertake and complete the scheme. Therefore, for the foregoing reasons, we hold that Sigtia is a necessary and proper party to the special leave petition No. 10281 of 2006 filed by Ramchandra Mahadev Jagpat & Ors. We say that the order dated 27.06.2006 was passed in S.L.P. No. 10281/2006 on the basis of representation made by all the respective senior counsel appearing at that time. The order was not obtained as playing fraud on Court as alleged by the applicant herein. Now, it is brought to our notice and made out a clear case as to why Sigtia was a necessary party to the special leave petition No. 10281 of 2006 and in the light of the directions given by the High Court dated 11.03.2005 in writ petition No. 988 of 2004 and of the order dated 04.05.2006 in writ petition No. 77 of 2006. We have, therefore, no hesitation to recall our order dated 27.06.2006 in special leave petition No. 10281 of 2006. Since the entire matter was argued at length now by all the respective senior counsel, there is no necessity to rehear special leave petition No. 10281 of 2006. This apart in the concluding portion of our order dated 27.06.2006 in special leave petition No. 10281 of 2006, this Court directed the SRA to issue proper orders within two weeks from 27.06.2006. The said direction is also not correct. This Court ought to have directed the SRA, if at all, to consider issuing of the Letter of Intent in favour of Keya Developers in view of the replacement of previous Developers M/s Sigtia.
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M/S.Kanchanganga Sea Foods Ltd Vs. Commnr. Of Income Tax | appellant only by way of an alternate submission on income from services and not in relation to the tax of offshore supply of goods." 12. Mr. R.P. Bhatt, learned Senior Counsel appearing on behalf of the respondent, however, contends that income had accrued to the non-resident company in India and admittedly the assessee having not carried out its obligations to make deductions, the authorities and the Tribunal rightly held the assessee in default. 13. We have considered the submissions advanced and we do not find any force in the submissions of the Counsel for the appellant and the authorities relied on are clearly distinguishable and those in no way support assessees contention. Section 5(2) of the Income Tax Act provides, what would be the total income of a non-resident, same reads as follows: "5(1) xxxx xxxx xxxx (2) Subject to the provisions of this Act, the total income of any previous year of a person who is a non-resident includes all income from whatever source derived which-- (a) is received or is deemed to be received in India in such year by or on behalf of such person; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year. Explanation 1.--Income accruing or arising outside India shall not be deemed to be received in India within the meaning of this section by reason only of the fact that it is taken into account in a balance sheet prepared in India. Explanation 2.--For the removal of doubts, it is hereby declared that income which has been included in the total income of a person on the basis that it has accrued or arisen or is deemed to have accrued or arisen to him shall not again be so included on the basis that it is received or deemed to be received by him in India. 14. From a plain reading of the aforesaid provision it is evident that total income of non-resident company shall include all income from whatever source derived received or deemed to be received in India. It also includes such income which either accrues, arises or deem to accrue or arise to a non-resident company in India. The legal fiction created has to be understood in the light of terms of contract. Here, in the present case the chartered vessels with the entire catch were brought to the Indian Port, the catch were certified for human consumption, valued, and after customs and port clearance non-resident company received 85% of the catch. So long the catch was not apportioned the entire catch was the property of the assessee and not of non-resident company as the latter did not have any control over the catch. It is after the non-resident company was given share of its 85% of the catch it did come within its control. It is trite to say that to constitute income the recipient must have control over it. Thus the non-resident company effectively received the charter-fee in India. Therefore, in our opinion, the receipt of 85% of the catch was in India and this being the first receipt in the eye of law and being in India would be chargeable to tax. In our opinion, the non-resident company having received the charter fee in the shape of 85% of fish catch in India, sale of fish and realization of sale consideration of fish by it outside India shall not mean that there was no receipt in India. When 85% of the catch is received after valuation by the non-resident company in India, in sum and substance, it amounts to receipt of value of money. Had it not been so, the value of the catch ought to have been the price for which non-resident company sold at the destination chosen by it. According to the terms and conditions of the agreement charter fee was to be paid in terms of money i.e. US Dollar 600,000/= per vessel per annum "payable by way of 85% of gross earning from the fish-sales". In the light of what we have observed above there is no escape from the conclusion that income earned by the non-resident company was chargeable to tax under Section 5(2) of the Income Tax Act. 15. Now referring to the decisions of this Court in the case of Toshoku Ltd. (supra), same is clearly distinguishable. In the said case the amount credited in favour of the assessee was not at its disposal and in the background of the said fact it was held that making entries in the books would not amount to receipt of income, actual or constructive, which would be evident from the following passage of the judgment: "It cannot be said that the making of the book entries in the books of the statutory agent amounted to receipt by the assessees who were non-residents as the amounts so credited in their favour were not at their disposal or control.Here the non-resident company had received charter-fee in India in the shape of 85% of the catch after its valuation, over which it had alone control and therefore receipt was chargeable to tax." 16. In the case of Ishikawajima-Harima Heavy Industries Ltd. (supra) the entire transaction was completed on high-seas, and in this background, it was held that profit did not arise in India. In the case in hand, undisputedly the catch was brought to an Indian Port, where it was valued and after paying the local taxes, charter fee in the shape of 85% of the catch was given to the non-resident company. 17. Both the decisions, therefore, do not lend any support to the contention of the assessee. 18. From the conspectus of discussion aforesaid, it is obvious that the assessee was liable to deduct tax under Section 195 of the Income Tax Act on the payment made to the non-resident company and admittedly it having not deducted and deposited was rightly held to be in default under Section 201 of the Income Tax Act. 19. | 0[ds]n the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the receipt in the form of 85% of the catch of fish by the non-resident was in India since all the formalities are completed in India.On the facts and in the circumstances of the case, the Tribunal is justified in rejecting the claim that there is no payment to the non-resident by the Assessee but there was only a receipt of 15% of the value of fish catch from the non-resident to the Assessee;On the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the Assessee is liable to deduct tax at source under Section 195 of the Act on the alleged payment made to the non-resident towards hire charges even though the alleged payment is not in cash; andOn the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the Assessee was in default underof the Income Tax Act, 1961 for the failure to deduct tax under Section 195 of the Income Tax Act."11. Mr. A. Subba Rao, learned Counsel appearing on behalf of the appellant-assessee submits that there was no income chargeable which resulted to the non-resident company as no payment of any sum by the assessee to the non-resident company took place in India and therefore, the liability to deduct tax at source under Section 195 of the Income Tax Act or the liability under Section 201 of the Act did not arise. It has also been pointed out by the learned Counsel that there was no receipt of income at all in India as the 85% of the fish catch, which was given to the non-resident company, was sold outside India and the sale proceeds thereof were also realized outside India. In his submission, the non-resident company, therefore, had no receipts in India. In support of the submission reliance has been placed on a decision of this Court in the case of Commissioner of Income-Tax, A.P. v. Toshoku Ltd. (125 I.T.R. 1980 525) and our attention has been drawn to the following passage from the said judgment:"In the instant case, the non-resident assessees did not carry on any business operations in the taxable territories. They acted as selling agents outside India. The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by cl.(a) of the Explanation toof the Act. The commission amounts which were earned by the non-resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India. The High Court was, therefore, right in answering the question against the department."Reliance has also been placed on a decision of this Court in the case of Ishikawajima-Harima Heavy Industries Ltd. v. Director of Income-Tax, Mumbai [(2007) 288 I.T.R. 408 (SC)] and our attention has been drawn to the following passage at pages 443-444:"Therefore, in our opinion, the concepts profits of business connection and permanent establishment should not be mixed up. Whereas business connection is relevant for the purpose of application of Section 9; the concept of permanent establishment is relevant for assessing the income of a non-resident under the DTAA. There, however, may be a case where there can be overlapping of income; but we are not concerned with such a situation. The entire transaction having been completed on the high seas, the profits on sale did not arise in India, as has been contended by the appellant. Thus, having been excluded from the scope of taxation under the Act, the application of the double taxation treaty would not arise. The Double Tax Treaty, however, was taken recourse to by the appellant only by way of an alternate submission on income from services and not in relation to the tax of offshore supply of goods." | 0 | 3,849 | 753 | ### 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:
appellant only by way of an alternate submission on income from services and not in relation to the tax of offshore supply of goods." 12. Mr. R.P. Bhatt, learned Senior Counsel appearing on behalf of the respondent, however, contends that income had accrued to the non-resident company in India and admittedly the assessee having not carried out its obligations to make deductions, the authorities and the Tribunal rightly held the assessee in default. 13. We have considered the submissions advanced and we do not find any force in the submissions of the Counsel for the appellant and the authorities relied on are clearly distinguishable and those in no way support assessees contention. Section 5(2) of the Income Tax Act provides, what would be the total income of a non-resident, same reads as follows: "5(1) xxxx xxxx xxxx (2) Subject to the provisions of this Act, the total income of any previous year of a person who is a non-resident includes all income from whatever source derived which-- (a) is received or is deemed to be received in India in such year by or on behalf of such person; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year. Explanation 1.--Income accruing or arising outside India shall not be deemed to be received in India within the meaning of this section by reason only of the fact that it is taken into account in a balance sheet prepared in India. Explanation 2.--For the removal of doubts, it is hereby declared that income which has been included in the total income of a person on the basis that it has accrued or arisen or is deemed to have accrued or arisen to him shall not again be so included on the basis that it is received or deemed to be received by him in India. 14. From a plain reading of the aforesaid provision it is evident that total income of non-resident company shall include all income from whatever source derived received or deemed to be received in India. It also includes such income which either accrues, arises or deem to accrue or arise to a non-resident company in India. The legal fiction created has to be understood in the light of terms of contract. Here, in the present case the chartered vessels with the entire catch were brought to the Indian Port, the catch were certified for human consumption, valued, and after customs and port clearance non-resident company received 85% of the catch. So long the catch was not apportioned the entire catch was the property of the assessee and not of non-resident company as the latter did not have any control over the catch. It is after the non-resident company was given share of its 85% of the catch it did come within its control. It is trite to say that to constitute income the recipient must have control over it. Thus the non-resident company effectively received the charter-fee in India. Therefore, in our opinion, the receipt of 85% of the catch was in India and this being the first receipt in the eye of law and being in India would be chargeable to tax. In our opinion, the non-resident company having received the charter fee in the shape of 85% of fish catch in India, sale of fish and realization of sale consideration of fish by it outside India shall not mean that there was no receipt in India. When 85% of the catch is received after valuation by the non-resident company in India, in sum and substance, it amounts to receipt of value of money. Had it not been so, the value of the catch ought to have been the price for which non-resident company sold at the destination chosen by it. According to the terms and conditions of the agreement charter fee was to be paid in terms of money i.e. US Dollar 600,000/= per vessel per annum "payable by way of 85% of gross earning from the fish-sales". In the light of what we have observed above there is no escape from the conclusion that income earned by the non-resident company was chargeable to tax under Section 5(2) of the Income Tax Act. 15. Now referring to the decisions of this Court in the case of Toshoku Ltd. (supra), same is clearly distinguishable. In the said case the amount credited in favour of the assessee was not at its disposal and in the background of the said fact it was held that making entries in the books would not amount to receipt of income, actual or constructive, which would be evident from the following passage of the judgment: "It cannot be said that the making of the book entries in the books of the statutory agent amounted to receipt by the assessees who were non-residents as the amounts so credited in their favour were not at their disposal or control.Here the non-resident company had received charter-fee in India in the shape of 85% of the catch after its valuation, over which it had alone control and therefore receipt was chargeable to tax." 16. In the case of Ishikawajima-Harima Heavy Industries Ltd. (supra) the entire transaction was completed on high-seas, and in this background, it was held that profit did not arise in India. In the case in hand, undisputedly the catch was brought to an Indian Port, where it was valued and after paying the local taxes, charter fee in the shape of 85% of the catch was given to the non-resident company. 17. Both the decisions, therefore, do not lend any support to the contention of the assessee. 18. From the conspectus of discussion aforesaid, it is obvious that the assessee was liable to deduct tax under Section 195 of the Income Tax Act on the payment made to the non-resident company and admittedly it having not deducted and deposited was rightly held to be in default under Section 201 of the Income Tax Act. 19.
### Response:
0
### Explanation:
n the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the receipt in the form of 85% of the catch of fish by the non-resident was in India since all the formalities are completed in India.On the facts and in the circumstances of the case, the Tribunal is justified in rejecting the claim that there is no payment to the non-resident by the Assessee but there was only a receipt of 15% of the value of fish catch from the non-resident to the Assessee;On the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the Assessee is liable to deduct tax at source under Section 195 of the Act on the alleged payment made to the non-resident towards hire charges even though the alleged payment is not in cash; andOn the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the Assessee was in default underof the Income Tax Act, 1961 for the failure to deduct tax under Section 195 of the Income Tax Act."11. Mr. A. Subba Rao, learned Counsel appearing on behalf of the appellant-assessee submits that there was no income chargeable which resulted to the non-resident company as no payment of any sum by the assessee to the non-resident company took place in India and therefore, the liability to deduct tax at source under Section 195 of the Income Tax Act or the liability under Section 201 of the Act did not arise. It has also been pointed out by the learned Counsel that there was no receipt of income at all in India as the 85% of the fish catch, which was given to the non-resident company, was sold outside India and the sale proceeds thereof were also realized outside India. In his submission, the non-resident company, therefore, had no receipts in India. In support of the submission reliance has been placed on a decision of this Court in the case of Commissioner of Income-Tax, A.P. v. Toshoku Ltd. (125 I.T.R. 1980 525) and our attention has been drawn to the following passage from the said judgment:"In the instant case, the non-resident assessees did not carry on any business operations in the taxable territories. They acted as selling agents outside India. The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by cl.(a) of the Explanation toof the Act. The commission amounts which were earned by the non-resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India. The High Court was, therefore, right in answering the question against the department."Reliance has also been placed on a decision of this Court in the case of Ishikawajima-Harima Heavy Industries Ltd. v. Director of Income-Tax, Mumbai [(2007) 288 I.T.R. 408 (SC)] and our attention has been drawn to the following passage at pages 443-444:"Therefore, in our opinion, the concepts profits of business connection and permanent establishment should not be mixed up. Whereas business connection is relevant for the purpose of application of Section 9; the concept of permanent establishment is relevant for assessing the income of a non-resident under the DTAA. There, however, may be a case where there can be overlapping of income; but we are not concerned with such a situation. The entire transaction having been completed on the high seas, the profits on sale did not arise in India, as has been contended by the appellant. Thus, having been excluded from the scope of taxation under the Act, the application of the double taxation treaty would not arise. The Double Tax Treaty, however, was taken recourse to by the appellant only by way of an alternate submission on income from services and not in relation to the tax of offshore supply of goods."
|
SOMAKKA (DEAD) BY LRS Vs. K.P. BASAVARAJ (DEAD) BY LRS | is expected of him as an appellate court. 29. Further following the above, there have been a series of judgments by this Court; 29.1 In Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 para 15 (relevant portion of para 15) is reproduced below: 15…The appellate court has jurisdiction to reverse or affirm the findings of the Trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. … while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. 29.2 In H.K.N. Swami vs. Irshad Basith (2005) 10 SCC 243, this Court again reiterated the same principle in paragraph 3 of the judgment: 3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 29.3 In 2015, this Court again in Vinod Kumar vs. Gangadhar (2015) 1 SCC 391 considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder: 18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the Trial Court can be sustained or not and if so, how, and if not, why. 19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 CPC mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we unable to uphold the impugned judgement of the High Court. 29.4 Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjual and others vs. Shyamsundar and Others (2022) 3 SCC 90, reiterated the same view in para 8 thereof, which is reproduced hereunder: 8. Section 96 of the Code of Civil Procedure, 1908 (for short, CPC) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the Trial Court. It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non- observance of these requirements lead to infirmity in the judgment. 30. From the above settled legal principles on the duty, scope and powers of the First Appellate Court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court. The impugned judgment of the High Court is thus unsustainable in law and liable to be set aside. 31. The next question which arises is that where the judgment of the Appellate Court is being set aside on the ground of non- consideration of the evidence on record, the matter would normally be required to be remanded to the First Appellate Court, whether in the facts and circumstances this case requires a remand. In the facts and circumstances of the present case, we find that the suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned Counsel for the respondent. As such, we do not find any good reason to remand the matter to the High Court. | 1[ds]9. Heard learned counsel for the parties and perused the material on record. It may be noticed that this Court, while issuing notice vide Order dated 30.07.2007 had confined it to the question of shares of the parties in Item No.3 of Schedule A of the property.Remaining claim of the appellant regarding ½ share in item nos. 1 and 2 of Schedule A and Schedule B properties stand closed at the stage of first appeal before the High Court.28. Learned Judge V.R. Krishna Iyer, J., [as he then was a Judge of the Kerala High Court] in 1969, while deciding the case between Kurian Chacko vs. Varkey Ouseph AIR 1969 Ker 316, dealing with a similar judgment of the First Appellate Court which had been disposed of by a brief order, observed as follows:…2. An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court.29. Further following the above, there have been a series of judgments by this Court;29.1 In Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 para 15 (relevant portion of para 15) is reproduced below:15…The appellate court has jurisdiction to reverse or affirm the findings of the Trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. … while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.29.3 In 2015, this Court again in Vinod Kumar vs. Gangadhar (2015) 1 SCC 391 considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder:18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the Trial Court can be sustained or not and if so, how, and if not, why.19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 CPC mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we unable to uphold the impugned judgement of the High Court.29.4 Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjual and others vs. Shyamsundar and Others (2022) 3 SCC 90, reiterated the same view in para 8 thereof, which is reproduced hereunder:8. Section 96 of the Code of Civil Procedure, 1908 (for short, CPC) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state(a) points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the Trial Court. It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non- observance of these requirements lead to infirmity in the judgment.30. From the above settled legal principles on the duty, scope and powers of the First Appellate Court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court. The impugned judgment of the High Court is thus unsustainable in law and liable to be set aside.In the facts and circumstances of the present case, we find that the suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned Counsel for the respondent. As such, we do not find any good reason to remand the matter to the High Court. | 1 | 4,682 | 1,117 | ### 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:
is expected of him as an appellate court. 29. Further following the above, there have been a series of judgments by this Court; 29.1 In Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 para 15 (relevant portion of para 15) is reproduced below: 15…The appellate court has jurisdiction to reverse or affirm the findings of the Trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. … while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. 29.2 In H.K.N. Swami vs. Irshad Basith (2005) 10 SCC 243, this Court again reiterated the same principle in paragraph 3 of the judgment: 3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 29.3 In 2015, this Court again in Vinod Kumar vs. Gangadhar (2015) 1 SCC 391 considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder: 18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the Trial Court can be sustained or not and if so, how, and if not, why. 19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 CPC mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we unable to uphold the impugned judgement of the High Court. 29.4 Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjual and others vs. Shyamsundar and Others (2022) 3 SCC 90, reiterated the same view in para 8 thereof, which is reproduced hereunder: 8. Section 96 of the Code of Civil Procedure, 1908 (for short, CPC) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the Trial Court. It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non- observance of these requirements lead to infirmity in the judgment. 30. From the above settled legal principles on the duty, scope and powers of the First Appellate Court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court. The impugned judgment of the High Court is thus unsustainable in law and liable to be set aside. 31. The next question which arises is that where the judgment of the Appellate Court is being set aside on the ground of non- consideration of the evidence on record, the matter would normally be required to be remanded to the First Appellate Court, whether in the facts and circumstances this case requires a remand. In the facts and circumstances of the present case, we find that the suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned Counsel for the respondent. As such, we do not find any good reason to remand the matter to the High Court.
### Response:
1
### Explanation:
material on record. It may be noticed that this Court, while issuing notice vide Order dated 30.07.2007 had confined it to the question of shares of the parties in Item No.3 of Schedule A of the property.Remaining claim of the appellant regarding ½ share in item nos. 1 and 2 of Schedule A and Schedule B properties stand closed at the stage of first appeal before the High Court.28. Learned Judge V.R. Krishna Iyer, J., [as he then was a Judge of the Kerala High Court] in 1969, while deciding the case between Kurian Chacko vs. Varkey Ouseph AIR 1969 Ker 316, dealing with a similar judgment of the First Appellate Court which had been disposed of by a brief order, observed as follows:…2. An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court.29. Further following the above, there have been a series of judgments by this Court;29.1 In Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 para 15 (relevant portion of para 15) is reproduced below:15…The appellate court has jurisdiction to reverse or affirm the findings of the Trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. … while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.29.3 In 2015, this Court again in Vinod Kumar vs. Gangadhar (2015) 1 SCC 391 considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder:18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the Trial Court can be sustained or not and if so, how, and if not, why.19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 CPC mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we unable to uphold the impugned judgement of the High Court.29.4 Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjual and others vs. Shyamsundar and Others (2022) 3 SCC 90, reiterated the same view in para 8 thereof, which is reproduced hereunder:8. Section 96 of the Code of Civil Procedure, 1908 (for short, CPC) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state(a) points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the Trial Court. It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non- observance of these requirements lead to infirmity in the judgment.30. From the above settled legal principles on the duty, scope and powers of the First Appellate Court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court. The impugned judgment of the High Court is thus unsustainable in law and liable to be set aside.In the facts and circumstances of the present case, we find that the suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned Counsel for the respondent. As such, we do not find any good reason to remand the matter to the High Court.
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IFCI LTD Vs. SANJAY BEHARI | the Pension Regulations referred to aforesaid were specifically included as a benefit under VRS-2008. However, the Pension Regulations and the VRS have to be read harmoniously and, in the context of its inclusion, along with the other terms of the VRS. If we refer to the Pension Regulations, no doubt the date of retirement includes the date on which the employee voluntarily retires, but that would mean that the concerned employee would be deemed to have retired on the date he terminates his relationship with the IFCI. As to how emoluments have to be calculated, it is the average emoluments of the last ten (10) months of his service. This would naturally mean the emoluments received just prior to the termination of the relationship of employment. If we turn to the IFCI Regulations, 1974, more specifically Regulation 33, in the context of retirement under the said Regulations taking their meaning from the 1974 Regulations, it refers to an option with an employee, on attaining 50 years of age, to retire any time by giving the Corporation three months? notice in writing.30. It is not as if pension is being paid to the private respondents contrary to the terms of VRS-2008. The only thing is that, based on the calculation of average emoluments for a period of ten (10) months prior to that date when their relationship stood terminated, the pension has been calculated.31. The private respondents cannot claim parity with such people who had retired after full length of service and did not terminate their relationship. We had specifically put a question to the learned counsel for the appellant, as to what would be the position qua persons who may have retired on the same date, on attaining the age of superannuation, as the persons who sought termination of relationship under VRS-2008 with all the benefits. The answer is categorical that such persons have not been paid the benefit of revised pension for the past period.32. We must keep in mind that pension is for past services, as elucidated. However, it was not the full tenure, but the tenure was terminated by mutual consent, before it would have reached the end, on superannuation. To grant the private respondents the benefit of pay revision, retrospectively, and that to be taken into account for grant of future pension would be a bounty which cannot be given to these private respondents. The benefit is meant for persons who are actually in service, i.e., serving employees. The endeavour of learned counsel for the respondents to plead that the CTC structure was, in fact, more beneficial and, thus, the benefits were not given retrospectively, of the RBI 2007 pay-scales, made applicable from 1.11.2013, would be of not much use for the reason that even the CTC structure was introduced after the termination of relationship between IFCI and the private respondents.33. We may also deal with the inappropriate comparison with Ms. Sweety Bhalla, who was the serving employee, and opted for continuation of RBI pay-scales, in view of her special position, being visually challenged. She was the sole person in this category and thus, benefits were given retrospectively to her. She was not an optee of the VRS.34. We may also elucidate further, with reference to the P .P . Vaidya & Ors. (supra) case, that it was the case of the same parties and some other similarly placed employees, albeit with respect to special benefits and incentives. It, once again, talked about the aspect of a ‘Golden Handshake? and the delay in approaching the Court from the time when the cause of action really arose. In that context, it was observed that ?the employees who opt for voluntary retirement make a planning for future and take into consideration all its implications. At the time of giving the option, they know where they stand and they cannot get additional benefits other than mentioned in the Scheme. They prepare themselves to contract out of the jural relationship and are bound by their own acts.?35. We may also note one last aspect, which is the plea of delay. This is coupled with the commonality of some of the respondents in the P .P . Vaidya & Ors. (supra) case and the present case. In their context, more so, this is a second battle which has been waged against the IFCI, claiming to be on a different cause of action. The principle as to why no other benefit, other than under the VRS-2008 should be made available, remains the same. Even if we accept that their knowledge was derived only in 2014, when for the first time they raised the issue, the same was rejected promptly by the appellant within a few days. Continuing representation on the same issue is really not of much use. As observed earlier, there is a gap of one and a half years between the last representation and the sending of a legal notice. This, by itself, could have been fatal, but the private respondents must fail on multifarious grounds, discussed aforesaid and this aspect has been discussed only in the context of the plea being raised by IFCI/appellant.36. If the RBI pay-scales had been adopted by IFCI with retrospective effect, the private respondents could never have had a claim as their chapter was closed. Merely because, for existing employees, RBI pay- scales had been applied, albeit retrospectively, without past benefits, that cannot be a ground to start getting pension on the basis of a calculation based on those revised pay-scales, on the reasoning that pension is a continuing right for past services rendered. The very cut-off date for calculation of pension, for the private respondents, was the date of their termination of relationship, and the calculation of pension under the Pension Regulations also proceeds on the basis of the last ten (10) months? salary prior to that date.37. We are firmly of the view that the present endeavour by the private respondents is a misadventure and has to be rejected without any hesitation. | 1[ds]25. We have already discussed the terms of the Scheme, which are quite clear. The benefits under VRS-2008 are many, in terms of the financial package. Pension is only one of the items of that package, while calculating the amounts as per clause 7.2 of the Scheme. There is no ambiguity left by the propounders of the Scheme while setting out the prohibitive clause against any further compensation, in clause 9.4, or while stating that no revision shall be made in the voluntary retirement amount on account of pay revision, as per clause 9.12. The latter, in our mind, leaves no manner of doubt. The plea of the private respondents that there were certain aspects on which the Scheme was nebulous and, thus, the benefits on those accounts must be available to the respondents (Bank of India v. K. Mohandas & Ors. (2009) 4 SCALE 576 ( para 39)) is, hence, without any basis.26. Learned counsel for the private respondents did endeavour to emphasise the nature of the pension by referring to the constitution Bench judgment in D.S. Nakara v. Union of India (1983) 1 SCC 305 , in para 46, which reads asat this stage the method adopted when pay scales are revised. Revised pay scales are introduced from a certain date. All existing employees are brought on to the revised scales by adopting a theory of fitments and increments for past service. In other words, benefit of revised scale is not limited to those who enter service subsequent to the date fixed for introducing revised scales but the benefit is extended to all those in service prior to that date. This is just and fair. Now if pension as we view it, is some kind of retirement wages for past service, can it be denied to those who retired earlier, revised retirement benefits being available to future retirees only. Therefore, there is no substance in the contention that the court by its approach would be making the scheme retroactive, because it is implicit in theory of wages.It is trite to say that the aforesaid principle really applies to a retiree, and not to one who terminates his relationship with the employer earlier, often for greener pastures, and takes a complete package of various financial benefits, pension being only one of them.28. The complete substratum of the reasoning of the impugned order, and for that matter, the arguments of the learned counsel for the private respondents, supporting the reasoning, is based on the presumption that VRS-2001 (in operation from 14.12.2000 to 15.1.2001) was an open ended scheme in character. This, in our view, is a fallacious approach for the reason that every scheme for voluntary retirement really has a time frame. Not only that, VRS-2001 was followed by a fresh Scheme in 2003-2004, and thereafter in 2008. The terms of the Schemes were different. While the 2001 scheme initially, in clause 8.7, provided for a full and final settlement of claims, it is as per a clarification issued on 4.1.2001 that the benefit was extended, to provide for future pay revisions. This was so far as the 2001 Scheme is concerned. Even the 2003-2004 Scheme did not provide such clarification, and the endeavour to take up this issue, through the resolution of the Rajya Sabha Committee was not successful as the IFCI stuck by its original plan. VRS-2008 left no manner of doubt, and possibly, the IFCI was more cautious to, again and again, emphasise through different clauses that it would not be called upon to incur any other financial liability.29. No doubt the Pension Regulations referred to aforesaid were specifically included as a benefit under VRS-2008. However, the Pension Regulations and the VRS have to be read harmoniously and, in the context of its inclusion, along with the other terms of the VRS. If we refer to the Pension Regulations, no doubt the date of retirement includes the date on which the employee voluntarily retires, but that would mean that the concerned employee would be deemed to have retired on the date he terminates his relationship with the IFCI. As to how emoluments have to be calculated, it is the average emoluments of the last ten (10) months of his service. This would naturally mean the emoluments received just prior to the termination of the relationship of employment. If we turn to the IFCI Regulations, 1974, more specifically Regulation 33, in the context of retirement under the said Regulations taking their meaning from the 1974 Regulations, it refers to an option with an employee, on attaining 50 years of age, to retire any time by giving the Corporation three months? notice in writing.30. It is not as if pension is being paid to the private respondents contrary to the terms of VRS-2008. The only thing is that, based on the calculation of average emoluments for a period of ten (10) months prior to that date when their relationship stood terminated, the pension has been calculated.31. The private respondents cannot claim parity with such people who had retired after full length of service and did not terminate their relationship. We had specifically put a question to the learned counsel for the appellant, as to what would be the position qua persons who may have retired on the same date, on attaining the age of superannuation, as the persons who sought termination of relationship under VRS-2008 with all the benefits. The answer is categorical that such persons have not been paid the benefit of revised pension for the past period.32. We must keep in mind that pension is for past services, as elucidated. However, it was not the full tenure, but the tenure was terminated by mutual consent, before it would have reached the end, on superannuation. To grant the private respondents the benefit of pay revision, retrospectively, and that to be taken into account for grant of future pension would be a bounty which cannot be given to these private respondents. The benefit is meant for persons who are actually in service, i.e., serving employees. The endeavour of learned counsel for the respondents to plead that the CTC structure was, in fact, more beneficial and, thus, the benefits were not given retrospectively, of the RBI 2007 pay-scales, made applicable from 1.11.2013, would be of not much use for the reason that even the CTC structure was introduced after the termination of relationship between IFCI and the private respondents.33. We may also deal with the inappropriate comparison with Ms. Sweety Bhalla, who was the serving employee, and opted for continuation of RBI pay-scales, in view of her special position, being visually challenged. She was the sole person in this category and thus, benefits were given retrospectively to her. She was not an optee of the VRS.34. We may also elucidate further, with reference to the P .P . Vaidya & Ors. (supra)case, that it was the case of the same parties and some other similarly placed employees, albeit with respect to special benefits and incentives. It, once again, talked about the aspect of a ‘Golden Handshake? and the delay in approaching the Court from the time when the cause of action really arose. In that context, it was observed that ?the employees who opt for voluntary retirement make a planning for future and take into consideration all its implications. At the time of giving the option, they know where they stand and they cannot get additional benefits other than mentioned in the Scheme. They prepare themselves to contract out of the jural relationship and are bound by their own acts.?35. We may also note one last aspect, which is the plea of delay. This is coupled with the commonality of some of the respondents in the P .P . Vaidya & Ors. (supra) case and the present case. In their context, more so, this is a second battle which has been waged against the IFCI, claiming to be on a different cause of action. The principle as to why no other benefit, other than under the VRS-2008 should be made available, remains the same. Even if we accept that their knowledge was derived only in 2014, when for the first time they raised the issue, the same was rejected promptly by the appellant within a few days. Continuing representation on the same issue is really not of much use. As observed earlier, there is a gap of one and a half years between the last representation and the sending of a legal notice. This, by itself, could have been fatal, but the private respondents must fail on multifarious grounds, discussed aforesaid and this aspect has been discussed only in the context of the plea being raised by IFCI/appellant.36. If the RBI pay-scales had been adopted by IFCI with retrospective effect, the private respondents could never have had a claim as their chapter was closed. Merely because, for existing employees, RBI pay- scales had been applied, albeit retrospectively, without past benefits, that cannot be a ground to start getting pension on the basis of a calculation based on those revised pay-scales, on the reasoning that pension is a continuing right for past services rendered. The very cut-off date for calculation of pension, for the private respondents, was the date of their termination of relationship, and the calculation of pension under the Pension Regulations also proceeds on the basis of the last ten (10) months? salary prior to that date.37. We are firmly of the view that the present endeavour by the private respondents is a misadventure and has to be rejected without any hesitation.The principle ground for assailing the impugned order is that any scheme for voluntary retirement is a package by itself. One cannot, thus, look to other voluntary retirement schemes, or other rules and regulations for the said purpose.22. In our view, there can be no quibble with this fundamental principle. In fact, we had the occasion to recently propound the legal position in this behalf, in National Insurance Special Voluntary Retired/Retired Employees Association & Anr. v. United India Insurance Co. Ltd. & Anr (2018) 18 SCC 186. The view taken is that it is not appropriate to add or subtract from the Scheme, nor can any concessions be given contrary to the Scheme, or if they are not provided for under the Scheme. What is to be seen are the clauses of the scheme under which voluntary retirement has been taken and the terms of the scheme must be strictly followed. This Court has observed asWe have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS-2004 Scheme have to be strictly adhered to, and the very objective of having such schemes would be defeated, if parts of other schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the schemes of voluntary retirement, and that alone would be admissible.20. The issue which arose in Manojbhai N. Shah [Manojbhai N. Shah v. Union of India, (2015) 4 SCC 482 : (2015) 2 SCC (L&S) 55] was qua the revision of pay, with retrospective effect. That was the only issue. That issue was decided against the beneficiaries of the SVRS-2004 Scheme. If there are certain observations made by that Bench while deciding so, qua aspects which are not forming the subject- matter of that dispute, the same cannot be read to amount to grant of relief/benefits, contrary to the terms of the Scheme, and that too, in the absence of any specific directions.;. ….22. It is, thus, abundantly clear that nothing more would be given than what is stated in the scheme, and for that matter, nothing less. If the employees avail of the benefit of such a scheme with their eyes open, they cannot look here and there, under different schemes, to see what other benefits can be achieved by them, by seeking to take advantage of the more beneficial schemes, while simultaneously enjoying the more beneficial aspects of the SVRS-2004 Scheme.In the present case, VRS-2008 has received consideration right till the Supreme Court and attained finality on the issue of benefits and incentives sought to be claimed beyond the Scheme, in P .P . Vaidya & Ors. (supra) case. Interestingly, some of the respondents, apparently, are common between that case and the present case. Thus, not having succeeded on one aspect, another aspect is now sought to be agitated. | 1 | 6,053 | 2,353 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the Pension Regulations referred to aforesaid were specifically included as a benefit under VRS-2008. However, the Pension Regulations and the VRS have to be read harmoniously and, in the context of its inclusion, along with the other terms of the VRS. If we refer to the Pension Regulations, no doubt the date of retirement includes the date on which the employee voluntarily retires, but that would mean that the concerned employee would be deemed to have retired on the date he terminates his relationship with the IFCI. As to how emoluments have to be calculated, it is the average emoluments of the last ten (10) months of his service. This would naturally mean the emoluments received just prior to the termination of the relationship of employment. If we turn to the IFCI Regulations, 1974, more specifically Regulation 33, in the context of retirement under the said Regulations taking their meaning from the 1974 Regulations, it refers to an option with an employee, on attaining 50 years of age, to retire any time by giving the Corporation three months? notice in writing.30. It is not as if pension is being paid to the private respondents contrary to the terms of VRS-2008. The only thing is that, based on the calculation of average emoluments for a period of ten (10) months prior to that date when their relationship stood terminated, the pension has been calculated.31. The private respondents cannot claim parity with such people who had retired after full length of service and did not terminate their relationship. We had specifically put a question to the learned counsel for the appellant, as to what would be the position qua persons who may have retired on the same date, on attaining the age of superannuation, as the persons who sought termination of relationship under VRS-2008 with all the benefits. The answer is categorical that such persons have not been paid the benefit of revised pension for the past period.32. We must keep in mind that pension is for past services, as elucidated. However, it was not the full tenure, but the tenure was terminated by mutual consent, before it would have reached the end, on superannuation. To grant the private respondents the benefit of pay revision, retrospectively, and that to be taken into account for grant of future pension would be a bounty which cannot be given to these private respondents. The benefit is meant for persons who are actually in service, i.e., serving employees. The endeavour of learned counsel for the respondents to plead that the CTC structure was, in fact, more beneficial and, thus, the benefits were not given retrospectively, of the RBI 2007 pay-scales, made applicable from 1.11.2013, would be of not much use for the reason that even the CTC structure was introduced after the termination of relationship between IFCI and the private respondents.33. We may also deal with the inappropriate comparison with Ms. Sweety Bhalla, who was the serving employee, and opted for continuation of RBI pay-scales, in view of her special position, being visually challenged. She was the sole person in this category and thus, benefits were given retrospectively to her. She was not an optee of the VRS.34. We may also elucidate further, with reference to the P .P . Vaidya & Ors. (supra) case, that it was the case of the same parties and some other similarly placed employees, albeit with respect to special benefits and incentives. It, once again, talked about the aspect of a ‘Golden Handshake? and the delay in approaching the Court from the time when the cause of action really arose. In that context, it was observed that ?the employees who opt for voluntary retirement make a planning for future and take into consideration all its implications. At the time of giving the option, they know where they stand and they cannot get additional benefits other than mentioned in the Scheme. They prepare themselves to contract out of the jural relationship and are bound by their own acts.?35. We may also note one last aspect, which is the plea of delay. This is coupled with the commonality of some of the respondents in the P .P . Vaidya & Ors. (supra) case and the present case. In their context, more so, this is a second battle which has been waged against the IFCI, claiming to be on a different cause of action. The principle as to why no other benefit, other than under the VRS-2008 should be made available, remains the same. Even if we accept that their knowledge was derived only in 2014, when for the first time they raised the issue, the same was rejected promptly by the appellant within a few days. Continuing representation on the same issue is really not of much use. As observed earlier, there is a gap of one and a half years between the last representation and the sending of a legal notice. This, by itself, could have been fatal, but the private respondents must fail on multifarious grounds, discussed aforesaid and this aspect has been discussed only in the context of the plea being raised by IFCI/appellant.36. If the RBI pay-scales had been adopted by IFCI with retrospective effect, the private respondents could never have had a claim as their chapter was closed. Merely because, for existing employees, RBI pay- scales had been applied, albeit retrospectively, without past benefits, that cannot be a ground to start getting pension on the basis of a calculation based on those revised pay-scales, on the reasoning that pension is a continuing right for past services rendered. The very cut-off date for calculation of pension, for the private respondents, was the date of their termination of relationship, and the calculation of pension under the Pension Regulations also proceeds on the basis of the last ten (10) months? salary prior to that date.37. We are firmly of the view that the present endeavour by the private respondents is a misadventure and has to be rejected without any hesitation.
### Response:
1
### Explanation:
Ms. Sweety Bhalla, who was the serving employee, and opted for continuation of RBI pay-scales, in view of her special position, being visually challenged. She was the sole person in this category and thus, benefits were given retrospectively to her. She was not an optee of the VRS.34. We may also elucidate further, with reference to the P .P . Vaidya & Ors. (supra)case, that it was the case of the same parties and some other similarly placed employees, albeit with respect to special benefits and incentives. It, once again, talked about the aspect of a ‘Golden Handshake? and the delay in approaching the Court from the time when the cause of action really arose. In that context, it was observed that ?the employees who opt for voluntary retirement make a planning for future and take into consideration all its implications. At the time of giving the option, they know where they stand and they cannot get additional benefits other than mentioned in the Scheme. They prepare themselves to contract out of the jural relationship and are bound by their own acts.?35. We may also note one last aspect, which is the plea of delay. This is coupled with the commonality of some of the respondents in the P .P . Vaidya & Ors. (supra) case and the present case. In their context, more so, this is a second battle which has been waged against the IFCI, claiming to be on a different cause of action. The principle as to why no other benefit, other than under the VRS-2008 should be made available, remains the same. Even if we accept that their knowledge was derived only in 2014, when for the first time they raised the issue, the same was rejected promptly by the appellant within a few days. Continuing representation on the same issue is really not of much use. As observed earlier, there is a gap of one and a half years between the last representation and the sending of a legal notice. This, by itself, could have been fatal, but the private respondents must fail on multifarious grounds, discussed aforesaid and this aspect has been discussed only in the context of the plea being raised by IFCI/appellant.36. If the RBI pay-scales had been adopted by IFCI with retrospective effect, the private respondents could never have had a claim as their chapter was closed. Merely because, for existing employees, RBI pay- scales had been applied, albeit retrospectively, without past benefits, that cannot be a ground to start getting pension on the basis of a calculation based on those revised pay-scales, on the reasoning that pension is a continuing right for past services rendered. The very cut-off date for calculation of pension, for the private respondents, was the date of their termination of relationship, and the calculation of pension under the Pension Regulations also proceeds on the basis of the last ten (10) months? salary prior to that date.37. We are firmly of the view that the present endeavour by the private respondents is a misadventure and has to be rejected without any hesitation.The principle ground for assailing the impugned order is that any scheme for voluntary retirement is a package by itself. One cannot, thus, look to other voluntary retirement schemes, or other rules and regulations for the said purpose.22. In our view, there can be no quibble with this fundamental principle. In fact, we had the occasion to recently propound the legal position in this behalf, in National Insurance Special Voluntary Retired/Retired Employees Association & Anr. v. United India Insurance Co. Ltd. & Anr (2018) 18 SCC 186. The view taken is that it is not appropriate to add or subtract from the Scheme, nor can any concessions be given contrary to the Scheme, or if they are not provided for under the Scheme. What is to be seen are the clauses of the scheme under which voluntary retirement has been taken and the terms of the scheme must be strictly followed. This Court has observed asWe have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS-2004 Scheme have to be strictly adhered to, and the very objective of having such schemes would be defeated, if parts of other schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the schemes of voluntary retirement, and that alone would be admissible.20. The issue which arose in Manojbhai N. Shah [Manojbhai N. Shah v. Union of India, (2015) 4 SCC 482 : (2015) 2 SCC (L&S) 55] was qua the revision of pay, with retrospective effect. That was the only issue. That issue was decided against the beneficiaries of the SVRS-2004 Scheme. If there are certain observations made by that Bench while deciding so, qua aspects which are not forming the subject- matter of that dispute, the same cannot be read to amount to grant of relief/benefits, contrary to the terms of the Scheme, and that too, in the absence of any specific directions.;. ….22. It is, thus, abundantly clear that nothing more would be given than what is stated in the scheme, and for that matter, nothing less. If the employees avail of the benefit of such a scheme with their eyes open, they cannot look here and there, under different schemes, to see what other benefits can be achieved by them, by seeking to take advantage of the more beneficial schemes, while simultaneously enjoying the more beneficial aspects of the SVRS-2004 Scheme.In the present case, VRS-2008 has received consideration right till the Supreme Court and attained finality on the issue of benefits and incentives sought to be claimed beyond the Scheme, in P .P . Vaidya & Ors. (supra) case. Interestingly, some of the respondents, apparently, are common between that case and the present case. Thus, not having succeeded on one aspect, another aspect is now sought to be agitated.
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Maktul Vs. Mst. Manbhari and Ors | true position under the Hindu law in regard to the character of ancestral property are emphatic and unambiguous and this statement has been made while dealing with the case governed by the customary law of the Punjab. This statement of the law was cited with aproval and as pertinent by Sir Shadi Lal when he delivered the judgment of the Board in 64 Ind App 250 : (AIR 1937 PC 233 ) (B). The learned judge has then added that "35 Ind App 206 (PC) (F), however, related to the property which came from male collaterals and not from the maternal grandfather and it was governed by the custom of the Punjab; but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships". The effect of these observations would clearly appear to be that the test laid down in 35 Ind App 206 (PC) (F) would apply as much to the Hindu law as to the customary law of the Punjab. In our opinion, these observations make by Sir Shadi Lal are entitled to respect and have been rightly relied upon by Mahajan J., as he then was, in the last Full Bench case ILR (1950) Punj 1 : (AIR 1949 EP 109) (FB) (E), to which we have already referred. We may add that it may not be technically correct to say that these observations overrule the earlier Full Bench decision of the Punjab High Court on the point. We entertain no doubt that, if the relevant observations of Lord Collins in 35 Ind App 206 (PC) (F) had been considered in the second Full Bench decision, they would have hesitated to rely on the doctrine of stare decisis in support of their final decision.9. There is one more point which still remains to be considered. Having regard to the principle of stare decisis, would it be right to hold that the view expressed by the High Court of Punjab as early as 1895 was erroneous? The principle of stare decisis is thus stated in Halsburys Laws of England, Second Edition*:*Halsburys Vol. XIX, p. 257, para. 557:"Apart from any question as to the Courts being of co-ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the supreme appellate Court will not shrink from overruling a dicisioon, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake".The same doctrine is thus explained in Corpus Juris Secundum*:*Corpus Juris Secundum, page 302, para 187.Corpus Juris Secundum, page 322, para 193."Under the stare decisis rule a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts it is not universally applicable".The Corpus Juris Secundum, however, adds a rider that"previous decisions should not be followed to the extent that grievous wrong may result; and accordingly the courts ordinarly will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result".10. In the present case it is difficult to say that the doctrine of stare decisis really applies because the correctness of the first Full Bench decision has been challenged in the Punjab High Court from time to time and in fact the said decision has been reversed in 1950. Besides, in 1908, the Privy Council made emphatic observations in 35 Ind App 206 (PC) (F) which considerably impaired the validity of the first Full Bench decision; so it would be difficult to say that the decision of the first Full Bench has been consistently followed by the community since 1895. It cannot also be said that reversal of the said decision shakes any title or contract. The only effect of the said decision was to confer upon the son of the person who inherited the property from his maternal grandfather right to challenge his alienation of the said property. It is doubtful if such a right can be regarded as the right in property. It merely gives the son an option either to accept the transaction or to avoid it. It cannot be said today that any pending actions would be disturbed because this right has already been taken away by the Full Bench in 1950. In this connection, it may also be relevant to consider another aspect of this matter. If it is held that the property inherited from maternal grandfather is not ancestral property, then it would tend to make the titles of the alienees of such property more secure.Besides, we are satisfied that the decision of the First Full Bench is wholly unsustainable as a decision on the point of the relevant custom. We are, therefore, inclined to take the view that the doctrine of stare decisis is inapplicable and should present no obstacle in holding that the earlier cases of the Full Bench of the Punjab High Court were not correctly decided. | 0[ds]10. In the present case it is difficult to say that the doctrine of stare decisis really applies because the correctness of the first Full Bench decision has been challenged in the Punjab High Court from time to time and in fact the said decision has been reversed in 1950. Besides, in 1908, the Privy Council made emphatic observations in 35 Ind App 206 (PC) (F) which considerably impaired the validity of the first Full Bench decision; so it would be difficult to say that the decision of the first Full Bench has been consistently followed by the community sinceIt cannot also be said that reversal of the said decision shakes any title or contract. The only effect of the said decision was to confer upon the son of the person who inherited the property from his maternal grandfather right to challenge his alienation of the said property. It is doubtful if such a right can be regarded as the right in property. It merely gives the son an option either to accept the transaction or to avoid it. It cannot be said today that any pending actions would be disturbed because this right has already been taken away by the Full Bench in 1950. In this connection, it may also be relevant to consider another aspect of this matter. If it is held that the property inherited from maternal grandfather is not ancestral property, then it would tend to make the titles of the alienees of such property more secure.Besides, we are satisfied that the decision of the First Full Bench is wholly unsustainable as a decision on the point of the relevant custom. We are, therefore, inclined to take the view that the doctrine of stare decisis is inapplicable and should present no obstacle in holding that the earlier cases of the Full Bench of the Punjab High Court were not correctly decided. | 0 | 4,409 | 343 | ### 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:
true position under the Hindu law in regard to the character of ancestral property are emphatic and unambiguous and this statement has been made while dealing with the case governed by the customary law of the Punjab. This statement of the law was cited with aproval and as pertinent by Sir Shadi Lal when he delivered the judgment of the Board in 64 Ind App 250 : (AIR 1937 PC 233 ) (B). The learned judge has then added that "35 Ind App 206 (PC) (F), however, related to the property which came from male collaterals and not from the maternal grandfather and it was governed by the custom of the Punjab; but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships". The effect of these observations would clearly appear to be that the test laid down in 35 Ind App 206 (PC) (F) would apply as much to the Hindu law as to the customary law of the Punjab. In our opinion, these observations make by Sir Shadi Lal are entitled to respect and have been rightly relied upon by Mahajan J., as he then was, in the last Full Bench case ILR (1950) Punj 1 : (AIR 1949 EP 109) (FB) (E), to which we have already referred. We may add that it may not be technically correct to say that these observations overrule the earlier Full Bench decision of the Punjab High Court on the point. We entertain no doubt that, if the relevant observations of Lord Collins in 35 Ind App 206 (PC) (F) had been considered in the second Full Bench decision, they would have hesitated to rely on the doctrine of stare decisis in support of their final decision.9. There is one more point which still remains to be considered. Having regard to the principle of stare decisis, would it be right to hold that the view expressed by the High Court of Punjab as early as 1895 was erroneous? The principle of stare decisis is thus stated in Halsburys Laws of England, Second Edition*:*Halsburys Vol. XIX, p. 257, para. 557:"Apart from any question as to the Courts being of co-ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the supreme appellate Court will not shrink from overruling a dicisioon, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake".The same doctrine is thus explained in Corpus Juris Secundum*:*Corpus Juris Secundum, page 302, para 187.Corpus Juris Secundum, page 322, para 193."Under the stare decisis rule a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts it is not universally applicable".The Corpus Juris Secundum, however, adds a rider that"previous decisions should not be followed to the extent that grievous wrong may result; and accordingly the courts ordinarly will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result".10. In the present case it is difficult to say that the doctrine of stare decisis really applies because the correctness of the first Full Bench decision has been challenged in the Punjab High Court from time to time and in fact the said decision has been reversed in 1950. Besides, in 1908, the Privy Council made emphatic observations in 35 Ind App 206 (PC) (F) which considerably impaired the validity of the first Full Bench decision; so it would be difficult to say that the decision of the first Full Bench has been consistently followed by the community since 1895. It cannot also be said that reversal of the said decision shakes any title or contract. The only effect of the said decision was to confer upon the son of the person who inherited the property from his maternal grandfather right to challenge his alienation of the said property. It is doubtful if such a right can be regarded as the right in property. It merely gives the son an option either to accept the transaction or to avoid it. It cannot be said today that any pending actions would be disturbed because this right has already been taken away by the Full Bench in 1950. In this connection, it may also be relevant to consider another aspect of this matter. If it is held that the property inherited from maternal grandfather is not ancestral property, then it would tend to make the titles of the alienees of such property more secure.Besides, we are satisfied that the decision of the First Full Bench is wholly unsustainable as a decision on the point of the relevant custom. We are, therefore, inclined to take the view that the doctrine of stare decisis is inapplicable and should present no obstacle in holding that the earlier cases of the Full Bench of the Punjab High Court were not correctly decided.
### Response:
0
### Explanation:
10. In the present case it is difficult to say that the doctrine of stare decisis really applies because the correctness of the first Full Bench decision has been challenged in the Punjab High Court from time to time and in fact the said decision has been reversed in 1950. Besides, in 1908, the Privy Council made emphatic observations in 35 Ind App 206 (PC) (F) which considerably impaired the validity of the first Full Bench decision; so it would be difficult to say that the decision of the first Full Bench has been consistently followed by the community sinceIt cannot also be said that reversal of the said decision shakes any title or contract. The only effect of the said decision was to confer upon the son of the person who inherited the property from his maternal grandfather right to challenge his alienation of the said property. It is doubtful if such a right can be regarded as the right in property. It merely gives the son an option either to accept the transaction or to avoid it. It cannot be said today that any pending actions would be disturbed because this right has already been taken away by the Full Bench in 1950. In this connection, it may also be relevant to consider another aspect of this matter. If it is held that the property inherited from maternal grandfather is not ancestral property, then it would tend to make the titles of the alienees of such property more secure.Besides, we are satisfied that the decision of the First Full Bench is wholly unsustainable as a decision on the point of the relevant custom. We are, therefore, inclined to take the view that the doctrine of stare decisis is inapplicable and should present no obstacle in holding that the earlier cases of the Full Bench of the Punjab High Court were not correctly decided.
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Allenbury Engineers Pvt. Ltd Vs. Ramkrishna Dalmia and Ors | 10 would not be of assistance as the question there discussed was not as to meaning of the word manufacture, but whether the premises in question were industrial hereditaments within the meaning of S. 3 of the Rating and Valuation (Appointment) Act, 1928. Likewise, decision given by courts on the word manufacture occurring in different statutes would not be of assistance where the statute concerned gives an artificial meaning or a special definition.11. Bearing in mind the connotation of the word manufacture as understood in the decisions above-cited, we have to ascertain whether the appellant-company could be said to be carrying on operations in the premises in question which could properly be called manufacturing operations. On this question, the evidence on record is general in character and almost meagre in quantum. With Choradia, who was the managing director of the Bharat Insurance Co. between 1950 to 1954 and who used to reside in Delhi where the company had its headquarters, but occasionally used to visit its branch in Bombay, deposed that after the premises in question were purchased in 1953 by his company from Sir Shapurji Bharucha Mills, he visited them and found them to comprise an open land with sheds and a godown. There were lying there army automobiles, jeeps etc., but he did not notice at that time any manufacturing process going on. He again visited the premises in 1954 when also he found no manufacturing operations going on. Wit. V. G. Kannan was an accountant in Allenbury and Co. Ltd. He used to go to the premises in 1950 and 1951 to pay wages to the workmen engaged there by his company. The premises had a workshop, a godown and a small office and the rest was open land. The company wound up its business in 1950, but there were lying in the premises steel racks belonging to his company, to inspect which he had to go there on several occasions.He also said that he did not see any manufacturing processes going on except that the workshop was used for repairing the disposal vehicles lying stored there. This was the position till July-August 1954 and till then there was no change in the user of the premises.Wit. J. P. Jain examined by the appellant-company was the Central Manager of the Bombay branch of Allenbury and Co. from 1946 to 1950.Thereafter he became the managing director of the appellant-company. According to him, Allenbury and Co. Ltd. had in 1948 purchased disposal vehicles which were stored for sale in the premises in question. The vehicles were in a damaged condition when they were purchased. In some cases chassis were missing or they were bent or broken; most of the parts were broken and missing. These used to be repaired and then sold. The company had put up a workshop where these vehicles were repaired, reconditioned and painted before they were sold. The repairs, according to him, involved in some cases making of new bodies and new parts. For that purpose, the appellant company had to have in the workshop lathes, drill machines, welders etc. and had employed some 200 to 250 workmen. When the appellant-company took over the business of Allenbury and Co. Ltd. in 1950-51, there were in all 189 vehicles of different types in the suit premises. The working, he said, of overhauling, reconditioning and repairing these vehicles went on until 1957 when reconditioning of vehicles stopped presumably because the vehicles were sold out. The premises had on them a servicing station also with a trench in the centre for washing the vehicles and were spare parts needed for repairs used to be stored. There was also an office and a store room where spare parts, oils and other stores purchased locally were kept. He denied that the premises were used only for repairing the vehicles.12. Besides his oral testimony, there is one letter on record written by this witness to Allenbury and Co. Ltd., dated November 21, 1950 giving details of stocks lying on these premises when that companys business was taken over by the appellant-company. The schedule to this letter gives particulars of these stocks, viz., 182 vehicles of different types, stores, accessories, spare parts purchased from the market or the Disposal Directorate, tools and other workshop equipment and three cars under repairs. The schedule shows that the premises were used till then for storing the Disposal Vehicles together with spare parts etc. acquired along with them or purchased from the market for repairing and reconditioning and making them fit for resale. There is no evidence except the bare word of wit. Jain that parts such as chassis and bodies etc. were actually manufactured and replaced for the old. No books of account or long books showing the work carried on the premises or other documents were produced which would throw light on the activities carried on the premises. Even if the evidence of Jain were accepted in toto, and we were to find that some spare parts were being manufactured for repairing or reconditioning the vehicles, the dominant purpose of the lease would still have to be regarded as one for storage and resale of the vehicles and not for manufacturing purposes. Manufacturing of spare parts would then be merely incidental to the main purpose of disposal of these vehicles as without repairing or reconditioning them, such disposal could hardly have been possible. In our opinion, the appellants failed to establish that the dominant purpose of the lease was manufacturing purpose. In that view, the appellants could not have challenged the legality of the notice. The High Court, therefore, was right in the conclusion it arrived at and no reason has been shown justifying our interference with it. That being the position, it is not necessary to go into the question whether S. 107 has any impact on S. 106 of the Transfer of Property Act, a question which the Division Bench, while referring this appeal to a larger Bench, thought the appeal raised.13. | 0[ds]The working, he said, of overhauling, reconditioning and repairing these vehicles went on until 1957 when reconditioning of vehicles stopped presumably because the vehicles were sold out. The premises had on them a servicing station also with a trench in the centre for washing the vehicles and were spare parts needed for repairs used to be stored. There was also an office and a store room where spare parts, oils and other stores purchased locally were kept. He denied that the premises were used only for repairing the vehicles.Besides his oral testimony, there is one letter on record written by this witness to Allenbury and Co. Ltd., dated November 21, 1950 giving details of stocks lying on these premises when that companys business was taken over by the appellant-company. The schedule to this letter gives particulars of these stocks, viz., 182 vehicles of different types, stores, accessories, spare parts purchased from the market or the Disposal Directorate, tools and other workshop equipment and three cars under repairs. The schedule shows that the premises were used till then for storing the Disposal Vehicles together with spare parts etc. acquired along with them or purchased from the market for repairing and reconditioning and making them fit for resale. There is no evidence except the bare word of wit. Jain that parts such as chassis and bodies etc. were actually manufactured and replaced for the old. No books of account or long books showing the work carried on the premises or other documents were produced which would throw light on the activities carried on the premises. Even if the evidence of Jain were accepted in toto, and we were to find that some spare parts were being manufactured for repairing or reconditioning the vehicles, the dominant purpose of the lease would still have to be regarded as one for storage and resale of the vehicles and not for manufacturing purposes. Manufacturing of spare parts would then be merely incidental to the main purpose of disposal of these vehicles as without repairing or reconditioning them, such disposal could hardly have been possible. In our opinion, the appellants failed to establish that the dominant purpose of the lease was manufacturing purpose. In that view, the appellants could not have challenged the legality of the notice. The High Court, therefore, was right in the conclusion it arrived at and no reason has been shown justifying our interference with it. That being the position, it is not necessary to go into the question whether S. 107 has any impact on S. 106 of the Transfer of Property Act, a question which the Division Bench, while referring this appeal to a larger Bench, thought the appeal raised. | 0 | 3,471 | 494 | ### 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:
10 would not be of assistance as the question there discussed was not as to meaning of the word manufacture, but whether the premises in question were industrial hereditaments within the meaning of S. 3 of the Rating and Valuation (Appointment) Act, 1928. Likewise, decision given by courts on the word manufacture occurring in different statutes would not be of assistance where the statute concerned gives an artificial meaning or a special definition.11. Bearing in mind the connotation of the word manufacture as understood in the decisions above-cited, we have to ascertain whether the appellant-company could be said to be carrying on operations in the premises in question which could properly be called manufacturing operations. On this question, the evidence on record is general in character and almost meagre in quantum. With Choradia, who was the managing director of the Bharat Insurance Co. between 1950 to 1954 and who used to reside in Delhi where the company had its headquarters, but occasionally used to visit its branch in Bombay, deposed that after the premises in question were purchased in 1953 by his company from Sir Shapurji Bharucha Mills, he visited them and found them to comprise an open land with sheds and a godown. There were lying there army automobiles, jeeps etc., but he did not notice at that time any manufacturing process going on. He again visited the premises in 1954 when also he found no manufacturing operations going on. Wit. V. G. Kannan was an accountant in Allenbury and Co. Ltd. He used to go to the premises in 1950 and 1951 to pay wages to the workmen engaged there by his company. The premises had a workshop, a godown and a small office and the rest was open land. The company wound up its business in 1950, but there were lying in the premises steel racks belonging to his company, to inspect which he had to go there on several occasions.He also said that he did not see any manufacturing processes going on except that the workshop was used for repairing the disposal vehicles lying stored there. This was the position till July-August 1954 and till then there was no change in the user of the premises.Wit. J. P. Jain examined by the appellant-company was the Central Manager of the Bombay branch of Allenbury and Co. from 1946 to 1950.Thereafter he became the managing director of the appellant-company. According to him, Allenbury and Co. Ltd. had in 1948 purchased disposal vehicles which were stored for sale in the premises in question. The vehicles were in a damaged condition when they were purchased. In some cases chassis were missing or they were bent or broken; most of the parts were broken and missing. These used to be repaired and then sold. The company had put up a workshop where these vehicles were repaired, reconditioned and painted before they were sold. The repairs, according to him, involved in some cases making of new bodies and new parts. For that purpose, the appellant company had to have in the workshop lathes, drill machines, welders etc. and had employed some 200 to 250 workmen. When the appellant-company took over the business of Allenbury and Co. Ltd. in 1950-51, there were in all 189 vehicles of different types in the suit premises. The working, he said, of overhauling, reconditioning and repairing these vehicles went on until 1957 when reconditioning of vehicles stopped presumably because the vehicles were sold out. The premises had on them a servicing station also with a trench in the centre for washing the vehicles and were spare parts needed for repairs used to be stored. There was also an office and a store room where spare parts, oils and other stores purchased locally were kept. He denied that the premises were used only for repairing the vehicles.12. Besides his oral testimony, there is one letter on record written by this witness to Allenbury and Co. Ltd., dated November 21, 1950 giving details of stocks lying on these premises when that companys business was taken over by the appellant-company. The schedule to this letter gives particulars of these stocks, viz., 182 vehicles of different types, stores, accessories, spare parts purchased from the market or the Disposal Directorate, tools and other workshop equipment and three cars under repairs. The schedule shows that the premises were used till then for storing the Disposal Vehicles together with spare parts etc. acquired along with them or purchased from the market for repairing and reconditioning and making them fit for resale. There is no evidence except the bare word of wit. Jain that parts such as chassis and bodies etc. were actually manufactured and replaced for the old. No books of account or long books showing the work carried on the premises or other documents were produced which would throw light on the activities carried on the premises. Even if the evidence of Jain were accepted in toto, and we were to find that some spare parts were being manufactured for repairing or reconditioning the vehicles, the dominant purpose of the lease would still have to be regarded as one for storage and resale of the vehicles and not for manufacturing purposes. Manufacturing of spare parts would then be merely incidental to the main purpose of disposal of these vehicles as without repairing or reconditioning them, such disposal could hardly have been possible. In our opinion, the appellants failed to establish that the dominant purpose of the lease was manufacturing purpose. In that view, the appellants could not have challenged the legality of the notice. The High Court, therefore, was right in the conclusion it arrived at and no reason has been shown justifying our interference with it. That being the position, it is not necessary to go into the question whether S. 107 has any impact on S. 106 of the Transfer of Property Act, a question which the Division Bench, while referring this appeal to a larger Bench, thought the appeal raised.13.
### Response:
0
### Explanation:
The working, he said, of overhauling, reconditioning and repairing these vehicles went on until 1957 when reconditioning of vehicles stopped presumably because the vehicles were sold out. The premises had on them a servicing station also with a trench in the centre for washing the vehicles and were spare parts needed for repairs used to be stored. There was also an office and a store room where spare parts, oils and other stores purchased locally were kept. He denied that the premises were used only for repairing the vehicles.Besides his oral testimony, there is one letter on record written by this witness to Allenbury and Co. Ltd., dated November 21, 1950 giving details of stocks lying on these premises when that companys business was taken over by the appellant-company. The schedule to this letter gives particulars of these stocks, viz., 182 vehicles of different types, stores, accessories, spare parts purchased from the market or the Disposal Directorate, tools and other workshop equipment and three cars under repairs. The schedule shows that the premises were used till then for storing the Disposal Vehicles together with spare parts etc. acquired along with them or purchased from the market for repairing and reconditioning and making them fit for resale. There is no evidence except the bare word of wit. Jain that parts such as chassis and bodies etc. were actually manufactured and replaced for the old. No books of account or long books showing the work carried on the premises or other documents were produced which would throw light on the activities carried on the premises. Even if the evidence of Jain were accepted in toto, and we were to find that some spare parts were being manufactured for repairing or reconditioning the vehicles, the dominant purpose of the lease would still have to be regarded as one for storage and resale of the vehicles and not for manufacturing purposes. Manufacturing of spare parts would then be merely incidental to the main purpose of disposal of these vehicles as without repairing or reconditioning them, such disposal could hardly have been possible. In our opinion, the appellants failed to establish that the dominant purpose of the lease was manufacturing purpose. In that view, the appellants could not have challenged the legality of the notice. The High Court, therefore, was right in the conclusion it arrived at and no reason has been shown justifying our interference with it. That being the position, it is not necessary to go into the question whether S. 107 has any impact on S. 106 of the Transfer of Property Act, a question which the Division Bench, while referring this appeal to a larger Bench, thought the appeal raised.
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M/S L.N.Gadodia & Sons Vs. Regional Provident Fund Commr | the two private limited companies. The two companies have seen to it that on record each of the two entities engage less than twenty employees, although the number of employees engaged by them is more than twenty when taken together. The entire attempt of the petitioners is to show that the two entities are separate units so that the Provident Funds Act does not get attracted. The material on record however, leads to only one pointer that the two entities are parts of the same establishment and in which case they get covered under the Provident Funds Act. 15. As the preamble of the Provident Funds Act states, `it is an act to provide for the institution of provident funds, pension fund and deposit-linked insurance fund for employees in factories and other establishments. The term factory is defined under section 2 (g) of the Act, however, there is no definition of an establishment or a commercial establishment in the statute. Inasmuch as the petitioners are entities situated in Delhi, we may profitably rely upon the definition of `establishment and `commercial establishment under the Delhi Shops and Establishments Act, 1954. The definition of establishment is available in section 2 (9) and that of commercial establishment in section 2 (5) thereof. These two definitions read as follows:- “Section 2(9) Establishment- “establishment” means a shop, a commercial establishment, residential hotel, restaurant, eating house, theatre or other places of public amusement or entertainment to which this Act applies and includes such other establishments as Government may, by notification in the Official Gazette, declare to be an establishment for the purposes of this Act; Section 2(5) Commercial establishment 2(5) “commercial establishment” means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto, is carried on and includes a society registered under the Societies Registration Act 1860 (XXI of 1860) and charitable or other trust, whether registered or not, which carries on any business, trade or profession or work in connection with or incidental or ancillary thereto, journalistic and printing establishments, contractors and auditors establishments quarries, and mines not governed by the Mines Act, 1952 (XXXV of 1952), educational or other institution run for private gain and premises in which business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, but does not include a shop or a factory registered under the Factories Act, 1948 (LXIII of 1948), or theatres, cinemas, restaurants, eating houses, residential hotels, clubs or other places of public amusement or entertainment;” It cannot be denied that the two petitioners carry on a trade or business for private gain from the premises wherein the two companies are situated. They would therefore, fall within the definition of `commercial establishment and consequently, under the definition of `establishment. The only question is whether they are to be treated as two separate establishments or one establishment for the purposes of this act. 16. The petitioners have contended that the two entities are two separate establishments. They have tried to draw support from section 2(A) of the Act which declares that where an establishment consists of different departments or has branches whether situated in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment. It was submitted that only different departments or branches of an establishment can be clubbed together, but not different establishments altogether. In this connection, what is to be noted is that, this is an enabling provision in a welfare enactment. The two petitioners may not be different departments of one establishment in the strict sense. However, when we notice that they are run by the same family under a common management with common workforce and with financial integrity, they are expected to be treated as branches of one establishment for the purposes of Provident Funds Act. The issue is with respect to the application of a welfare enactment and the approach has to be as indicated by this Court in Sayaji Mills Ltd. (supra). The test has to be the one as laid down in Associated Cement Company (supra) which has been explained in Management of Pratap Press (supra).17. The Provident Fund Department had issued notice to the petitioners on 11.6.1990 on the basis of their inspection. It had relied upon the 1988 Audit Report of the petitioners. The petitioners had full opportunity to explain their position in the inquiry before the Provident Fund Commissioner conducted under Section 7A of the Provident Funds Act. The petitioners, however, confined themselves only to a facile explanation. If according to them, the management, workforce and financial affairs of the two companies were genuinely independent, they ought to have led the necessary evidence, since they would be in the best know of it. When any fact is especially within the knowledge of any person, the burden of proving that fact lies on him. This rule (which is also embodied in section 106 of the Evidence Act) expects such a party to produce the best evidence before the authority concerned, failing which the authority cannot be faulted for drawing the necessary inference. In the facts and circumstances of the present case, the Provident Fund Commissioner was therefore justified in drawing the inference of integrity of finance, management and workforce in the two petitioners on the basis of the material on record.18. The Regional Provident Funds Commissioner was therefore, entirely justified in taking the view that on the facts and law, the two petitioners had to be clubbed together for the purposes of their coverage under the Provident Funds Act. The Appellate Tribunal clearly erred in re-appreciating the facts on record and applying wrong propositions of law thereto. The learned Single Judge was therefore required to set-aside the order of the Appellate Tribunal in view of his conclusion that the order was contrary to the facts and the law, and was perverse. The Division Bench has rightly confirmed the order passed by the learned Single Judge. | 0[ds]The Provident Funds Act, is a welfare enactment brought into force for that purpose. The Parliament was concerned with the issue of making an appropriate provision for the employees in the factories and the establishments after their retirement, and for the benefit of their dependents in case of early death of the employees. That is how the Provident Funds Act came to be enacted in the year 1952, which requires a compulsory contribution to the fund and which is independently managed by the Provident Fund Commissioner. The employer and employees covered thereunder, both contribute towards this fund. As per the present provision of section 6 of the Provident Funds Act, both of them have to contribute to the fund an amount equivalent to 10% of the basic wage and dearness allowance (and retaining allowance, if any) per month. The Central Government has the power to raise this contribution to 12% after making an appropriate enquiry. The contribution to fund earns an appropriate interest thereon. As stated above, after the retirement of the employee or in the event of need of finance for specified reasons, or in the event of his death prior thereto, the amount becomesThe petitioners have contended that the two entities are two separate establishments. They have tried to draw support from section 2(A) of the Act which declares that where an establishment consists of different departments or has branches whether situated in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment. It was submitted that only different departments or branches of an establishment can be clubbed together, but not different establishments altogether. In this connection, what is to be noted is that, this is an enabling provision in a welfare enactment. The two petitioners may not be different departments of one establishment in the strict sense. However, when we notice that they are run by the same family under a common management with common workforce and with financial integrity, they are expected to be treated as branches of one establishment for the purposes of Provident Funds Act. The issue is with respect to the application of a welfare enactment and the approach has to be as indicated by this Court in Sayaji Mills Ltd. (supra). The test has to be the one as laid down in Associated Cement Company (supra) which has been explained in Management of Pratap Press (supra).17. The Provident Fund Department had issued notice to the petitioners on 11.6.1990 on the basis of their inspection. It had relied upon the 1988 Audit Report of the petitioners. The petitioners had full opportunity to explain their position in the inquiry before the Provident Fund Commissioner conducted under Section 7A of the Provident Funds Act. The petitioners, however, confined themselves only to a facile explanation. If according to them, the management, workforce and financial affairs of the two companies were genuinely independent, they ought to have led the necessary evidence, since they would be in the best know of it. When any fact is especially within the knowledge of any person, the burden of proving that fact lies on him. This rule (which is also embodied in section 106 of the Evidence Act) expects such a party to produce the best evidence before the authority concerned, failing which the authority cannot be faulted for drawing the necessary inference. In the facts and circumstances of the present case, the Provident Fund Commissioner was therefore justified in drawing the inference of integrity of finance, management and workforce in the two petitioners on the basis of the material on record.18. The Regional Provident Funds Commissioner was therefore, entirely justified in taking the view that on the facts and law, the two petitioners had to be clubbed together for the purposes of their coverage under the Provident Funds Act. The Appellate Tribunal clearly erred in re-appreciating the facts on record and applying wrong propositions of law thereto. The learned Single Judge was therefore required to set-aside the order of the Appellate Tribunal in view of his conclusion that the order was contrary to the facts and the law, and was perverse. The Division Bench has rightly confirmed the order passed by the learned Single Judge. | 0 | 4,404 | 782 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the two private limited companies. The two companies have seen to it that on record each of the two entities engage less than twenty employees, although the number of employees engaged by them is more than twenty when taken together. The entire attempt of the petitioners is to show that the two entities are separate units so that the Provident Funds Act does not get attracted. The material on record however, leads to only one pointer that the two entities are parts of the same establishment and in which case they get covered under the Provident Funds Act. 15. As the preamble of the Provident Funds Act states, `it is an act to provide for the institution of provident funds, pension fund and deposit-linked insurance fund for employees in factories and other establishments. The term factory is defined under section 2 (g) of the Act, however, there is no definition of an establishment or a commercial establishment in the statute. Inasmuch as the petitioners are entities situated in Delhi, we may profitably rely upon the definition of `establishment and `commercial establishment under the Delhi Shops and Establishments Act, 1954. The definition of establishment is available in section 2 (9) and that of commercial establishment in section 2 (5) thereof. These two definitions read as follows:- “Section 2(9) Establishment- “establishment” means a shop, a commercial establishment, residential hotel, restaurant, eating house, theatre or other places of public amusement or entertainment to which this Act applies and includes such other establishments as Government may, by notification in the Official Gazette, declare to be an establishment for the purposes of this Act; Section 2(5) Commercial establishment 2(5) “commercial establishment” means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto, is carried on and includes a society registered under the Societies Registration Act 1860 (XXI of 1860) and charitable or other trust, whether registered or not, which carries on any business, trade or profession or work in connection with or incidental or ancillary thereto, journalistic and printing establishments, contractors and auditors establishments quarries, and mines not governed by the Mines Act, 1952 (XXXV of 1952), educational or other institution run for private gain and premises in which business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, but does not include a shop or a factory registered under the Factories Act, 1948 (LXIII of 1948), or theatres, cinemas, restaurants, eating houses, residential hotels, clubs or other places of public amusement or entertainment;” It cannot be denied that the two petitioners carry on a trade or business for private gain from the premises wherein the two companies are situated. They would therefore, fall within the definition of `commercial establishment and consequently, under the definition of `establishment. The only question is whether they are to be treated as two separate establishments or one establishment for the purposes of this act. 16. The petitioners have contended that the two entities are two separate establishments. They have tried to draw support from section 2(A) of the Act which declares that where an establishment consists of different departments or has branches whether situated in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment. It was submitted that only different departments or branches of an establishment can be clubbed together, but not different establishments altogether. In this connection, what is to be noted is that, this is an enabling provision in a welfare enactment. The two petitioners may not be different departments of one establishment in the strict sense. However, when we notice that they are run by the same family under a common management with common workforce and with financial integrity, they are expected to be treated as branches of one establishment for the purposes of Provident Funds Act. The issue is with respect to the application of a welfare enactment and the approach has to be as indicated by this Court in Sayaji Mills Ltd. (supra). The test has to be the one as laid down in Associated Cement Company (supra) which has been explained in Management of Pratap Press (supra).17. The Provident Fund Department had issued notice to the petitioners on 11.6.1990 on the basis of their inspection. It had relied upon the 1988 Audit Report of the petitioners. The petitioners had full opportunity to explain their position in the inquiry before the Provident Fund Commissioner conducted under Section 7A of the Provident Funds Act. The petitioners, however, confined themselves only to a facile explanation. If according to them, the management, workforce and financial affairs of the two companies were genuinely independent, they ought to have led the necessary evidence, since they would be in the best know of it. When any fact is especially within the knowledge of any person, the burden of proving that fact lies on him. This rule (which is also embodied in section 106 of the Evidence Act) expects such a party to produce the best evidence before the authority concerned, failing which the authority cannot be faulted for drawing the necessary inference. In the facts and circumstances of the present case, the Provident Fund Commissioner was therefore justified in drawing the inference of integrity of finance, management and workforce in the two petitioners on the basis of the material on record.18. The Regional Provident Funds Commissioner was therefore, entirely justified in taking the view that on the facts and law, the two petitioners had to be clubbed together for the purposes of their coverage under the Provident Funds Act. The Appellate Tribunal clearly erred in re-appreciating the facts on record and applying wrong propositions of law thereto. The learned Single Judge was therefore required to set-aside the order of the Appellate Tribunal in view of his conclusion that the order was contrary to the facts and the law, and was perverse. The Division Bench has rightly confirmed the order passed by the learned Single Judge.
### Response:
0
### Explanation:
The Provident Funds Act, is a welfare enactment brought into force for that purpose. The Parliament was concerned with the issue of making an appropriate provision for the employees in the factories and the establishments after their retirement, and for the benefit of their dependents in case of early death of the employees. That is how the Provident Funds Act came to be enacted in the year 1952, which requires a compulsory contribution to the fund and which is independently managed by the Provident Fund Commissioner. The employer and employees covered thereunder, both contribute towards this fund. As per the present provision of section 6 of the Provident Funds Act, both of them have to contribute to the fund an amount equivalent to 10% of the basic wage and dearness allowance (and retaining allowance, if any) per month. The Central Government has the power to raise this contribution to 12% after making an appropriate enquiry. The contribution to fund earns an appropriate interest thereon. As stated above, after the retirement of the employee or in the event of need of finance for specified reasons, or in the event of his death prior thereto, the amount becomesThe petitioners have contended that the two entities are two separate establishments. They have tried to draw support from section 2(A) of the Act which declares that where an establishment consists of different departments or has branches whether situated in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment. It was submitted that only different departments or branches of an establishment can be clubbed together, but not different establishments altogether. In this connection, what is to be noted is that, this is an enabling provision in a welfare enactment. The two petitioners may not be different departments of one establishment in the strict sense. However, when we notice that they are run by the same family under a common management with common workforce and with financial integrity, they are expected to be treated as branches of one establishment for the purposes of Provident Funds Act. The issue is with respect to the application of a welfare enactment and the approach has to be as indicated by this Court in Sayaji Mills Ltd. (supra). The test has to be the one as laid down in Associated Cement Company (supra) which has been explained in Management of Pratap Press (supra).17. The Provident Fund Department had issued notice to the petitioners on 11.6.1990 on the basis of their inspection. It had relied upon the 1988 Audit Report of the petitioners. The petitioners had full opportunity to explain their position in the inquiry before the Provident Fund Commissioner conducted under Section 7A of the Provident Funds Act. The petitioners, however, confined themselves only to a facile explanation. If according to them, the management, workforce and financial affairs of the two companies were genuinely independent, they ought to have led the necessary evidence, since they would be in the best know of it. When any fact is especially within the knowledge of any person, the burden of proving that fact lies on him. This rule (which is also embodied in section 106 of the Evidence Act) expects such a party to produce the best evidence before the authority concerned, failing which the authority cannot be faulted for drawing the necessary inference. In the facts and circumstances of the present case, the Provident Fund Commissioner was therefore justified in drawing the inference of integrity of finance, management and workforce in the two petitioners on the basis of the material on record.18. The Regional Provident Funds Commissioner was therefore, entirely justified in taking the view that on the facts and law, the two petitioners had to be clubbed together for the purposes of their coverage under the Provident Funds Act. The Appellate Tribunal clearly erred in re-appreciating the facts on record and applying wrong propositions of law thereto. The learned Single Judge was therefore required to set-aside the order of the Appellate Tribunal in view of his conclusion that the order was contrary to the facts and the law, and was perverse. The Division Bench has rightly confirmed the order passed by the learned Single Judge.
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Undavilli Nagarathnam & Anr Vs. Reddi Satyanarayana Murthi & Ors | regard to tenants inducted into the land by a mortgagee cases may arise where we said ten ants may acquire rights of special character by virtue of statutory provisions which by, in the meanwhile, come into operation. A permissible settlements 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".Counsel submits that the present case is clearly distinguishable from the above case since prior to the execution of Ex. B-13 in 1958 the Andhra Act had already come into force and it was not a case where certain special rights were created "in the meanwhile".10. When a person with full knowledge of the law, ignorance of which is no excuse, enters upon a lawful transaction or executes a valid document, the rights flowing from the law cannot be denied to those who are entitled to their benefit on th e supposed theory of estoppel or a plea of contracting out by implication. Prabhus case (supra) is not an authority for such a proposition which counsel seeks to spell out. The provisions of the Andhra Act will, therefore, be attracted to t he tenancy created by Ex. B-13.It is further contended by Mr. Natesan that the plaintiffs are not landlords within the meaning of section 2(f) of the Andhra Act. He also submits that defendant No. 1 is not a cultivating tenant under the plaintiffs.By section 2(f) of the Andhra Act, " landlord means, the owner of a holding or part thereof who is entitled to evict the cultivating tenant from such holding or part, and includes the heirs, assignees, legal representatives of such own er, or person deriving rights through him".By section 2(c) of the said Act, " cultivating tenant means a per son who cultivates by his own labour or by that of any other member of his family or by hired labour under his supervision and control, any land belonging to another under a tenancy agreement, express or implied, but does not include a mere intermediary".The High Court has found that defendant No. 1 was a cultivating tenant of the landlord under Subbarayudu relying on Ex. B-13 and also on admissions by the defendants 2 and 3 who conceded possession of the land by defendant No. 1 as a lessee under Subbarayudu and their own possession as farm servants under the first defendant. We have no reason to take a contrary view.In view of our conclusion that Ex. B-13 is an instrument of lease, there is no difficulty in holding that Subbarayudu was the quondam landlord of the first defendant within the meaning of section 2(f) of the Andhra Act. Once that is established, section 10 of the Andhra Act takes care of the tenancy that has been created under Ex. B-13.11. Section 10 of the Andhra Act at the relevant time reads as under:"10(1) "The minimum period of every lease entered into between a landlord and his cultivating tenant on or after the commencement of this Act, shall be six years. Every such lease shall be in writing and shall specify the holding, its extent and the rent payable therefore, with such other particulars, as may be prescribed. The stamp and registration charges for every such lease shall be borne by the landlord and the cultivating tenant in equal shares.(2) Notwithstanding anything contained in sub-section (1) all tenancies subsisting on the date of promulgation of the Andhra Cultivating Tenants Protection ordinance, 1956 (Andhra ordinance 1 of 1956), and protected by that ordinance, and all subsequent tenancy agreements entered into up to the commencement of this Act, shall continue for a period of five years from the 1st June 1956 or until the expiry of the lease in the normal course, whichever is later, on the same terms and conditions as before, but subject to the determination of fair rent in case of dispute.(3) After such termination, the landlord may resume the land from the cultivating tenant without any notice, and if the tenant does not surrender possession, the landlord may by an application before the Tahsildar obtain an order for delivery of possession in the prescribed manner".Thus under section 10(1) when Ex. B-13 was executed on August 4, 1958, the lease created would by statute continue up to August 4, 1964 and even for further periods by later amendments of the Act. Taking the original section 10(1) itself, the landlord Subbarayudu died in May 1960 and there is n o question of the lease ceasing on his death in view of the clear provision under section 10(1). As assignees by gift the plaintiffs are landlords on the death of Subbarayudu. Under section 11, the ownership thus being changed on the death of the landlord, the tenancy, which subsists by operation of law, will continue on the same terms and conditions for the unexpired portion of the lease under the scheme of the Act as amended. The expression "currency of the lease" in section 1-1 will include the statutory extension of the lease under the provisions of the Andhra Act.12. Termination of tenancy under the Andhra Act is provided for under section 13. Under section 16" there is a special forum for adjudication of disputes under the Act including eviction of cultivating tenants. Under section 17 the provisions of the Andhra Act override anything inconsistent therewith contained in any preexisting law, custom, usage, agreement or decree or order of a Court.It is, therefore, clear that the civil litigation between the parties having established their respective rights based on the two documents, Ex. A-1 and Ex. B-13, and the plaintiffs being landlords and defendant No. 1 being a cultivating tenant, eviction will have to be sought for in accordance with the provisions of the Andhra Act. The High Court is right in refusing eviction through the process of the civil court.13. | 0[ds]We are satisfied that the document (Ex. B-13) fulfils the ingredients of a lease under section 105 of the Transfer of Property Act. The submission of Mr Natesan, therefore, cannot be accepted.Mr. Natesan next contends that Subbarayudu reserving; only "life interest" in the Schedule and properties after he had gifted the same to the plaintiffs by A-1 on April 14, 1955, could not in law imperil their rights to possession of the same after his death by leasing out the same properties in 1958 in the manner done in view of the provisions of the Andhra Act which had already come into force in 1956. At any rate, says Mr. Natesan, it was not an act of prudent management of the properties in which he had only life interest and the principles applicable to a mortgagee in possession under section 76(a) and (e) of the Transfer of Property Act would be applicable in the present case and the lease will not be binding on theof tenancy under the Andhra Act is provided for under section 13. Under section 16" there is a special forum for adjudication of disputes under the Act including eviction of cultivating tenants. Under section 17 the provisions of the Andhra Act override anything inconsistent therewith contained in any preexisting law, custom, usage, agreement or decree or order of a Court.It is, therefore, clear that the civil litigation between the parties having established their respective rights based on the two documents, Ex. A-1 and Ex. B-13, and the plaintiffs being landlords and defendant No. 1 being a cultivating tenant, eviction will have to be sought for in accordance with the provisions of the Andhra Act. The High Court is right in refusing eviction through the process of the civil court. | 0 | 3,987 | 334 | ### 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:
regard to tenants inducted into the land by a mortgagee cases may arise where we said ten ants may acquire rights of special character by virtue of statutory provisions which by, in the meanwhile, come into operation. A permissible settlements 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".Counsel submits that the present case is clearly distinguishable from the above case since prior to the execution of Ex. B-13 in 1958 the Andhra Act had already come into force and it was not a case where certain special rights were created "in the meanwhile".10. When a person with full knowledge of the law, ignorance of which is no excuse, enters upon a lawful transaction or executes a valid document, the rights flowing from the law cannot be denied to those who are entitled to their benefit on th e supposed theory of estoppel or a plea of contracting out by implication. Prabhus case (supra) is not an authority for such a proposition which counsel seeks to spell out. The provisions of the Andhra Act will, therefore, be attracted to t he tenancy created by Ex. B-13.It is further contended by Mr. Natesan that the plaintiffs are not landlords within the meaning of section 2(f) of the Andhra Act. He also submits that defendant No. 1 is not a cultivating tenant under the plaintiffs.By section 2(f) of the Andhra Act, " landlord means, the owner of a holding or part thereof who is entitled to evict the cultivating tenant from such holding or part, and includes the heirs, assignees, legal representatives of such own er, or person deriving rights through him".By section 2(c) of the said Act, " cultivating tenant means a per son who cultivates by his own labour or by that of any other member of his family or by hired labour under his supervision and control, any land belonging to another under a tenancy agreement, express or implied, but does not include a mere intermediary".The High Court has found that defendant No. 1 was a cultivating tenant of the landlord under Subbarayudu relying on Ex. B-13 and also on admissions by the defendants 2 and 3 who conceded possession of the land by defendant No. 1 as a lessee under Subbarayudu and their own possession as farm servants under the first defendant. We have no reason to take a contrary view.In view of our conclusion that Ex. B-13 is an instrument of lease, there is no difficulty in holding that Subbarayudu was the quondam landlord of the first defendant within the meaning of section 2(f) of the Andhra Act. Once that is established, section 10 of the Andhra Act takes care of the tenancy that has been created under Ex. B-13.11. Section 10 of the Andhra Act at the relevant time reads as under:"10(1) "The minimum period of every lease entered into between a landlord and his cultivating tenant on or after the commencement of this Act, shall be six years. Every such lease shall be in writing and shall specify the holding, its extent and the rent payable therefore, with such other particulars, as may be prescribed. The stamp and registration charges for every such lease shall be borne by the landlord and the cultivating tenant in equal shares.(2) Notwithstanding anything contained in sub-section (1) all tenancies subsisting on the date of promulgation of the Andhra Cultivating Tenants Protection ordinance, 1956 (Andhra ordinance 1 of 1956), and protected by that ordinance, and all subsequent tenancy agreements entered into up to the commencement of this Act, shall continue for a period of five years from the 1st June 1956 or until the expiry of the lease in the normal course, whichever is later, on the same terms and conditions as before, but subject to the determination of fair rent in case of dispute.(3) After such termination, the landlord may resume the land from the cultivating tenant without any notice, and if the tenant does not surrender possession, the landlord may by an application before the Tahsildar obtain an order for delivery of possession in the prescribed manner".Thus under section 10(1) when Ex. B-13 was executed on August 4, 1958, the lease created would by statute continue up to August 4, 1964 and even for further periods by later amendments of the Act. Taking the original section 10(1) itself, the landlord Subbarayudu died in May 1960 and there is n o question of the lease ceasing on his death in view of the clear provision under section 10(1). As assignees by gift the plaintiffs are landlords on the death of Subbarayudu. Under section 11, the ownership thus being changed on the death of the landlord, the tenancy, which subsists by operation of law, will continue on the same terms and conditions for the unexpired portion of the lease under the scheme of the Act as amended. The expression "currency of the lease" in section 1-1 will include the statutory extension of the lease under the provisions of the Andhra Act.12. Termination of tenancy under the Andhra Act is provided for under section 13. Under section 16" there is a special forum for adjudication of disputes under the Act including eviction of cultivating tenants. Under section 17 the provisions of the Andhra Act override anything inconsistent therewith contained in any preexisting law, custom, usage, agreement or decree or order of a Court.It is, therefore, clear that the civil litigation between the parties having established their respective rights based on the two documents, Ex. A-1 and Ex. B-13, and the plaintiffs being landlords and defendant No. 1 being a cultivating tenant, eviction will have to be sought for in accordance with the provisions of the Andhra Act. The High Court is right in refusing eviction through the process of the civil court.13.
### Response:
0
### Explanation:
We are satisfied that the document (Ex. B-13) fulfils the ingredients of a lease under section 105 of the Transfer of Property Act. The submission of Mr Natesan, therefore, cannot be accepted.Mr. Natesan next contends that Subbarayudu reserving; only "life interest" in the Schedule and properties after he had gifted the same to the plaintiffs by A-1 on April 14, 1955, could not in law imperil their rights to possession of the same after his death by leasing out the same properties in 1958 in the manner done in view of the provisions of the Andhra Act which had already come into force in 1956. At any rate, says Mr. Natesan, it was not an act of prudent management of the properties in which he had only life interest and the principles applicable to a mortgagee in possession under section 76(a) and (e) of the Transfer of Property Act would be applicable in the present case and the lease will not be binding on theof tenancy under the Andhra Act is provided for under section 13. Under section 16" there is a special forum for adjudication of disputes under the Act including eviction of cultivating tenants. Under section 17 the provisions of the Andhra Act override anything inconsistent therewith contained in any preexisting law, custom, usage, agreement or decree or order of a Court.It is, therefore, clear that the civil litigation between the parties having established their respective rights based on the two documents, Ex. A-1 and Ex. B-13, and the plaintiffs being landlords and defendant No. 1 being a cultivating tenant, eviction will have to be sought for in accordance with the provisions of the Andhra Act. The High Court is right in refusing eviction through the process of the civil court.
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Thane Municipal Corp. & Others Vs. Municipal Labour Union | 1. This appeal takes exception to the order dated 26.2.2013 passed by the High Court of Judicature at Bombay in Writ Petition No. 388 of 2013, which has confirmed the interim order passed by the Industrial Court, Thane, dated 6.12.2012 in Complaint (ULP) No. 416 of 2011. The said complaint has been filed by the respondent-Union, in which an interim application was moved, praying for the following reliefs:-"(a) to restrain the respondents from refunding the amount of membership lying with the Corporation.(b) to direct the respondents to pay an amount equivalent to the entire amount of membership collected/deducted and not paid to the complainant so far from wages of employees in the name of complainant Union for the period July to December, 2011.(c) to direct the respondents to handover the amount of membership lying with the office of Corporation, of such employees whose membership have been deducted pursuant to consent letters given in favour of complainant."2. The complaint has been filed under Section 28 read with Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971, alleging failure on the part of the appellants in implementing the award, settlement or agreement. The reliefs prayed for in the said complaint are as under:-"(a) hold and declare that the respondent have engaged in unfair labour practice under Items 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971.(b) direct the respondents to cease and desist from engaging in unfair labour practice complained of hereinabove.(c) to quash and set aside the circulars dated 18.10.2011 and 3.11.2011.(d) to direct the respondents to pay an amount equivalent to the entire amount of membership collected/deducted and not paid to complainant so far from wages of employees in the name of complainant union for the period July to December, 2011.(e) to restrain the respondents from refunding the amount of membership lying with the Corporation.(f) to direct the respondents to handover the amount of membership lying with the office of Corporation, of such employees whose membership have been deducted pursuant to consent letters given in favour of complaint.(g) any other relief this Honble Court may deem fit and proper.(h) ad-interim or interim order in terms of prayers(d) to (f) above.(i) cost of the complaint.(j) compensation of Rs. 50,000/- in favour of the complainant."3. This court while issuing notice on 2.7.2013, stayed the operation of the order dated 6.12.2012 passed by the Industrial Court, Thane in Complaint (ULP) No. 416 of 2011. That interim order has been continued during the pendency of this appeal, as a result of which the interim direction given by the Industrial Court has not been acted upon.4. We have heard Mr. Vinay Navare and Ms. Abha R. Sharma, learned counsel appearing for the appellants and Ms. Sneha Mukherjee and Ms. Jyoti Mendiratta, learned counsel for the respondent-Union. The grievance of the appellants is that the Industrial Court has in effect passed mandatory direction against the appellants at the interim stage of the proceedings. The reasons which weighed with the Industrial Court, as affirmed by the High Court, for passing such order, according to the appellants, are untenable. The respondent-Union on the other hand, contends that the interim direction given by the Industrial Court is just and proper, and needs no interference.5. After considering the rival submissions, we are of the view that the interests of justice would be met if the interim arrangement directed by this Court is continued, and the Industrial Court is directed to decide Complaint (ULP) No. 416 of 2011 expeditiously, preferably within three months from the receipt of a copy of this order. We refrain from examining the contentions raised before us, as we are of the considered opinion that it will have a bearing on the main relief claimed in the complaint, which we have directed to be decided expeditiously. | 1[ds]5. After considering the rival submissions, we are of the view that the interests of justice would be met if the interim arrangement directed by this Court is continued, and the Industrial Court is directed to decide Complaint (ULP) No. 416 of 2011 expeditiously, preferably within three months from the receipt of a copy of this order. We refrain from examining the contentions raised before us, as we are of the considered opinion that it will have a bearing on the main relief claimed in the complaint, which we have directed to be decided expeditiously. | 1 | 764 | 110 | ### 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:
1. This appeal takes exception to the order dated 26.2.2013 passed by the High Court of Judicature at Bombay in Writ Petition No. 388 of 2013, which has confirmed the interim order passed by the Industrial Court, Thane, dated 6.12.2012 in Complaint (ULP) No. 416 of 2011. The said complaint has been filed by the respondent-Union, in which an interim application was moved, praying for the following reliefs:-"(a) to restrain the respondents from refunding the amount of membership lying with the Corporation.(b) to direct the respondents to pay an amount equivalent to the entire amount of membership collected/deducted and not paid to the complainant so far from wages of employees in the name of complainant Union for the period July to December, 2011.(c) to direct the respondents to handover the amount of membership lying with the office of Corporation, of such employees whose membership have been deducted pursuant to consent letters given in favour of complainant."2. The complaint has been filed under Section 28 read with Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971, alleging failure on the part of the appellants in implementing the award, settlement or agreement. The reliefs prayed for in the said complaint are as under:-"(a) hold and declare that the respondent have engaged in unfair labour practice under Items 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971.(b) direct the respondents to cease and desist from engaging in unfair labour practice complained of hereinabove.(c) to quash and set aside the circulars dated 18.10.2011 and 3.11.2011.(d) to direct the respondents to pay an amount equivalent to the entire amount of membership collected/deducted and not paid to complainant so far from wages of employees in the name of complainant union for the period July to December, 2011.(e) to restrain the respondents from refunding the amount of membership lying with the Corporation.(f) to direct the respondents to handover the amount of membership lying with the office of Corporation, of such employees whose membership have been deducted pursuant to consent letters given in favour of complaint.(g) any other relief this Honble Court may deem fit and proper.(h) ad-interim or interim order in terms of prayers(d) to (f) above.(i) cost of the complaint.(j) compensation of Rs. 50,000/- in favour of the complainant."3. This court while issuing notice on 2.7.2013, stayed the operation of the order dated 6.12.2012 passed by the Industrial Court, Thane in Complaint (ULP) No. 416 of 2011. That interim order has been continued during the pendency of this appeal, as a result of which the interim direction given by the Industrial Court has not been acted upon.4. We have heard Mr. Vinay Navare and Ms. Abha R. Sharma, learned counsel appearing for the appellants and Ms. Sneha Mukherjee and Ms. Jyoti Mendiratta, learned counsel for the respondent-Union. The grievance of the appellants is that the Industrial Court has in effect passed mandatory direction against the appellants at the interim stage of the proceedings. The reasons which weighed with the Industrial Court, as affirmed by the High Court, for passing such order, according to the appellants, are untenable. The respondent-Union on the other hand, contends that the interim direction given by the Industrial Court is just and proper, and needs no interference.5. After considering the rival submissions, we are of the view that the interests of justice would be met if the interim arrangement directed by this Court is continued, and the Industrial Court is directed to decide Complaint (ULP) No. 416 of 2011 expeditiously, preferably within three months from the receipt of a copy of this order. We refrain from examining the contentions raised before us, as we are of the considered opinion that it will have a bearing on the main relief claimed in the complaint, which we have directed to be decided expeditiously.
### Response:
1
### Explanation:
5. After considering the rival submissions, we are of the view that the interests of justice would be met if the interim arrangement directed by this Court is continued, and the Industrial Court is directed to decide Complaint (ULP) No. 416 of 2011 expeditiously, preferably within three months from the receipt of a copy of this order. We refrain from examining the contentions raised before us, as we are of the considered opinion that it will have a bearing on the main relief claimed in the complaint, which we have directed to be decided expeditiously.
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Janardan Vs. State Of Maharashtra | functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly execute.7. Analysing this definition it would appear that any official title of the officer mentioned in any Act made after the General Clauses Act would deem by fiction of law to include any such official title referred to in any Act passed after the General Clauses Act.8. Furthermore, not only the official title but even the functions executed by the said officer would also be deemed to have been exercised by the officer designated in the subsequent Act. The combined effect, therefore, of section 6 of the Gambling Act and section 17(1) of the General Clauses Act would be that the term Commissioner of Police would include all officers who are executing or performing the functions of the Commissioner of Police as defined or authorised under the latter Act, namely, the Police Art . It would thus be seen that sub-section (6) of section 2 of the Police Act clearly mentions that the term Commissioner of Police would include, an Assistant Commissioner. Thus sub-section (6) runs thus:"2. In this Act, unless there is anything repugnant in the subject or context* * * *(6)............ A Commissioner of Police including an Additional Commissioner of Police, A Deputy Inspector General of Police (including the Director of Police Wireless and Deputy Inspector General of Police appointed under section 8A), a Deputy Commissioner of Police and Assistant Commissioner of Police.............Section 11 of the Police Act runs thus"11 (1) The State Government may appoint for any area for which a Commissioner of Police has been appointed under section 7 such number of Assistant Commissioners of Police as it may think expedient.(2) An assistant Commissioner appointed under subsection (1) shall exercise such powers and perform such duties and functions as can be exercised or performed under the provisions of this Act or any other law for the time being in force or as are assigned to him by the Commissioner under the general or special orders of State Government".9. A perusal of section 11 of, the Police Act leads to the inescapable conclusion that an Assistant Commissioner appointed under sub-section (1) is to perform such duties and functions as can exercised- under the Act or any other law for the time being in force, which undoubtedly includes the Gambling Act which was a law in force at the time when the Police Act was passed. Apart from this the, Assistant Commissioner could also perform those functions which could be assigned to him by the Commissioner under the general or special orders of the State Government. The provision for assignment of powers by the Government to the Commissioner are con tained in section 10(2) of the Police Act which runs thus:"10(2) Every such Deputy Commissioner shall, under the orders of the Commissioner, exercise and perform any of the powers, functions and duties of the Commissioner to be exercised or performed by him under the provisions of this Act or any other law for the time being in force in accordance with the general or special order s of the State Government made in this behalf".10. The High Court has found as a fact that there was a notification by the State Government dated 10th March, 1967 by which all the Assistant Commissioners of Police including that of Nagpur were conferred powers and functions of the Commissioner of Police. Thus, in, the instant case at the time when the offence was committed two things had happened, (1) that in Nagpur where the offence had taken place there was a Commissioner of Police, and (2) that the Commissioner of Police had been conferred the power by the Government Notification to assign his functions, powers and duties to the Assistant Commissioner. In these circumstances, therefore, we do not find any difficulty in accepting the contention of the respondent that having regard to the combined reading of the provisions of section 17 of the General Clauses, Act and the Police Act the term Commissioner of Police appearing in section 6 of he Gambling Act would include even an Assistant Commissioner who was legally and validly assigned the powers, functions and duties of the Commissioner of Police by the State Government under section 10(2) of the Police Act. As th e Central Clauses Act was a statute which was passed before the Gambling Act came info force. section 17 of the General Clauses Act could be called into aid to interpret the scope and ambit of the term Commissioner of Police as used in section 6 of the Gambling Act.11. Learned counsel for the appellant however submitted that the power of assignment of functions by the Government given to the Commissioner of Police or the Assistant Commissioner could be exercised only in respect of matters covered by the Police Act and not beyond that. I am however unable to agree with this contention which completely overlooks the avowed object of section 17 of the General Clauses Act which has been passed to resolve such anomalies and it is not possible to construe the provisions of the police Act in complete isolation by ignoring the provisions of the General Clauses Act which undoubtedly apply to the facts and circumstances of the present case. For these reasons, therefore, the second contention put. forward by the appellant also fails.I am, therefore, satisfied that the conviction of the appellant does not suffer from any infirmity but having regard to the fact that the offence took place more than 10 years herein before I feel that the interests of justice do not require that the appellant should be sent back to jail. I would, therefore, while upholding the conviction of the appellant under sections 4 and 5 of the Gambling Act reduce the sentence of imprisonment to the period already served maintains the sentence of fine awarded under both the counts, namely, sections 4 and 5 of the Gambing Act. | 0[ds]I am however unable to agree with this contention which completely overlooks the avowed object of section 17 of the General Clauses Act which has been passed to resolve such anomalies and it is not possible to construe the provisions of the police Act in complete isolation by ignoring the provisions of the General Clauses Act which undoubtedly apply to the facts and circumstances of the present case. For these reasons, therefore, the second contention put. forward by the appellant also fails.I am, therefore, satisfied that the conviction of the appellant does not suffer from any infirmity but having regard to the fact that the offence took place more than 10 years herein before I feel that the interests of justice do not require that the appellant should be sent back to jail. I would, therefore, while upholding the conviction of the appellant under sections 4 and 5 of the Gambling Act reduce the sentence of imprisonment to the period already served maintains the sentence of fine awarded under both the counts, namely, sections 4 and 5 of the Gambing Act. | 0 | 2,122 | 197 | ### 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:
functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly execute.7. Analysing this definition it would appear that any official title of the officer mentioned in any Act made after the General Clauses Act would deem by fiction of law to include any such official title referred to in any Act passed after the General Clauses Act.8. Furthermore, not only the official title but even the functions executed by the said officer would also be deemed to have been exercised by the officer designated in the subsequent Act. The combined effect, therefore, of section 6 of the Gambling Act and section 17(1) of the General Clauses Act would be that the term Commissioner of Police would include all officers who are executing or performing the functions of the Commissioner of Police as defined or authorised under the latter Act, namely, the Police Art . It would thus be seen that sub-section (6) of section 2 of the Police Act clearly mentions that the term Commissioner of Police would include, an Assistant Commissioner. Thus sub-section (6) runs thus:"2. In this Act, unless there is anything repugnant in the subject or context* * * *(6)............ A Commissioner of Police including an Additional Commissioner of Police, A Deputy Inspector General of Police (including the Director of Police Wireless and Deputy Inspector General of Police appointed under section 8A), a Deputy Commissioner of Police and Assistant Commissioner of Police.............Section 11 of the Police Act runs thus"11 (1) The State Government may appoint for any area for which a Commissioner of Police has been appointed under section 7 such number of Assistant Commissioners of Police as it may think expedient.(2) An assistant Commissioner appointed under subsection (1) shall exercise such powers and perform such duties and functions as can be exercised or performed under the provisions of this Act or any other law for the time being in force or as are assigned to him by the Commissioner under the general or special orders of State Government".9. A perusal of section 11 of, the Police Act leads to the inescapable conclusion that an Assistant Commissioner appointed under sub-section (1) is to perform such duties and functions as can exercised- under the Act or any other law for the time being in force, which undoubtedly includes the Gambling Act which was a law in force at the time when the Police Act was passed. Apart from this the, Assistant Commissioner could also perform those functions which could be assigned to him by the Commissioner under the general or special orders of the State Government. The provision for assignment of powers by the Government to the Commissioner are con tained in section 10(2) of the Police Act which runs thus:"10(2) Every such Deputy Commissioner shall, under the orders of the Commissioner, exercise and perform any of the powers, functions and duties of the Commissioner to be exercised or performed by him under the provisions of this Act or any other law for the time being in force in accordance with the general or special order s of the State Government made in this behalf".10. The High Court has found as a fact that there was a notification by the State Government dated 10th March, 1967 by which all the Assistant Commissioners of Police including that of Nagpur were conferred powers and functions of the Commissioner of Police. Thus, in, the instant case at the time when the offence was committed two things had happened, (1) that in Nagpur where the offence had taken place there was a Commissioner of Police, and (2) that the Commissioner of Police had been conferred the power by the Government Notification to assign his functions, powers and duties to the Assistant Commissioner. In these circumstances, therefore, we do not find any difficulty in accepting the contention of the respondent that having regard to the combined reading of the provisions of section 17 of the General Clauses, Act and the Police Act the term Commissioner of Police appearing in section 6 of he Gambling Act would include even an Assistant Commissioner who was legally and validly assigned the powers, functions and duties of the Commissioner of Police by the State Government under section 10(2) of the Police Act. As th e Central Clauses Act was a statute which was passed before the Gambling Act came info force. section 17 of the General Clauses Act could be called into aid to interpret the scope and ambit of the term Commissioner of Police as used in section 6 of the Gambling Act.11. Learned counsel for the appellant however submitted that the power of assignment of functions by the Government given to the Commissioner of Police or the Assistant Commissioner could be exercised only in respect of matters covered by the Police Act and not beyond that. I am however unable to agree with this contention which completely overlooks the avowed object of section 17 of the General Clauses Act which has been passed to resolve such anomalies and it is not possible to construe the provisions of the police Act in complete isolation by ignoring the provisions of the General Clauses Act which undoubtedly apply to the facts and circumstances of the present case. For these reasons, therefore, the second contention put. forward by the appellant also fails.I am, therefore, satisfied that the conviction of the appellant does not suffer from any infirmity but having regard to the fact that the offence took place more than 10 years herein before I feel that the interests of justice do not require that the appellant should be sent back to jail. I would, therefore, while upholding the conviction of the appellant under sections 4 and 5 of the Gambling Act reduce the sentence of imprisonment to the period already served maintains the sentence of fine awarded under both the counts, namely, sections 4 and 5 of the Gambing Act.
### Response:
0
### Explanation:
I am however unable to agree with this contention which completely overlooks the avowed object of section 17 of the General Clauses Act which has been passed to resolve such anomalies and it is not possible to construe the provisions of the police Act in complete isolation by ignoring the provisions of the General Clauses Act which undoubtedly apply to the facts and circumstances of the present case. For these reasons, therefore, the second contention put. forward by the appellant also fails.I am, therefore, satisfied that the conviction of the appellant does not suffer from any infirmity but having regard to the fact that the offence took place more than 10 years herein before I feel that the interests of justice do not require that the appellant should be sent back to jail. I would, therefore, while upholding the conviction of the appellant under sections 4 and 5 of the Gambling Act reduce the sentence of imprisonment to the period already served maintains the sentence of fine awarded under both the counts, namely, sections 4 and 5 of the Gambing Act.
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Commnr. Of Central Excise, Meerut Vs. Maharshi Ayurveda Corp. Ltd | of the rules of interpretation of Schedule-I, "The heading which provides the most specific description shall be preferred to headings providing a more general description." Since the respondents preparation is covered by entries in Chapter 20, the same should be preferred to the residuary clause in Chapter 21 which is of general description. Relying upon the judgments of this Court in Bharat Forge & Press Industries (P) Ltd. vs. Collector of Central Excise, (1990 (45) E.L.T. 525), Indian Metals & Ferro Alloys Ltd. vs. Collector of Central Excise, (1991) (51) E.L.T. 165), Speedway Rubber Co. vs. Commissioner of Central Excise, Chandigarh, (2002 (143) E.L.T. 8) and C.C. (General), New Delhi vs. Gujarat Perstorp Electronics Ltd. (2005) (186) E.L.T. 532), it was contended that the Heading Note which is more specific should be preferred to the residuary clause. Findings 16. The product under reference is a mixture of assorted vegetation and dry fruits and seeds. That different vegetations namely Khas Khas, Aswagandha & Brahmi Booti is turned into powder and processed in Khas Khas and giri badam (almond) oil and then the whole mixture is processed in sugar syrup under vacuum and thereafter choti illayachii (cardamom) and roof kewara are added as flavour. Since the product "Herbonic" is mixture of different vegetation it is rightly been classified by the Tribunal under Chapter 20. In Chapter 21 there is an entry reading as "Edible preparations, not elsewhere specified or included" under the particular heading "Miscellaneous Edible Preparations". Chapter Note 9(a) of the Chapter 21 reads "Heading No. 21.08, inter alia includes: (a) protein concentrates and textured protein substances; (b) preparations of use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption". Sub-heading 2107.91 / 2108.90 covers other edible preparations not elsewhere specified and as such is residuary in nature. As per Rule 3 (a) of the rules of interpretation of Schedule-I, the heading which provides the specific description should be preferred to the heading providing a general description. 17. In Bharat Forge & Press Industries (P) Ltd. (supra) a three Judge Bench of this Court held that if a product cannot be brought under the specific entries in the tariff Act only then resort can be made to a residuary entry. It was held in para 3 as under:- "3. The question before us is whether the Department is right in claiming that the items in question are dutiable under tariff entry No. 68. This, as mentioned already, is the residuary entry and only such goods as cannot be brought under the various specific entries in the tariff should be attempted to be brought under the residuary entry. In other words, unless the department can establish that the goods in question can be no conceivable process of reasoning be brought under any of the tariff items, resort cannot be had to the residuary item". 18. To the same effect is the judgment in Indian Metals & Ferro Alloys Ltd. (supra), it was observed in para 16 as under:- "16. One more aspect of the issue should be adverted to before we conclude. The, assessee is relying upon a specific entry in the tariff schedule while the department seeks to bring the goods to charge under the residuary Item No. 68. It is a settled principle that unless the department can establish that the goods in question can, by no conceivable process of reasoning by brought under any of the specific items mentioned in the tariff, resort cannot be had to the residuary item: See the Bharat Forge Case (supra). This certainly is not the position in this case, particularly in the light of the departments own understanding and interpretation of Item 26AA." 19. In Speedway Rubber Co. (supra) this Court observed in para 23 as under:- "23. We may notice that as per Rule 3(a) of the Interpretation Rules to Central Excise Tariff Act, 1985, "The heading which provides the most specific description shall be preferred to headings providing a more general description." 20. In C.C. (General), New Delhi (supra) it was observed in para 57 as under:- "57. There is still one more aspect which is relevant. It cannot be disputed and is not disputed before us and is also concluded by a decision of a three Judge Bench in Associated Cement Co. Ltd. that the basic heading is 49.01. It deals with "Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets". 49.11 covers "Other printed matter, including printed pictures and photographs". Thus, specific or basic heading is 49.01 and residual entry is 49.11. Priority, therefore, has to be given to the main entry and not the residual entry. According to the Company, the case is covered by the main entry under 49.01 and in that view of the matter, one cannot consider the residual entry 49.11." 21. Since in the present case the product is covered under specific entry under Chapter 20 resort cannot be made to the residuary entry.22. The exclusionary note in HSN of Entry 20.08 of Chapter 20 of HSN is not applicable because it excludes the products consisting of mixture of plants or parts of plants (including seeds and fruits) of different species or consisting of plants or parts of plants which are not consumed as such but which are of a kind used for making herbal infusions or herbal "teas". In the present case the mixture prepared is of parts of plants, seeds and nuts which can be consumed as such. It would therefore be not applicable. Entry 14 of Chapter 2106.90 produced above would also be not applicable since in this case we are holding that the present case would be governed by Chapter 20 of the Tariff Act and not Chapter 21 of the Tariff Act. The Entry 14 referred to above is a part of Chapter 21 of HSN which corresponds to Chapter 21 of Tariff Act which is not applicable to the present case. 23. | 0[ds]21. Since in the present case the product is covered under specific entry under Chapter 20 resort cannot be made to the residuary entry.22. The exclusionary note in HSN of Entry 20.08 of Chapter 20 of HSN is not applicable because it excludes the products consisting of mixture of plants or parts of plants (including seeds and fruits) of different species or consisting of plants or parts of plants which are not consumed as such but which are of a kind used for making herbal infusions or herbal "teas". In the present case the mixture prepared is of parts of plants, seeds and nuts which can be consumed as such. It would therefore be not applicable. Entry 14 of Chapter 2106.90 produced above would also be not applicable since in this case we are holding that the present case would be governed by Chapter 20 of the Tariff Act and not Chapter 21 of the Tariff Act. The Entry 14 referred to above is a part of Chapter 21 of HSN which corresponds to Chapter 21 of Tariff Act which is not applicable to the present case.The product under reference is a mixture of assorted vegetation and dry fruits and seeds. That different vegetations namely Khas Khas, Aswagandha & Brahmi Booti is turned into powder and processed in Khas Khas and giri badam (almond) oil and then the whole mixture is processed in sugar syrup under vacuum and thereafter choti illayachii (cardamom) and roof kewara are added as flavour. Since the product "Herbonic" is mixture of different vegetation it is rightly been classified by the Tribunal under Chapter 20. In Chapter 21 there is an entry reading as "Edible preparations, not elsewhere specified or included" under the particular heading "Miscellaneous Edible Preparations". Chapter Note 9(a) of the Chapter 21 reads "Heading No. 21.08, inter alia includes: (a) protein concentrates and textured protein substances; (b) preparations of use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption". Sub-heading 2107.91 / 2108.90 covers other edible preparations not elsewhere specified and as such is residuary in nature. As per Rule 3 (a) of the rules of interpretation of Schedule-I, the heading which provides the specific description should be preferred to the heading providing a general description. | 0 | 3,200 | 441 | ### 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 rules of interpretation of Schedule-I, "The heading which provides the most specific description shall be preferred to headings providing a more general description." Since the respondents preparation is covered by entries in Chapter 20, the same should be preferred to the residuary clause in Chapter 21 which is of general description. Relying upon the judgments of this Court in Bharat Forge & Press Industries (P) Ltd. vs. Collector of Central Excise, (1990 (45) E.L.T. 525), Indian Metals & Ferro Alloys Ltd. vs. Collector of Central Excise, (1991) (51) E.L.T. 165), Speedway Rubber Co. vs. Commissioner of Central Excise, Chandigarh, (2002 (143) E.L.T. 8) and C.C. (General), New Delhi vs. Gujarat Perstorp Electronics Ltd. (2005) (186) E.L.T. 532), it was contended that the Heading Note which is more specific should be preferred to the residuary clause. Findings 16. The product under reference is a mixture of assorted vegetation and dry fruits and seeds. That different vegetations namely Khas Khas, Aswagandha & Brahmi Booti is turned into powder and processed in Khas Khas and giri badam (almond) oil and then the whole mixture is processed in sugar syrup under vacuum and thereafter choti illayachii (cardamom) and roof kewara are added as flavour. Since the product "Herbonic" is mixture of different vegetation it is rightly been classified by the Tribunal under Chapter 20. In Chapter 21 there is an entry reading as "Edible preparations, not elsewhere specified or included" under the particular heading "Miscellaneous Edible Preparations". Chapter Note 9(a) of the Chapter 21 reads "Heading No. 21.08, inter alia includes: (a) protein concentrates and textured protein substances; (b) preparations of use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption". Sub-heading 2107.91 / 2108.90 covers other edible preparations not elsewhere specified and as such is residuary in nature. As per Rule 3 (a) of the rules of interpretation of Schedule-I, the heading which provides the specific description should be preferred to the heading providing a general description. 17. In Bharat Forge & Press Industries (P) Ltd. (supra) a three Judge Bench of this Court held that if a product cannot be brought under the specific entries in the tariff Act only then resort can be made to a residuary entry. It was held in para 3 as under:- "3. The question before us is whether the Department is right in claiming that the items in question are dutiable under tariff entry No. 68. This, as mentioned already, is the residuary entry and only such goods as cannot be brought under the various specific entries in the tariff should be attempted to be brought under the residuary entry. In other words, unless the department can establish that the goods in question can be no conceivable process of reasoning be brought under any of the tariff items, resort cannot be had to the residuary item". 18. To the same effect is the judgment in Indian Metals & Ferro Alloys Ltd. (supra), it was observed in para 16 as under:- "16. One more aspect of the issue should be adverted to before we conclude. The, assessee is relying upon a specific entry in the tariff schedule while the department seeks to bring the goods to charge under the residuary Item No. 68. It is a settled principle that unless the department can establish that the goods in question can, by no conceivable process of reasoning by brought under any of the specific items mentioned in the tariff, resort cannot be had to the residuary item: See the Bharat Forge Case (supra). This certainly is not the position in this case, particularly in the light of the departments own understanding and interpretation of Item 26AA." 19. In Speedway Rubber Co. (supra) this Court observed in para 23 as under:- "23. We may notice that as per Rule 3(a) of the Interpretation Rules to Central Excise Tariff Act, 1985, "The heading which provides the most specific description shall be preferred to headings providing a more general description." 20. In C.C. (General), New Delhi (supra) it was observed in para 57 as under:- "57. There is still one more aspect which is relevant. It cannot be disputed and is not disputed before us and is also concluded by a decision of a three Judge Bench in Associated Cement Co. Ltd. that the basic heading is 49.01. It deals with "Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets". 49.11 covers "Other printed matter, including printed pictures and photographs". Thus, specific or basic heading is 49.01 and residual entry is 49.11. Priority, therefore, has to be given to the main entry and not the residual entry. According to the Company, the case is covered by the main entry under 49.01 and in that view of the matter, one cannot consider the residual entry 49.11." 21. Since in the present case the product is covered under specific entry under Chapter 20 resort cannot be made to the residuary entry.22. The exclusionary note in HSN of Entry 20.08 of Chapter 20 of HSN is not applicable because it excludes the products consisting of mixture of plants or parts of plants (including seeds and fruits) of different species or consisting of plants or parts of plants which are not consumed as such but which are of a kind used for making herbal infusions or herbal "teas". In the present case the mixture prepared is of parts of plants, seeds and nuts which can be consumed as such. It would therefore be not applicable. Entry 14 of Chapter 2106.90 produced above would also be not applicable since in this case we are holding that the present case would be governed by Chapter 20 of the Tariff Act and not Chapter 21 of the Tariff Act. The Entry 14 referred to above is a part of Chapter 21 of HSN which corresponds to Chapter 21 of Tariff Act which is not applicable to the present case. 23.
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### Explanation:
21. Since in the present case the product is covered under specific entry under Chapter 20 resort cannot be made to the residuary entry.22. The exclusionary note in HSN of Entry 20.08 of Chapter 20 of HSN is not applicable because it excludes the products consisting of mixture of plants or parts of plants (including seeds and fruits) of different species or consisting of plants or parts of plants which are not consumed as such but which are of a kind used for making herbal infusions or herbal "teas". In the present case the mixture prepared is of parts of plants, seeds and nuts which can be consumed as such. It would therefore be not applicable. Entry 14 of Chapter 2106.90 produced above would also be not applicable since in this case we are holding that the present case would be governed by Chapter 20 of the Tariff Act and not Chapter 21 of the Tariff Act. The Entry 14 referred to above is a part of Chapter 21 of HSN which corresponds to Chapter 21 of Tariff Act which is not applicable to the present case.The product under reference is a mixture of assorted vegetation and dry fruits and seeds. That different vegetations namely Khas Khas, Aswagandha & Brahmi Booti is turned into powder and processed in Khas Khas and giri badam (almond) oil and then the whole mixture is processed in sugar syrup under vacuum and thereafter choti illayachii (cardamom) and roof kewara are added as flavour. Since the product "Herbonic" is mixture of different vegetation it is rightly been classified by the Tribunal under Chapter 20. In Chapter 21 there is an entry reading as "Edible preparations, not elsewhere specified or included" under the particular heading "Miscellaneous Edible Preparations". Chapter Note 9(a) of the Chapter 21 reads "Heading No. 21.08, inter alia includes: (a) protein concentrates and textured protein substances; (b) preparations of use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption". Sub-heading 2107.91 / 2108.90 covers other edible preparations not elsewhere specified and as such is residuary in nature. As per Rule 3 (a) of the rules of interpretation of Schedule-I, the heading which provides the specific description should be preferred to the heading providing a general description.
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EIMCO K.C.P. Ltd Vs. Commissioner of Income Tax Madras | Assam, 44 ITR 578 and of Kerala in Kelpunj Enterprises v. Commissioner of Income-tax, Kerala, 108 ITR 249 , which we approve, we confirm the answer to the first question recorded by the High Court. 4. Regarding the second question Mr. Reddy vehemently contended that the amount of Rs. 2,35,000- was paid by the appellant to the foreign collaborator to acquire the know-how so it was revenue expenditure and ought to have been so held by the High Court. Mr. Shukla argued that know-how etc. are contributed by Eimco towards its share of the capital and that no amount was paid by the appellant to Eimco, allotment of shares of Eimco by the appellant could not be treated as expenditure incurred by it for purchase of know-how. To appreciate the contention of Mr. Reddy, it may be necessary to quote Section 37(1) of the Income Tax Act here : "37. General - (1) Any expenditure (not being expenditure of the nature described in Sections 30 to 36 * * * and not being in the nature of capital expenditure or personal expenses of the assessee), laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed to computing the income chargeable under the head "Profits and gains of business or profession." 5. A plain reading of the above provision makes it clear that it is a residuary provision and allows an expenditure, not covered under Sections 30 to 36 in computing the income chargeable under head "profits and gains of business or profession", on fulfilment of the other requirements, namely, (i) the expenditure should not be in the nature of capital expenditure or personal expenses of the assessee; (ii) it should have been laid out or expended wholly and exclusively for the purposes of the business or profession; (iii) it should have been expended in the previous year.6. The question is whether the amount in question can be treated as expenditure and whether it was expended wholly and exclusively for the purpose of the business of the appellant. 7. In support of his contention that Rs. 2,35,000- were spent for purchase of technical know-how, so it is a revenue expenditure. Mr. Reddy relied upon a letter addressed by the Vice-President of the Eimco Corporation to the Director of K.C.P. Ltd. on April 14, 1965. The relevant excerpts of the said letter read as under :- "In general, we agree that the organisation will follow that set forth in the Memorandum and Articles of Association of the K.C.P. - Tives Lille - Cail Private Limited (a corporation of India), but with the following specific provisions to which we have agreed.1. The Company will be organised and headquartered in India as an Indian Corporation with broad corporate powers.2. The name of the company will be EIMCO-K.C.P. Private Ltd.3. There will be two subscribers for one share each - each partner will designate one subscriber.4. Authorised capital is to be Rs. 10,000,000- consisting of 1,000,00 equity shares of Rs. 10- each.5. Each partner will subscribe to Rs. 470,000; of this amount each will initially pay in Rs. 280,000 or equivalent after approval by the Government of India and before commencement of operation; and the balance of the amount subscribed will be contributed by each partner, in equal amounts, as and if required for operation of the business.6. The amount initially paid in by Eimco will primarily consist of Eimcos know-how, valued at Rs. 235,000 and cash. Know-how consists of the right and licence to manufacture existing Eimco Sedimentation and filtration equipment, along with the supply of and or the agreement to supply general technical data including manufacturing drawings in the form as used and possessed by Eimco, relating to the sales, application, selection, material requirements, manufacture, installation and operation of such equipment, including but not limited to test procedures, instruction manuals, technical manuals, general arrangement and detail drawings, flow charts, research and development reports, sales manuals and bulletins, operating reports on existing installations and installation and operation manuals. The balance of the initial investment will be in cash." 8. A plain reading of the letter indicates that Eimco and K.C.P. agreed to float the appellant company with authorised capital of Rs. 10,000,000- consisting of 1,000,000 equity shares of Rs. 10- each. Each of them agreed to subscribe Rs, 4,70,000- out of which the amount equivalent to Rs, 2,80,000- was to be paid (after approval by the Government of India and before the commencement of operation). Eimco valued the know-how etc. at a sum of Rs. 2,35,000- and paid the balance in cash towards its contribution.9. What in effect was done by the appellant in allotting equity shares of Rs, 2,80,000- to Eimco, was to reimburse the contribution of Eimco by way of know-how, which can never be treated as expenditure much less an expenditure laid out wholly and exclusively for purpose of the business of the appellant. It is not a case where after the incorporation, the appellant-company in the course of the carrying on its business, spent the said amount for acquiring any asset. Reliance by Mr. Reddy on the judgment of this Court in Alembic Chemical Works Co. Ltd. v. Commissioner of Income-Tax, Gujarat, 1989(177) ITR 377 is wholly inappropriate. There know-how was acquired to produce higher yield and sub-culture of high yielding strain of penicillin. The assessee-company was already engaged in manufacturing of antibiotics including penicillin before it acquired the know-how. Therefore, it was a case of a running company acquiring know-how to increase its yield and quality of its product and for the better conduct and improvement of the existing business and therefore the amount spent on acquiring know-how was held to be revenue expenditure. 10. In our view, the High Court has rightly concluded that allotment of equity share by the appellant to Eimco, in the circumstance of the case, cannot be termed as `expenditure much less revenue expenditure and rightly answered the question referred to it against the appellant-assessee. 11. | 0[ds]8. A plain reading of the letter indicates that Eimco and K.C.P. agreed to float the appellant company with authorised capital of Rs. 10,000,000consisting of 1,000,000 equity shares of Rs. 10each. Each of them agreed to subscribe Rs, 4,70,000out of which the amount equivalent to Rs, 2,80,000was to be paid (after approval by the Government of India and before the commencement of operation). Eimco valued theetc. at a sum of Rs. 2,35,000and paid the balance in cash towards its contribution.9. What in effect was done by the appellant in allotting equity shares of Rs, 2,80,000to Eimco, was to reimburse the contribution of Eimco by way ofwhich can never be treated as expenditure much less an expenditure laid out wholly and exclusively for purpose of the business of the appellant. It is not a case where after the incorporation, thein the course of the carrying on its business, spent the said amount for acquiring any asset. Reliance by Mr. Reddy on the judgment of this Court in Alembic Chemical Works Co. Ltd. v. Commissioner ofGujarat, 1989(177) ITR 377 is wholly inappropriate. Therewas acquired to produce higher yield andof high yielding strain of penicillin. Thewas already engaged in manufacturing of antibiotics including penicillin before it acquired theTherefore, it was a case of a running company acquiringto increase its yield and quality of its product and for the better conduct and improvement of the existing business and therefore the amount spent on acquiringwas held to be revenue expenditure. | 0 | 1,933 | 276 | ### 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:
Assam, 44 ITR 578 and of Kerala in Kelpunj Enterprises v. Commissioner of Income-tax, Kerala, 108 ITR 249 , which we approve, we confirm the answer to the first question recorded by the High Court. 4. Regarding the second question Mr. Reddy vehemently contended that the amount of Rs. 2,35,000- was paid by the appellant to the foreign collaborator to acquire the know-how so it was revenue expenditure and ought to have been so held by the High Court. Mr. Shukla argued that know-how etc. are contributed by Eimco towards its share of the capital and that no amount was paid by the appellant to Eimco, allotment of shares of Eimco by the appellant could not be treated as expenditure incurred by it for purchase of know-how. To appreciate the contention of Mr. Reddy, it may be necessary to quote Section 37(1) of the Income Tax Act here : "37. General - (1) Any expenditure (not being expenditure of the nature described in Sections 30 to 36 * * * and not being in the nature of capital expenditure or personal expenses of the assessee), laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed to computing the income chargeable under the head "Profits and gains of business or profession." 5. A plain reading of the above provision makes it clear that it is a residuary provision and allows an expenditure, not covered under Sections 30 to 36 in computing the income chargeable under head "profits and gains of business or profession", on fulfilment of the other requirements, namely, (i) the expenditure should not be in the nature of capital expenditure or personal expenses of the assessee; (ii) it should have been laid out or expended wholly and exclusively for the purposes of the business or profession; (iii) it should have been expended in the previous year.6. The question is whether the amount in question can be treated as expenditure and whether it was expended wholly and exclusively for the purpose of the business of the appellant. 7. In support of his contention that Rs. 2,35,000- were spent for purchase of technical know-how, so it is a revenue expenditure. Mr. Reddy relied upon a letter addressed by the Vice-President of the Eimco Corporation to the Director of K.C.P. Ltd. on April 14, 1965. The relevant excerpts of the said letter read as under :- "In general, we agree that the organisation will follow that set forth in the Memorandum and Articles of Association of the K.C.P. - Tives Lille - Cail Private Limited (a corporation of India), but with the following specific provisions to which we have agreed.1. The Company will be organised and headquartered in India as an Indian Corporation with broad corporate powers.2. The name of the company will be EIMCO-K.C.P. Private Ltd.3. There will be two subscribers for one share each - each partner will designate one subscriber.4. Authorised capital is to be Rs. 10,000,000- consisting of 1,000,00 equity shares of Rs. 10- each.5. Each partner will subscribe to Rs. 470,000; of this amount each will initially pay in Rs. 280,000 or equivalent after approval by the Government of India and before commencement of operation; and the balance of the amount subscribed will be contributed by each partner, in equal amounts, as and if required for operation of the business.6. The amount initially paid in by Eimco will primarily consist of Eimcos know-how, valued at Rs. 235,000 and cash. Know-how consists of the right and licence to manufacture existing Eimco Sedimentation and filtration equipment, along with the supply of and or the agreement to supply general technical data including manufacturing drawings in the form as used and possessed by Eimco, relating to the sales, application, selection, material requirements, manufacture, installation and operation of such equipment, including but not limited to test procedures, instruction manuals, technical manuals, general arrangement and detail drawings, flow charts, research and development reports, sales manuals and bulletins, operating reports on existing installations and installation and operation manuals. The balance of the initial investment will be in cash." 8. A plain reading of the letter indicates that Eimco and K.C.P. agreed to float the appellant company with authorised capital of Rs. 10,000,000- consisting of 1,000,000 equity shares of Rs. 10- each. Each of them agreed to subscribe Rs, 4,70,000- out of which the amount equivalent to Rs, 2,80,000- was to be paid (after approval by the Government of India and before the commencement of operation). Eimco valued the know-how etc. at a sum of Rs. 2,35,000- and paid the balance in cash towards its contribution.9. What in effect was done by the appellant in allotting equity shares of Rs, 2,80,000- to Eimco, was to reimburse the contribution of Eimco by way of know-how, which can never be treated as expenditure much less an expenditure laid out wholly and exclusively for purpose of the business of the appellant. It is not a case where after the incorporation, the appellant-company in the course of the carrying on its business, spent the said amount for acquiring any asset. Reliance by Mr. Reddy on the judgment of this Court in Alembic Chemical Works Co. Ltd. v. Commissioner of Income-Tax, Gujarat, 1989(177) ITR 377 is wholly inappropriate. There know-how was acquired to produce higher yield and sub-culture of high yielding strain of penicillin. The assessee-company was already engaged in manufacturing of antibiotics including penicillin before it acquired the know-how. Therefore, it was a case of a running company acquiring know-how to increase its yield and quality of its product and for the better conduct and improvement of the existing business and therefore the amount spent on acquiring know-how was held to be revenue expenditure. 10. In our view, the High Court has rightly concluded that allotment of equity share by the appellant to Eimco, in the circumstance of the case, cannot be termed as `expenditure much less revenue expenditure and rightly answered the question referred to it against the appellant-assessee. 11.
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0
### Explanation:
8. A plain reading of the letter indicates that Eimco and K.C.P. agreed to float the appellant company with authorised capital of Rs. 10,000,000consisting of 1,000,000 equity shares of Rs. 10each. Each of them agreed to subscribe Rs, 4,70,000out of which the amount equivalent to Rs, 2,80,000was to be paid (after approval by the Government of India and before the commencement of operation). Eimco valued theetc. at a sum of Rs. 2,35,000and paid the balance in cash towards its contribution.9. What in effect was done by the appellant in allotting equity shares of Rs, 2,80,000to Eimco, was to reimburse the contribution of Eimco by way ofwhich can never be treated as expenditure much less an expenditure laid out wholly and exclusively for purpose of the business of the appellant. It is not a case where after the incorporation, thein the course of the carrying on its business, spent the said amount for acquiring any asset. Reliance by Mr. Reddy on the judgment of this Court in Alembic Chemical Works Co. Ltd. v. Commissioner ofGujarat, 1989(177) ITR 377 is wholly inappropriate. Therewas acquired to produce higher yield andof high yielding strain of penicillin. Thewas already engaged in manufacturing of antibiotics including penicillin before it acquired theTherefore, it was a case of a running company acquiringto increase its yield and quality of its product and for the better conduct and improvement of the existing business and therefore the amount spent on acquiringwas held to be revenue expenditure.
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SHREE CHOUDHARY TRANSPORT COMPANY Vs. INCOME TAX OFFICER | question were transported through the trucks employed by the appellant but, there was no privity of contract between the truck operators/owners and the said consignor company. Indisputably, it was the responsibility of the appellant to transport the goods (cement) of the company; and how to accomplish this task of transportation was a matter exclusively within the domain of the appellant. Hence, hiring the services of truck operators/owners for this purpose could have only been under a contract between the appellant and the said truck operators/owners. Whether such a contract was reduced into writing or not carries hardly any relevance. In the given scenario and set up, the said truck operators/owners answered to the description of sub-contractor for carrying out the whole or part of the work undertaken by the contractor (i.e., the appellant) for the purpose of Section 194C(2) of the Act. 15.2. The suggestions on behalf of the appellant that the said truck operators/owners were not bound to supply the trucks as per the need of the appellant nor the freight payable to them was pre-determined, in our view, carry no meaning at all. Needless to observe that if a particular truck was not engaged, there existed no contract but, when any truck got engaged for the purpose of execution of the work undertaken by the appellant and freight charges were payable to its operator/owner upon execution of the work, i.e., transportation of the goods, all the essentials of making of a contract existed; and, as aforesaid, the said truck operator/owner became a sub-contractor for the purpose of the work in question. The AO, CIT(A) and the ITAT have concurrently decided this issue against the appellant with reference to the facts of the case, particularly after appreciating the nature of contract of the appellant with the consignor company as also the nature of dealing of the appellant, while holding that the truck operators/owners were engaged by the appellant as sub-contractors. The same findings have been endorsed by the High Court in its short order dismissing the appeal of the appellant. We are unable to find anything of error or infirmity in these findings. 15.3. The decision of Delhi High Court in the case of Hardarshan Singh (supra), in our view, has no application whatsoever to the facts of the present case. The assessee therein, who was in the business of transporting goods, had four trucks of his own and was also acting as a commission agent by arranging for transportation through other transporters. As regards the income of assessee relatable to transportation through other transporters, it was found that the assessee had merely acted as a facilitator or as an intermediary between the two parties (i.e., the consignor company and the transporter) and had no privity of contract with either of such parties inasmuch as he only collected freight charges from the clients who intended to transport their goods through other transporters; and the amount thus collected from the clients was paid to those transporters by the assessee while deducting his commission. Looking to the nature of such dealings, the said assessee was held to be not the person responsible for making payments in terms of Section 194C of the Act and hence, having no obligation to deduct tax at source. In contradistinction to the said case of Hardarshan Singh, the appellant of the present case was not acting as a facilitator or intermediary between the consignor company and the truck operators/owners because those two parties had no privity of contract between them. The contract of the company, for transportation of its goods, had only been with the appellant and it was the appellant who hired the services of the trucks. The payment made by the appellant to such a truck operator/owner was clearly a payment made to a sub-contractor. 15.4. Though the decision of this Court in the case of Palam Gas Service (supra) essentially relates to the interpretation of Section 40(a)(ia) of the Act and while the relevant aspects concerning the said provision shall be examined in the next question but, for the present purpose, the facts of that case could be usefully noticed, for being akin to the facts of the present case and being of apposite illustration. Therein, the assessee was engaged in the business of purchase and sale of LPG cylinders whose main contract for carriage of LPG cylinders was with Indian Oil Corporation, Baddi wherefor, the assessee received freight payments from the principal. The assessee got the transportation of LPG done through three persons to whom he made the freight payments. The Assessing Officer held that the assessee had entered into a sub-contract with the said three persons within the meaning of Section 194C of the Act. Such findings of AO were concurrently upheld up to the High Court and, after interpretation of Section 40(a)(ia), this Court also approved the decision of the High Court while dismissing the appeal with costs. Learned counsel for the appellant has made an attempt to distinguish the nature of contract in Palam Gas Service by suggesting that therein, the assessees sub-contractors were specific and identified persons with whom the assessee had entered into contract whereas the present appellant was free to hire the service of any truck operator/owner and, in fact, the appellant hired the trucks only on need basis. In our view, such an attempt of differentiation is totally baseless and futile. Whether the appellant had specific and identified trucks on its rolls or had been picking them up on freelance basis, the legal effect on the status of parties had been the same that once a particular truck was engaged by the appellant on hire charges for carrying out the part of work undertaken by it (i.e., transportation of the goods of the company), the operator/owner of that truck became the sub-contractor and all the requirements of Section 194C came into operation. 15.5. Thus, we have no hesitation in affirming the concurrent findings in regard to the applicability of Section 194C to the present case. | 1[ds]15. In order to maintain that the appellant was under no obligation to make any deduction of tax at source, it has been argued that there was no oral or written contract of the appellant with the truck operators/owners, whose vehicles were engaged to execute the work of transportation of the goods only on freelance and need basis. The submission has been that the question of TDS under Section 194C(2) would have arisen only if the payment was made to a sub-contractor and that too, in pursuance of a contract for the purpose of carrying whole or any part of work undertaken by the contractor . In our view, the submissions so made remain entirely baseless.15.1. The nature of contract entered into by the appellant with the consignor company makes it clear that the appellant was to transport the goods (cement) of the consignor company; and in order to execute this contract, the appellant hired the transport vehicles, namely, the trucks from different operators/owners. The appellant received freight charges from the consignor company, who indeed deducted tax at source while making such payment to the appellant. Thereafter, the appellant paid the charges to the persons whose vehicles were hired for the purpose of the said work of transportation of goods. Thus, the goods in question were transported through the trucks employed by the appellant but, there was no privity of contract between the truck operators/owners and the said consignor company. Indisputably, it was the responsibility of the appellant to transport the goods (cement) of the company; and how to accomplish this task of transportation was a matter exclusively within the domain of the appellant. Hence, hiring the services of truck operators/owners for this purpose could have only been under a contract between the appellant and the said truck operators/owners. Whether such a contract was reduced into writing or not carries hardly any relevance. In the given scenario and set up, the said truck operators/owners answered to the description of sub-contractor for carrying out the whole or part of the work undertaken by the contractor (i.e., the appellant) for the purpose of Section 194C(2) of the Act.15.2. The suggestions on behalf of the appellant that the said truck operators/owners were not bound to supply the trucks as per the need of the appellant nor the freight payable to them was pre-determined, in our view, carry no meaning at all. Needless to observe that if a particular truck was not engaged, there existed no contract but, when any truck got engaged for the purpose of execution of the work undertaken by the appellant and freight charges were payable to its operator/owner upon execution of the work, i.e., transportation of the goods, all the essentials of making of a contract existed; and, as aforesaid, the said truck operator/owner became a sub-contractor for the purpose of the work in question. The AO, CIT(A) and the ITAT have concurrently decided this issue against the appellant with reference to the facts of the case, particularly after appreciating the nature of contract of the appellant with the consignor company as also the nature of dealing of the appellant, while holding that the truck operators/owners were engaged by the appellant as sub-contractors. The same findings have been endorsed by the High Court in its short order dismissing the appeal of the appellant. We are unable to find anything of error or infirmity in these findings.15.3. The decision of Delhi High Court in the case of Hardarshan Singh (supra), in our view, has no application whatsoever to the facts of the present case. The assessee therein, who was in the business of transporting goods, had four trucks of his own and was also acting as a commission agent by arranging for transportation through other transporters. As regards the income of assessee relatable to transportation through other transporters, it was found that the assessee had merely acted as a facilitator or as an intermediary between the two parties (i.e., the consignor company and the transporter) and had no privity of contract with either of such parties inasmuch as he only collected freight charges from the clients who intended to transport their goods through other transporters; and the amount thus collected from the clients was paid to those transporters by the assessee while deducting his commission. Looking to the nature of such dealings, the said assessee was held to be not the person responsible for making payments in terms of Section 194C of the Act and hence, having no obligation to deduct tax at source. In contradistinction to the said case of Hardarshan Singh, the appellant of the present case was not acting as a facilitator or intermediary between the consignor company and the truck operators/owners because those two parties had no privity of contract between them. The contract of the company, for transportation of its goods, had only been with the appellant and it was the appellant who hired the services of the trucks. The payment made by the appellant to such a truck operator/owner was clearly a payment made to a sub-contractor.15.4. Though the decision of this Court in the case of Palam Gas Service (supra) essentially relates to the interpretation of Section 40(a)(ia) of the Act and while the relevant aspects concerning the said provision shall be examined in the next question but, for the present purpose, the facts of that case could be usefully noticed, for being akin to the facts of the present case and being of apposite illustration. Therein, the assessee was engaged in the business of purchase and sale of LPG cylinders whose main contract for carriage of LPG cylinders was with Indian Oil Corporation, Baddi wherefor, the assessee received freight payments from the principal. The assessee got the transportation of LPG done through three persons to whom he made the freight payments. The Assessing Officer held that the assessee had entered into a sub-contract with the said three persons within the meaning of Section 194C of the Act. Such findings of AO were concurrently upheld up to the High Court and, after interpretation of Section 40(a)(ia), this Court also approved the decision of the High Court while dismissing the appeal with costs. Learned counsel for the appellant has made an attempt to distinguish the nature of contract in Palam Gas Service by suggesting that therein, the assessees sub-contractors were specific and identified persons with whom the assessee had entered into contract whereas the present appellant was free to hire the service of any truck operator/owner and, in fact, the appellant hired the trucks only on need basis. In our view, such an attempt of differentiation is totally baseless and futile. Whether the appellant had specific and identified trucks on its rolls or had been picking them up on freelance basis, the legal effect on the status of parties had been the same that once a particular truck was engaged by the appellant on hire charges for carrying out the part of work undertaken by it (i.e., transportation of the goods of the company), the operator/owner of that truck became the sub-contractor and all the requirements of Section 194C came into operation.15.5. Thus, we have no hesitation in affirming the concurrent findings in regard to the applicability of Section 194C to the present case.Question No.2.16. While taking up the question of interpretation of Section 40(a)(ia), it may be usefully noticed that Section 194C is placed in Chapter XVII of the Act on the subject Collection and Recovery of Tax; and specific provisions are made in the Act to ensure that the requirements of Section 194C are met and complied with, while also providing for the consequences of default. As noticed, Section 200 specifically provides for the duties of the person deducting tax to deposit and submit the statement to that effect. The consequences of failure to deduct or pay the tax are then provided in Section 201 of the Act which, as noticed, puts such defaulting person in the category of the assessee in default in respect of the tax apart from other consequences which he or it may incur. The aspect relevant for the present purpose is that Section 40 of the Act, and particularly the provision contained in sub-clause (ia) of clause (a) thereof, indeed provides for one of such consequences.16.2. In the overall scheme of the provisions relating to collection and recovery of tax, it is evident that the object of legislature in introduction of the provisions like sub-clause (ia) of clause (a) of Section 40 had been to ensure strict and punctual compliance of the requirement of deducting tax at source. In other words, the consequences, as provided therein, had the underlying objective of ensuring compliance of the requirements of TDS. It is also noteworthy that in the proviso added to clause (ia) of Section 40(a) of the Act, it was provided that where in respect of the sum referable to TDS requirement, tax has been deducted in any subsequent year, or has been deducted during the previous year but paid in any subsequent year after the expiry of the time prescribed in Section 200(1), such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid.16.3. The purpose and coverage of this provision as also protection therein have been tersely explained by this Court in the case of Calcutta Export Company (supra), which has been cited by learned counsel for the appellant in support of another limb of submissions which we shall be dealing with in the next question. For the present purpose, we may notice the relevant observations of this Court in Calcutta Export Company as regards Section 40(a)(ia) of the Act as follows (at p. 662 of ITR):-. Taking up the question as to whether disallowance under Section 40(a)(ia) of the Act is confined to the amount payable and not to the amount alreadywe find that these aspects of interpretation do not require much dilation in view of the ratio of the decision of this Court in the case of Palam Gas Service (supra).16.5. In fact, the decision in Palam Gas Service (supra) is a direct answer to all the contentions urged on behalf of the appellant in the present case. In that case, this Court approved the views of Punjab and Haryana High Court in the case of P.M.S. Diesels and Ors. v. Commissioner of Income-Tax: (2015) 374 ITR 562 as regards mandatory nature of the provisions relating to the liability to deduct tax at source in the following words (at pp. 306-308 of ITR):-11. The Punjab & Haryana High Court in P.M.S. Diesels v. CIT [2015] 374 ITR 562 (P&H), has held these provisions to be mandatory in nature with the following observations:The liability to deduct tax at source under the provisions of Chapter XVII is mandatory. A person responsible for paying any sum is also liable to deposit the amount in the Government account. All the sections in Chapter XVII-B require a person to deduct the tax at source at the rates specified therein. The requirement in each of the sections is preceded by the word shall. The provisions are, therefore, mandatory. There is nothing in any of the sections that would warrant our reading the word shall as may. The point of time at which the deduction is to be made also establishes that the provisions are mandatory. For instance, under section 194C, a person responsible for paying the sum is required to deduct the tax at the time of credit of such sum to the account of the contractor or at the time of the payment thereof. ......12. While holding the aforesaid view, the Punjab and Haryana High Court discussed the judgments of the Calcutta and Madras High Courts, which had taken the same view, and concurred with the same, which is clear from the following discussion contained in the judgment of the Punjab and Haryana High Court:A Division Bench of the Calcutta High Court in CIT v. Crescent Export Syndicate [2013] 216 Taxman 258 (Cal) held :13. …The term shall used in all these sections make it clear that these are mandatory provisions and applicable to the entire sum contemplated under the respective sections. These sections do not give any leverage to the assessee to make the payment without making TDS. On the contrary, the intention of the Legislature is evident from the fact that timing of deduction of tax is earliest possible opportunity to recover tax, either at the time of credit in the account of payee or at the time of payment to payee, whichever is earlier.Ms. Dhugga invited our attention to a judgment of the Division Bench of the Madras High Court in Tube Investments of India Ltd. v. Asst. CIT (TDS) [2010] 325 ITR 610 (Mad). The Division Bench referred to the statistics placed before it by the Department which disclosed that TDS collection had augmented the revenue. The gross collection of advance tax, surcharge, etc. was Rs 2,75,857.70 crores in the financial year 2008-09 of which the TDS component alone constituted Rs 1,30,470.80 crores. The Division Bench observed that introduction of section 40(a)(ia) had achieved the objective of augmenting the TDS to a substantial extent. The Division Bench also observed that when the provisions and procedures relating to TDS are scrupulously applied, it also ensured the identification of the payees thereby confirming the network of assessees and that once the assessees are identified it would enable the tax collection machinery to bring within its fold all such persons who are liable to come within the network of taxpayers. These objects also indicate the legislative intent that the requirement of deducting tax at source is mandatory.The liability to deduct tax at source is, therefore, mandatory.13. The aforesaid interpretation of sections 194C conjointly with section 200 and rule 30(2) is unblemished and without any iota of doubt. We, thus, give our imprimatur to the view taken…...(emphasis in bold supplied)16.5.1. Having said that deducting tax at source is obligatory, this Court proceeded to deal with the issue as to whether the word payable in Section 40(a)(ia) would cover only those cases where the amount is payable and not where it has actually been paid. This Court took note of the exhaustive interpretation of various aspects related with this issue by the Punjab and Haryana High Court in the case of P.M.S. Diesels (supra) as also by the Calcutta High Court in the case of Commissioner of Income-Tax, Kolkata- XI v. Crescent Export Syndicate: (2013) 216 Taxman 258 ; and while approving the same, this Court held, as regards implication and connotation of the expression payable used in this provision, as follows (at p. 310 of ITR):-15. We approve the aforesaid view as well. As a fortiori, it follows that section 40(a)(ia) covers not only those cases where the amount is payable but also when it is paid. In this behalf, one has to keep in mind the purpose with which section 40 was enacted and that has already been noted above. We have also to keep in mind the provisions of sections 194C and 200. Once it is found that the aforesaid sections mandate a person to deduct tax at source not only on the amounts payable but also when the sums are actually paid to the contractor, any person who does not adhere to this statutory obligation has to suffer the consequences which are stipulated in the Act itself. Certain consequences of failure to deduct tax at source from the payments made, where tax was to be deducted at source or failure to pay the same to the credit of the Central Government, are stipulated in section 201 of the Act. This section provides that in that contingency, such a person would be deemed to be an assessee in default in respect of such tax. While stipulating this consequence, section 201 categorically states that the aforesaid sections would be without prejudice to any other consequences which that defaulter may incur. Other consequences are provided under section 40(a)(ia) of the Act, namely, payments made by such a person to a contractor shall not be treated as deductible expenditure. When read in this context, it is clear that section 40(a)(ia) deals with the nature of default and the consequences thereof. Default is relatable to Chapter XVII-B (in the instant case sections 194C and 200, which provisions are in the aforesaid Chapter). When the entire scheme of obligation to deduct the tax at source and paying it over to the Central Government is read holistically, it cannot be held that the word payable occurring in section 40(a)(ia) refers to only those cases where the amount is yet to be paid and does not cover the cases where the amount is actually paid. If the provision is interpreted in the manner suggested by the appellant herein, then even when it is found that a person, like the appellant, has violated the provisions of Chapter XVII-B (or specifically sections 194C and 200 in the instant case), he would still go scot-free, without suffering the consequences of such monetary default in spite of specific provisions laying down these consequences…...(emphasis in bold supplied)16.6. We may profitably observe that in the case of P.M.S. Diesels (supra), the Punjab and Haryana High Court had extensively dealt with myriad features of Section 40(a)(ia) of the Act, including the term payable used therein as also the proviso thereto; and expounded on the entire gamut of this provision while making reference to Finance (No. 2) Bill of 2004 introducing the provision and while also drawing support from the views expressed by Calcutta High Court in the case of Crescent Export Syndicate (supra). As regards the interpretation of the term payable, it was observed in P.M.S. Diesels as under (at pp. 574-575 of ITR):-21. Section 40(a)(ia), therefore, applies not merely to assessees following the mercantile system but also to assessees following the cash system.If this view is correct and indeed we must proceed on the footing that it is, it goes a long way in indicating the fallacy in the appellants main contention, namely, if the payments have already been made by the assessee to the payee/contracting party, the provisions of section 40(a)(ia) would not be attracted even if the tax is not deducted and/or paid over to the Government account.22. Section 40(a)(ia) refers to the nature of the default and the consequence of the default. The default is a failure to deduct the tax at source under Chapter XVII-B or after deduction the failure to pay over the same to the Government account. The term payable only indicates the type or nature of the payments by the assessees to the persons/payees referred to in section 40(a)(ia), such as, contractors. It is not in respect of every payment to a payee referred to in Chapter XVII-B that an assessee is bound to deduct tax. There may be payments to persons referred to in Chapter XVII-B, which do not attract the provisions of Chapter XVII-B. The consequences under section 40(a)(ia) would only operate on account of failure to deduct tax where the tax is liable to be deducted under the provisions of the Act and in particular Chapter XVII-B thereof. It is in that sense that the term payable has been used. The term payable is descriptive of the payments which attract the liability to deduct tax at source. It does not categorize defaults on the basis of when the payments are made to the payees of such amounts which attract the liability to deduct tax at source.(emphasis in bold supplied)16.7. We find the above-extracted observations and reasonings, which have already been approved by this Court in Palam Gas Service (supra), to be precisely in accord with the scheme and purpose of Section 40(a)(ia) of the Act; and are in complete answer to the contentions urged by the learned counsel for the appellant. It is ex facie evident that the term payable has been used in Section 40(a)(ia) of the Act only to indicate the type or nature of the payments by the assessees to the payees referred therein. In other words, the expression payable is descriptive of the payments which attract the liability for deducting tax at source and it has not been used in the provision in question to specify any particular class of default on the basis as to whether payment has been made or not. The semantical suggestion by the learned counsel for the appellant, that this expression payable be read in contradistinction to the expression paid, sans merit and could only be rejected. In a nutshell, while respectfully following Palam Gas Service (supra), we could only iterate our approval to the interpretation by the Punjab and Haryana High Court in P.M.S. Diesels (supra).We are unable to find substance in any of these contentions. The decision of Co-ordinate Bench in Palam Gas Service (supra) on the core question of law is equally binding on this Bench and could be doubted only if the view, as taken, is shown to be not in conformity with any binding decision of the Larger Bench or any statutory provisions or any other reason of the like nature. We find none. In fact, a close look at the decision of P.M.S. Diesels (supra), which has been totally approved by this Court in Palam Gas Service, makes it clear that therein, every aspect of the matter, from a wide range of angles, was examined by the Punjab and Haryana High Court while drawing support from the decisions of other High Courts, particularly that of the Calcutta High Court in the case of Crescent Export Syndicate (supra).16.9. We are in respectful agreement with the observations in Palam Gas Service that the enunciations in P.M.S. Diesels had been of correct interpretation of the provisions contained in Section 40(a)(ia) of the Act. The decision in Palam Gas Service covers the entire matter and the said decision, in our view, does not require any reconsideration. That being the position, the contention urged on behalf of the appellant that disallowance under Section 40(a)(ia) does not relate to the amount already paid stands rejected.16.10. Another contention in regard to Section 40(a)(ia) of the Act, that its scope cannot be decided on the basis of Section 194C, has only been noted to be rejected. The interplay of these provisions is not far to seek where Section 40(a)(ia) is not a stand-alone provision but provides one of those additional consequences as indicated in Section 201 of the Act for default by a person in compliance of the requirements of the provisions contained in Part B of Chapter XVII of the Act. The scheme of these provisions makes it clear that the default in compliance of the requirements of the provisions contained in Part B of Chapter XVII of the Act (that carries Sections 194C, 200 and 201) leads, inter alia, to the consequence of Section 40(a)(ia) of the Act. Hence, the contours of Section 40(a)(ia) of the Act could be aptly defined only with reference to the requirements of the provisions contained in Part B of Chapter XVII of the Act, including Sections 194C, 200 and 201. Putting it differently, when the obligation of Section 194C of the Act is the foundation of the consequence provided by Section 40(a)(ia) of the Act, reference to the former is inevitable in interpretation of the latter.16.11. In view of the above, reference to the definition of the term paid in Section 43(2) of the Act is of no assistance to the appellant. Similarly, the observations in the case of J.K. Synthetics (supra), as regards the difference in connotation of the expressions payable and paid, in the context of liability to pay interest on the tax payable under the Rajasthan Sales Tax Act, 1954, has no co-relation whatsoever to the present case. Further, when it is found that the process of interpretation of Section 40(a)(ia) of the Act in P.M.S. Diesels (supra), as approved by this Court in Palam Gas Service (supra), had been with due application of the relevant principles, reference to the decision in the case of Institute of Chartered Accountants of India (supra), on the general principles of interpretation, does not advance the case of the appellant in any manner.Question No.317. Quite conscious of the position that the decision of this Court in Palam Gas Service (supra) practically covers the substance of present matter against the assessee, learned counsel for the assessee-appellant has made a few alternative attempts to argue against the disallowance in question.. Before proceeding further, it appears apposite to observe, as indicated in paragraph 7.3 hereinbefore, that in the copy of order passed by ITAT in this case, there is obvious typographical error on the date of coming into force of the amendment to Section 40 of the Act of 1961 by the Finance (No.2) Act, 2004 inasmuch as the said amendment was made applicable with effect from 01.04.2005 and not 01.04.2004, as appearing the copy of the order of ITAT. However, this error is not of material bearing because the amendment in question was applicable from and for the assessment year 2005-2006, for the reasons occurring infra.17.2. Reverting to the contentions urged in this case, there is no doubt that in PIU Ghosh (supra), the Calcutta High Court, indeed, took the view which the learned counsel for the appellant has canvassed before us. The Calcutta High Court observed that the said Finance (No.2) Act, 2004 got presidential assent on 10.09.2004 and it was provided that the provision in question shall stand inserted with effect from 01.04.2005. According to the Calcutta High Court, the assessee could not have foreseen prior to 10.09.2004 that any amount paid to a contractor without deducting tax at source was likely to become not deductible in computation of income under Section 40 and that the legislature, being conscious of the likely predicament, provided that the provision shall become operative from 01.04.2005. The High Court further proceeded to observe that any other interpretation would amount to punishing the assessee for no fault of his. The High Court further observed that Section 11 of the said Finance Act, inserting sub-clause (ia), did not provide that the same was to become effective from the assessment year 2005-2006. We may usefully reproduce the opinion of the Calcutta High Court in the case of PIU Ghosh, as under (at p. 326 of ITR):-9. Admittedly, the Finance Act, 2004 got presidential assent on September 10, 2004. The assessee could not have foreseen prior to September 10, 2004 that any amount paid to a contractor without deducting tax at source was likely to become not deductible under section 40. It is difficult to assume that the Legislature was not aware or did not foresee the aforesaid predicament. The Legislature therefore provided that the Act shall become operative on April 1, 2005. Any other interpretation shall amount to punishing the assessee for no fault of his following the judgment in the case of Hindustan Electro Graphites Ltd. (supra).10. On top of that, section 4 relied upon by Mr. Agarwal merely provides for an enactment as regards rate of tax to be charged in any particular assessment year which has no application to the case before us. Section 11 of the Finance (No. 2) Act, 2004 by which sub-clause (ia) was added to section 40(a) of the Income-tax Act does not provide that the same was to become effective from the assessment year 2005-06. It merely says it shall become effective on April 1, 2005 which for reasons already discussed should mean to refer to the financial year. There is, as such, no scope for any ambiguity nor is there any scope for confusion…...It appears, however, that the amount of deduction in the said case was only a sum of Rs. 4,30,386/- and obviously, the net tax effect in that case, decided on 12.07.2016, was on the lower side. In any case, the said decision cannot be treated as final declaration of law on the subject merely because the same has not been appealed against. Having examined the law applicable, with respect, we find it difficult to approve the above-quoted opinion of the Calcutta High Court, particularly when it does not appear standing in conformity with the scheme of assessment of income tax under the Act of 1961 and where the High Court seems to have not noticed the proviso to clause (ia) of Section 40(a) of the Act forming the part of the amendment in question.17.4. It needs hardly any detailed discussion that in income tax matters, the law to be applied is that in force in the assessment year in question, unless stated otherwise by express intendment or by necessary implication. As per Section 4 of the Act of 1961, the charge of income tax is with reference to any assessment year, at such rate or rates as provided in any central enactment for the purpose, in respect of the total income of the previous year of any person. The expression previous year is defined in Section 3 of the Act to mean the financial year immediately preceding the assessment year; and the expression assessment year is defined in clause (9) of Section 2 of the Act to mean the period of twelve months commencing on the 1 st day of April every year.17.6. We need not multiply on the case law on the subject as the principles aforesaid remain settled and unquestionable. Applying these principles to the case at hand, we are clearly of the view that the provision in question, having come into effect from 01.04.2005, would apply from and for the assessment year 2005-2006 and would be applicable for the assessment in question. Putting it differently, the legislature consciously made the said sub-clause (ia) of Section 40(a) of the Act effective from 01.04.2005, meaning thereby that the same was to be applicable from and for the assessment year 2005-2006; and neither there had been express intendment nor any implication that it would apply only from the financial year 2005-2006.17.7. The observations of Calcutta High Court in the case of PIU Ghosh (supra) as regards the likely prejudice to an assessee in relation to the financial year 2004-2005, in our view, do not relate to any legal grievance or legal prejudice. The requirement of deducting tax at source was already existing as per Section 194C of the Act and it was the bounden duty of the appellant to make such deduction of TDS and to make over the same to the revenue. Section 201 was also in existence which made it clear that default in making deduction in accordance with the provisions of the Act would make the appellant an assessee in default. The appellant cannot suggest that even if the obligation of TDS on the payments made by him was existing by virtue of Section 194C(2), he would have honoured such an obligation only if being aware of the drastic consequence of default that such payment shall not be deducted for the purpose of drawing up the assessment.17.7.1. Apart from the above, significant it is to notice that by the amendment in question, clause (ia) was added to Section 40(a) of the Act with a proviso to the effect that where, in respect of the sum referable to TDS requirement, tax has been deducted in any subsequent year, or has been deducted during the previous year but paid in any subsequent year after expiry of the time prescribed in Section 200(1), such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid. The proviso effectively took care of the case of any bonafide assessee who would earnestly comply with the requirement of deducting the tax at source. It is evident that the said proviso has totally escaped the attention of Calcutta High Court in the case of PIU Ghosh (supra). In fact, the relaxation by way of the proviso/s to Section 40(a)(ia) of the Act had further been modulated by way of various subsequent amendments to further mitigate the hardships of bonafide assessees, as noticed hereafter later. Suffice it to observe for the present purpose that the said decision in PIU Ghosh cannot be regarded as correct on law.17.8. In fact, if the contention of learned counsel for the appellant read with the proposition in PIU Ghosh (supra) is accepted and the said sub-clause (ia) of Section 40(a) of the Act is held applicable only from the financial year 2005-2006, the result would be that this provision would apply only from the assessment year 2006-2007. Such a result is neither envisaged nor could be countenanced. Hence, the contention that sub-clause (ia), of clause (a) of Section 40 of the Act would apply only from the financial year 2005-2006 and cannot apply to the present case pertaining to the financial year 2004-2005 stands rejected.18. The supplemental submission that in any case, disallowance cannot be applied to the payments already made prior to 10.09.2004, the date on which the Finance (No.2) Act, 2004 received the assent of the President of India, remains equally baseless. The said date of assent of the President of India to Finance (No.2) Act, 2004 is not the date of applicability of the provision in question, for the specific date having been provided as 01.04.2005. Of course, the said date relates to the assessment year commencing from 01.04.2005 (i.e., assessment year 2005-2006).18.1. Even if it be assumed, going by the suggestions of the appellant, that the requirements of Section 40(a)(ia) became known on 10.09.2004, the appellant could have taken all the requisite steps to make deductions or, in any case, to make payment of the TDS amount to the revenue during the same financial year or even in the subsequent year, as per the relaxation available in the proviso to Section 40(a)(ia) of the Act but, the appellant simply avoided his obligation and attempted to suggest that it had no liability to deduct the tax at source at all. Such an approach of the appellant, when standing at conflict with law, the consequence of disallowance under Section 40(a)(ia) of the Act remains inevitable.This line of argument has been grafted with reference to the decision in Calcutta Export Company (supra) wherein, another amendment of Section 40(a)(ia) by the Finance Act of 2010 was held by this Court to be retrospective in operation. The submission so made is not only baseless but is bereft of any logic. Neither the amendment made by the Finance (No.2) Act, 2014 could be stretched anterior the date of its substitution so as to reach the assessment year 2005-2006 nor the said decision in Calcutta Export Company has any correlation with the case at hand or with the amendment made by the Finance (No.2) Act of 2014.19.2. The aforesaid amendment by the Finance (No.2) Act of 2014 was specifically made applicable w.e.f. 01.04.2015 and clearly represents the will of the legislature as to what is to be deducted or what percentage of deduction is not to be allowed for a particular eventuality, from the assessment year 2015-2016.19.3. On the other hand, in the case of Calcutta Export Company (supra), this Court noticed the aforesaid two amendments to Section 40(a)(ia) of the Act by the Finance Act, 2008 and by the Finance Act, 2010, which were intended to deal with procedural hardship likely to be faced by the bonafide tax payer, who had deducted tax at source but could not make deposit within the prescribed time so as to claim deduction. In paragraph 17 of judgment in Calcutta Export Company, this Court took note of the case of genuine hardship, particularly of the assessees who had deducted tax at source in thelast month of previous year; and observed in paragraph 18 that the said amendment of the year 2008 was brought about with a view to mitigate such hardship. After reproducing the said amendment of the year 2008 and after noticing its retrospective operation, this Court delved into the position obtaining after 2008, where still remained one class of assessees who could not claim deduction for the TDS amount in the previous year in which the tax was deducted and who could claim benefit of such deduction in the next year only; and, after finding that the amendment of the year 2010 was intended to remedy this position, held that the said amendment, being curative in nature, is required to be given retrospective operation that is, from the date of insertion of Section 40(a)(ia).19.5. A bare look at the extraction aforesaid makes it clear that what this Court has held as regards retrospective operation is that the amendment of the year 2010, being curative in nature, would be applicable from the date of insertion of the provision in question i.e., sub-clause (ia) of Section 40(a) of the Act. This being the position, it is difficult to find any substance in the argument that the principles adopted by this Court in the case of Calcutta Export Company (supra) dealing with curative amendment, relating more to the procedural aspects concerning deposit of the deducted TDS, be applied to the amendment of the substantive provision by the Finance (No.2) Act, 2014.19.6. We may in the passing observe that the assessee-appellant was either labouring under the mistaken impression that he was not required to deduct TDS or under the mistaken belief that the methodology of splitting a single payment into parts below Rs. 20,000/- would provide him escape from the rigour of the provisions of the Act providing for disallowance. In either event, the appellant had not been a bonafide assessee who had made the deduction and deposited it subsequently. Obviously, the appellant could not have derived the benefits that were otherwise available by the curative amendments of 2008 and 2010. Having defaulted at every stage, the attempt on the part of assessee-appellant to seek some succor in the amendment of Section 40(a)(ia) of the Act by the Finance (No.2) Act, 2014 could only be rejected as entirely baseless, rather preposterous.Question No. 4we may usefully summarise the answers to Question Nos. 1 to 3 that the provisions of Section 194C were indeed applicable and the assessee-appellant was under obligation to deduct the tax at source in relation to the payments made by it for hiring the vehicles for the purpose of its business of transportation of goods; that disallowance under Section 40(a)(ia) of the Act is not limited only to the amount outstanding and this provision equally applies in relation to the expenses that had already been incurred and paid by the assessee; that disallowance under Section 40(a)(ia) of the Act of 961 as introduced by the Finance (No.2) Act, 2004 with effect from 01.04.2005 is applicable to the case at hand relating to the assessment year 2005-2006; and that the benefit of amendment made in the year 2014 to the provision in question is not available to the appellant in the present case. These answers practically conclude the matter but we have formulatedessentially to deal with the last limb of submissions regarding the prejudice likely to be suffered by the appellant.In the first place, it is clear from the provisions dealing with disallowance of deductions in part D of Chapter IV of the Act, particularly those contained in Sections 40(a)(ia) and 40A(3) of the Act, that the said provisions are intended to enforce due compliance of the requirement of other provisions of the Act and to ensure proper collection of tax as also transparency in dealings of the parties. The necessity of disallowance comes into operation only when default of the nature specified in the provisions takes place. Looking to the object of these provisions, the suggestions about prejudice or hardship carry no meaning at all. Secondly, as noticed, by way of the proviso as originally inserted and its amendments in the years 2008 and 2010, requisite relief to a bonafide tax payer who had collected TDS but could not deposit within time before submission of the return was also provided; and as regards the amendment of 2010, this Court ruled it to be retrospective in operation. The proviso so amended, obviously, safeguarded the interest of a bonafide assessee who had made the deduction as required and had paid the same to the revenue. The appellant having failed to avail the benefit of such relaxation too, cannot now raise a grievance of alleged hardship. Thirdly, as noticed, the appellant had shown total payments in Truck Freight Account at Rs. 1,37,71,206/- and total receipts from the company at Rs. 1,43,90,632/-. What has been disallowed is that amount of Rs. 57,11,625/- on which the appellant failed to deduct the tax at source and not the entire amount received from the company or paid to the truck operators/owners. Viewed from any angle, we do not find any case of prejudice or legal grievance with the appellant. | 1 | 11,325 | 7,799 | ### Instruction:
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question were transported through the trucks employed by the appellant but, there was no privity of contract between the truck operators/owners and the said consignor company. Indisputably, it was the responsibility of the appellant to transport the goods (cement) of the company; and how to accomplish this task of transportation was a matter exclusively within the domain of the appellant. Hence, hiring the services of truck operators/owners for this purpose could have only been under a contract between the appellant and the said truck operators/owners. Whether such a contract was reduced into writing or not carries hardly any relevance. In the given scenario and set up, the said truck operators/owners answered to the description of sub-contractor for carrying out the whole or part of the work undertaken by the contractor (i.e., the appellant) for the purpose of Section 194C(2) of the Act. 15.2. The suggestions on behalf of the appellant that the said truck operators/owners were not bound to supply the trucks as per the need of the appellant nor the freight payable to them was pre-determined, in our view, carry no meaning at all. Needless to observe that if a particular truck was not engaged, there existed no contract but, when any truck got engaged for the purpose of execution of the work undertaken by the appellant and freight charges were payable to its operator/owner upon execution of the work, i.e., transportation of the goods, all the essentials of making of a contract existed; and, as aforesaid, the said truck operator/owner became a sub-contractor for the purpose of the work in question. The AO, CIT(A) and the ITAT have concurrently decided this issue against the appellant with reference to the facts of the case, particularly after appreciating the nature of contract of the appellant with the consignor company as also the nature of dealing of the appellant, while holding that the truck operators/owners were engaged by the appellant as sub-contractors. The same findings have been endorsed by the High Court in its short order dismissing the appeal of the appellant. We are unable to find anything of error or infirmity in these findings. 15.3. The decision of Delhi High Court in the case of Hardarshan Singh (supra), in our view, has no application whatsoever to the facts of the present case. The assessee therein, who was in the business of transporting goods, had four trucks of his own and was also acting as a commission agent by arranging for transportation through other transporters. As regards the income of assessee relatable to transportation through other transporters, it was found that the assessee had merely acted as a facilitator or as an intermediary between the two parties (i.e., the consignor company and the transporter) and had no privity of contract with either of such parties inasmuch as he only collected freight charges from the clients who intended to transport their goods through other transporters; and the amount thus collected from the clients was paid to those transporters by the assessee while deducting his commission. Looking to the nature of such dealings, the said assessee was held to be not the person responsible for making payments in terms of Section 194C of the Act and hence, having no obligation to deduct tax at source. In contradistinction to the said case of Hardarshan Singh, the appellant of the present case was not acting as a facilitator or intermediary between the consignor company and the truck operators/owners because those two parties had no privity of contract between them. The contract of the company, for transportation of its goods, had only been with the appellant and it was the appellant who hired the services of the trucks. The payment made by the appellant to such a truck operator/owner was clearly a payment made to a sub-contractor. 15.4. Though the decision of this Court in the case of Palam Gas Service (supra) essentially relates to the interpretation of Section 40(a)(ia) of the Act and while the relevant aspects concerning the said provision shall be examined in the next question but, for the present purpose, the facts of that case could be usefully noticed, for being akin to the facts of the present case and being of apposite illustration. Therein, the assessee was engaged in the business of purchase and sale of LPG cylinders whose main contract for carriage of LPG cylinders was with Indian Oil Corporation, Baddi wherefor, the assessee received freight payments from the principal. The assessee got the transportation of LPG done through three persons to whom he made the freight payments. The Assessing Officer held that the assessee had entered into a sub-contract with the said three persons within the meaning of Section 194C of the Act. Such findings of AO were concurrently upheld up to the High Court and, after interpretation of Section 40(a)(ia), this Court also approved the decision of the High Court while dismissing the appeal with costs. Learned counsel for the appellant has made an attempt to distinguish the nature of contract in Palam Gas Service by suggesting that therein, the assessees sub-contractors were specific and identified persons with whom the assessee had entered into contract whereas the present appellant was free to hire the service of any truck operator/owner and, in fact, the appellant hired the trucks only on need basis. In our view, such an attempt of differentiation is totally baseless and futile. Whether the appellant had specific and identified trucks on its rolls or had been picking them up on freelance basis, the legal effect on the status of parties had been the same that once a particular truck was engaged by the appellant on hire charges for carrying out the part of work undertaken by it (i.e., transportation of the goods of the company), the operator/owner of that truck became the sub-contractor and all the requirements of Section 194C came into operation. 15.5. Thus, we have no hesitation in affirming the concurrent findings in regard to the applicability of Section 194C to the present case.
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made applicable w.e.f. 01.04.2015 and clearly represents the will of the legislature as to what is to be deducted or what percentage of deduction is not to be allowed for a particular eventuality, from the assessment year 2015-2016.19.3. On the other hand, in the case of Calcutta Export Company (supra), this Court noticed the aforesaid two amendments to Section 40(a)(ia) of the Act by the Finance Act, 2008 and by the Finance Act, 2010, which were intended to deal with procedural hardship likely to be faced by the bonafide tax payer, who had deducted tax at source but could not make deposit within the prescribed time so as to claim deduction. In paragraph 17 of judgment in Calcutta Export Company, this Court took note of the case of genuine hardship, particularly of the assessees who had deducted tax at source in thelast month of previous year; and observed in paragraph 18 that the said amendment of the year 2008 was brought about with a view to mitigate such hardship. After reproducing the said amendment of the year 2008 and after noticing its retrospective operation, this Court delved into the position obtaining after 2008, where still remained one class of assessees who could not claim deduction for the TDS amount in the previous year in which the tax was deducted and who could claim benefit of such deduction in the next year only; and, after finding that the amendment of the year 2010 was intended to remedy this position, held that the said amendment, being curative in nature, is required to be given retrospective operation that is, from the date of insertion of Section 40(a)(ia).19.5. A bare look at the extraction aforesaid makes it clear that what this Court has held as regards retrospective operation is that the amendment of the year 2010, being curative in nature, would be applicable from the date of insertion of the provision in question i.e., sub-clause (ia) of Section 40(a) of the Act. This being the position, it is difficult to find any substance in the argument that the principles adopted by this Court in the case of Calcutta Export Company (supra) dealing with curative amendment, relating more to the procedural aspects concerning deposit of the deducted TDS, be applied to the amendment of the substantive provision by the Finance (No.2) Act, 2014.19.6. We may in the passing observe that the assessee-appellant was either labouring under the mistaken impression that he was not required to deduct TDS or under the mistaken belief that the methodology of splitting a single payment into parts below Rs. 20,000/- would provide him escape from the rigour of the provisions of the Act providing for disallowance. In either event, the appellant had not been a bonafide assessee who had made the deduction and deposited it subsequently. Obviously, the appellant could not have derived the benefits that were otherwise available by the curative amendments of 2008 and 2010. Having defaulted at every stage, the attempt on the part of assessee-appellant to seek some succor in the amendment of Section 40(a)(ia) of the Act by the Finance (No.2) Act, 2014 could only be rejected as entirely baseless, rather preposterous.Question No. 4we may usefully summarise the answers to Question Nos. 1 to 3 that the provisions of Section 194C were indeed applicable and the assessee-appellant was under obligation to deduct the tax at source in relation to the payments made by it for hiring the vehicles for the purpose of its business of transportation of goods; that disallowance under Section 40(a)(ia) of the Act is not limited only to the amount outstanding and this provision equally applies in relation to the expenses that had already been incurred and paid by the assessee; that disallowance under Section 40(a)(ia) of the Act of 961 as introduced by the Finance (No.2) Act, 2004 with effect from 01.04.2005 is applicable to the case at hand relating to the assessment year 2005-2006; and that the benefit of amendment made in the year 2014 to the provision in question is not available to the appellant in the present case. These answers practically conclude the matter but we have formulatedessentially to deal with the last limb of submissions regarding the prejudice likely to be suffered by the appellant.In the first place, it is clear from the provisions dealing with disallowance of deductions in part D of Chapter IV of the Act, particularly those contained in Sections 40(a)(ia) and 40A(3) of the Act, that the said provisions are intended to enforce due compliance of the requirement of other provisions of the Act and to ensure proper collection of tax as also transparency in dealings of the parties. The necessity of disallowance comes into operation only when default of the nature specified in the provisions takes place. Looking to the object of these provisions, the suggestions about prejudice or hardship carry no meaning at all. Secondly, as noticed, by way of the proviso as originally inserted and its amendments in the years 2008 and 2010, requisite relief to a bonafide tax payer who had collected TDS but could not deposit within time before submission of the return was also provided; and as regards the amendment of 2010, this Court ruled it to be retrospective in operation. The proviso so amended, obviously, safeguarded the interest of a bonafide assessee who had made the deduction as required and had paid the same to the revenue. The appellant having failed to avail the benefit of such relaxation too, cannot now raise a grievance of alleged hardship. Thirdly, as noticed, the appellant had shown total payments in Truck Freight Account at Rs. 1,37,71,206/- and total receipts from the company at Rs. 1,43,90,632/-. What has been disallowed is that amount of Rs. 57,11,625/- on which the appellant failed to deduct the tax at source and not the entire amount received from the company or paid to the truck operators/owners. Viewed from any angle, we do not find any case of prejudice or legal grievance with the appellant.
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Udai (Dead) (through Lrs.), Ram Kishan (Dead) (through Lrs.) and Ors Vs. Deputy Director of Consolidation, Varanasi and Ors | of 1356 F, the respondents were only recorded as sub-tenants but not as occupants and hence they cannot get the benefit of Section (20(b) (i) of the Act. this Court held, apropos these arguments : These (earlier) decisions negative the first, second and the fourth points sought to be raised on behalf of the appellants. The record of rights for the year 1356 F. had not been corrected afterwards. We have to go by the entry in the record of rights and no enquiry need be made as to when the respondents became subtenants after the decision in favour of the landlord, Ram Dhani Singh. The last decision of this Court also shows that as between the tenant and the sub-tenant the entry in the record of rights in favour of the sub-tenant makes him the occupant entitled to the adhivasi rights under Section 20 of the Act. With regard to the point as to the violation of Rule 183 it is enough to say that the point was not canvassed before the Board of Revenue and as such we need not look into it. 12. From the above extract, it seems clear that Nath Singh (supra) clinches the issue before us. It unequivocally holds that a person recorded as sub-tenant in 1356F, (here 1357F.), is entitled to claim, as against the tenant that he is entitled to adhivasi rights under Section 20. Sri Swarup, however, vehemently urges that this is not so. He points out that Nath Singh (supra) does not proper to overrule either Upper Ganges (supra) or Amba Prasad (supra); on the contrary, it purports to only follow and apply these decisions. He contends that, if a mere entry in the village records as sub-tenant in 1356F. were sufficient to confer adhivasi rights, the whole discussion in Upper Ganges was beside the point. this Court (constituting five learned Judges) need not have at all entered into an elaborate discussion, as they did, about the nature of the possession of the company in that case : whether it was in possession as tekhedar (on behalf of someone else) or in its own right. This shows, says Sri Swarup, that what is important is that the person claiming the rights should have been entered as an occupant entitled to possession of the lands in his own rights and not as an agent or on behalf of the Zamindar or the principal tenant. He invites our attention to the passage from Amba Prasad (supra) which we have underlined above and contends that the said passage outlines an exception and that the present case unlike Upper Ganges and Amba Prasad, falls under the exception so set out. In Nath Singh, he also points out, the person claiming the rights was in occupation not as a sub-tenant but in his own right. According to Sri Swarup, to claim right under Section 20(b)(i), it is not enough that the claimant is recorded as an occupant in the village records as 1357F.; it is also necessary that such occupancy should be traceable to a right in himself and not a right derived from a principal tenant. The object of the legislation, he says, was to abolish zamindari rights and not the rights of intermediate holders of property like tenants. 13. The argument is ingenious out we do not think it is open to the respondent in view of the categorical decision in Nath Singh. Contention (4) as set out at p. 501 and the conclusion at p. 504 of the above judgment leave no doubt regarding this. Shri Swarups argument indirectly asks us to go behind the entry in the village records and enter into a discussion as to whether the person recorded as subtenant was in possession or not, was entitled to possession or not and, if yes, in what capacity he was entitled to, or was in, such possession, a plea that goes directly in the teeth of all the three decisions. The discussion in Upper Ganges does not negative this position. That discussion was in the context of repelling a specific contention urged before the Court by the landlord, which derived inspiration, perhaps, from the specific exclusion of tekhedar from the definition of the expression tenant in the U.P. Tenancy Act, 1936. That contention viz. that the companys possession was either on behalf of the the court or was on behalf of the landlords was negatived. That decision cannot, therefore, be treated as laying down that occupancy as a sub-tenant would not be sufficient for the purposes of Section 20(b)(i). So far as Amba Prasad is concerned, the observations in the judgment show that even the tenant can be regarded as occupants vis-a-vis the proprietor and the tenant respectively. It is only where, although the name of tenant or sub-tenant is shown in columns (5) and (6) of the khasra, some other person is shown in the remarks column as the actual occupant that the tenant or sub-tenant cannot be regarded as the recorded occupant. In our opinion, therefore, Amba Prasad and Sri Nath Singh are decisive of the issue in the present case. 14. learned Counsel for the fourth respondent, however, contended that this respondent was disabled landholder within the meaning of Section 10 read with Section 157 of the Act. He contended that she was entitled to become the owner of the plots in dispute and that the appellant could be no more than an asami in respect of the same, in view of the provisions contained in Sections 10, 21, Section 157 of the Act. This is a point which had been raised by the respondent in the writ petition. We find that, in the counter affidavit, the fifth respondent had raised an objection that it was not open to the writ petitioner to take up this plea in the writ petition. However, this aspect of the matter was not considered by the High Court as the writ petition was allowed on the principal ground raised in it. | 1[ds]5. The answer to the above question seems self-evident if one were to go by the purely etymological meaning of the word occupant. In the absence of any statutory definition, that word would clearly cover any person who has been recorded as having been in occupation of the land in question in the relevant fasli irrespective of the capacity in, or title under, which he so occupied it. There will therefore be no reason, normally speaking, to exclude a person whose occupancy is recorded on the basis of his sub-tenancy. It appears, however, that in one of the early decisions under the Act, a Full Bench of the Allahabad High Court (Ram Dular Singh v. Babu Sukhu Ram 1963 61 ALJ 667) took the view that a person entered as subtenant in the Khasra and Khatauni of 1356F. could not be treated as a recorded occupant within the meaning of Section 20(b)(i). However a later Full Bench (Chobey Sunder Lal v. Sonu alias Sonpal held to the contrary in view of the decisions of the Supreme Court in Upper Ganges Sugar Mills Ltd. v. Khalil-ur-Rahman [1961]1SCR564 and Amba Prasad v. Abdul Noor Khan [1964]7SCR800 .6. It, however appears that the above two decisions of the Supreme Court and that of the Full bench in Chobey Sunder Lals case (supra) had been distinguished by the same High Court in Pir Khan v. Deputy Director 1965 62 ALJ 591) and Radha Kishori v. Joint Director 1972 70 ALJ 738. In the later case it was observed :The Supreme Court has held that the entry of a sub-tenant is an entry of an occupant qua the tenant-in-Chief and the entry of a tenant is an entry of an occupant qua the landlord. It, therefore, follows from the Supreme Court judgments that the entry of a tenant or sub-tenant in the records of 1356 Fasli can amount to an entry of occupant; but it does not follow from this that every entry of tenant or sub-tenant in the records of 1356 Fasli must necessarily amount to an entry of occupant.So for as we can see, the 1967 Full Bench deals with a different question and has not overruled the decision of the Division Bench in Pir Khans case. An occupant can only be against the Zamindar or the tenant or sub-tenant of the land, i.e., against some one holding the legal title in the land. If the land has been let out to a tenant, then the occupant can only be against the tenant. If the name of the tenant is recorded in the records of 1356 Fasli and he can be considered to be a recorded occupant also, then he will be an occupant against himself. Section 20(b) does not contemplate a rightful tenureholder being an occupant-it contemplates an occupant as some one other then the rightful tenureholder who is capable of acquiring adhivasi rights against him.However, the Court observed, in the view which we are taking it is neither necessary to examine this question any further nor to refer the matter for decision to a larger Bench. That view was that the claimant before the Court had acquired adhivasi rights under Section 20(a)(i) and that right was not affected whether or not he was a recorded occupant for purposes of Clause (b)(i).Only one slight modification to be noted in regard to the applicability of the section to the present case, which relates to Varanasi District, is that by a subsequent amendment, the reference to 1356 Fasli has to be read as reference to 1357 Fasli in respect of areas comprised the erstwhile Banaras State.5. The answer to the above question seems self-evident if one were to go by the purely etymological meaning of the word occupant. In the absence of any statutory definition, that word would clearly cover any person who has been recorded as having been in occupation of the land in question in the relevant fasli irrespective of the capacity in, or title under, which he so occupied it. There will therefore be no reason, normally speaking, to exclude a person whose occupancy is recorded on the basis of his sub-tenancy.So for as we can see, the 1967 Full Bench deals with a different question and has not overruled the decision of the Division Bench in Pir Khans case. An occupant can only be against the Zamindar or the tenant or sub-tenant of the land, i.e., against some one holding the legal title in the land. If the land has been let out to a tenant, then the occupant can only be against the tenant. If the name of the tenant is recorded in the records of 1356 Fasli and he can be considered to be a recorded occupant also, then he will be an occupant against himself. Section 20(b) does not contemplate a rightful tenureholder being an occupant-it contemplates an occupant as some one other then the rightful tenureholder who is capable of acquiring adhivasi rights against him.However, the Court observed, in the view which we are taking it is neither necessary to examine this question any further nor to refer the matter for decision to a larger Bench. That view was that the claimant before the Court had acquired adhivasi rights under Section 20(a)(i) and that right was not affected whether or not he was a recorded occupant for purposes of Clause (b)(i).7. In the judgment under appeal the learned Judge has, following the Division Bench decision in Pir Khan and Radha Kishori held that a sub-tenant could not be treated as a recorded occupant under Section 20(b)(i) of the Act.8. In Upper Ganges Sugar Mills Ltd. v. Khalil-ur-Rahman [1961]1SCR564 , the landlord had granted a tekha to the company upto 1355F. On the companys refusal to vacate on the expiry of the tekha, the landlord successfully sued for ejectment under Section 19 of the U.P. Tenancy Act. But pending the suit and appeals (in all of which it failed), the company had continued to be in possession and, though it handed over formal possession on 1.7.53, had resisted actual ejectment. On 1.7.53, the company filed a suit to recover possession under Section 232 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, claiming that it had become an adhivasi under Section 20 of the Act, for the company had been recorded in 1356F. as in possession of the land as tekhedar. The landlord resisted the suit on two grounds: (a) that the company, having been in possession under Court orders, was in possession not on its own behalf but on behalf of the Courts; and (b) that the company, having been recorded in 1356F. as a tekhedar, its possession was not on its own behalf but on behalf of the landlords whose tekhedar it was. Neither of these contentions was accepted by the Supreme Court. Wanchoo, J. for the majority, held that the company had acquired adhivasi rights in the land and was entitled to the possession thereof. Simply because there were stay orders which enabled the company to remain in possession, the possession was not on behalf of the Court. The company remained in possession in the same right in which it was in possession before the decree was passed on November 3, 1948. Though the company was recorded in possession as a tekhedar, it was an occupant in its own right and not on behalf of the landlord. It was open to the court to look beyond the entry of the company as a tekhedar in the Khasra. Das Gupta, J., however, held in his dissenting judgment :The company did not acquire the rights of an adhivasi. The word occupant means a person in possession in his own right and not on behalf of someone else. The benefit under the section is available only to those recorded as occupants. It is not permissible to look beyond the record to ascertain whether the claimant has been recorded as occupant. The record in the khasra of the possession as tekhedar amounts to record of possession on behalf of tekhedars lessor.. The facts in Amba Prasad v. Abdul Noor Khan [1964]7SCR800 were more complicated. But, for our present purposes, it is sufficient to extract the facts as set out in the headnote. Before the coming into operation of the Act, Amba Prasad was the Zamindar of the disputed land. The names of the respondents had been recorded in the khasra for 1356F as persons in possession of the disputed land but they had been dispossessed after 30.6.49. They claimed adhivasi rights under Section 20 on the strength of the record for 1356F. and were successful in their claim before the Board of Revenue. The Supreme Court dismissed Amba Prasads appeal. Hidayatullah, J. (as His Lordship then was) analysed the terms of Section 20 and its explanations thus :The scheme of the section may now be noticed. The Section, speaking generally, says that certain persons recorded as occupants of lands (other than grove lands or lands to which Section 16 applies) shall be known as adhivasis and shall be entitled to retain or to regain possession of them after the date of vesting which was July 1, 1952. Such persons do not include an intermediary (Explanation IV). Such persons must be recorded as occupants in the khasra or khatauni for 1356F. (1.7.48 to 30.6.49). If such a person is in possession he continues in possession. If he is evicted after June 30, 1948 he is to be put back in possession notwithstanding anything in any order or decree. By fiction such persons are deemed to be entitled to regain possession (Explanation I). The emphasis has been laid on the record of khasra or khatauni of 1356F. and June 30, 1948 is the datum line. The importance of an entry in these two documents is further apparent from Explanations II and III. Under the former, if the entry is corrected before the date of vesting (1-7-52), the corrected entry is to prevail and under the later the entry is deemed to be corrected (even though not actually corrected) if an order or decree of a competent courts ordering the correction had been made before the date of vesting and the order or decree had become final. There are thus two date lines. They are June 30, 1948 and July 1, 1952, and the title to possession as adhivasi depends on the entries in the khasra or khatauni for the years Lordship then observed :Before we proceed to decide whether the answering respondents satisfy the above tests, we must consider what is meant by the terms occupant and recorded. The word occupant is not defined in the Act. Since khasra records possession and enjoyment the word occupant must mean a person holding the land in possession or actual enjoyment. The khasra, however, may mention the proprietor, the tenant, the sub-tenant and other person in actual possession, as the case may be. If by occupant is meant the person in actual possession it is clear that between a proprietor and a tenant, the tenant and between a tenant and the sub-tenant the later between him and a person recorded in the remarks column as daywear qabiz, the dawedar qabiz are the occupants. This is the only logical way to interpret the section which does away with all intermediaries. If rights are not to be determined except in the manner laid down by the section, the entries must be construed as explained by the four explanations. Once we find out the right person in the light of the explanations, that person continues as an adhivasi after July 1, 1952, provided he is in possession or was evicted after June 30, 1948. If he was evicted after June 30, 1948 he is entitled to regain possession in spite of any order or decree to the contrary. The word occupant thus signifies occupancy and enjoyment. Mediate possession, except where the immediate possessor holds on behalf of the mediate possessor), is of no consequence. In this way even persons who got into occupation when lands were abandoned get recognition. The section eliminates inquiries into disputed possession by accepting the records in the khasra or khatauni of 1356F, or its correction before July 1, 1952. It was perhaps thought that all such disputes would have solved themselves in the four years between June 30, 1948 and June 30, 1952.(underlining ours)His Lordship concluded by touching upon the question whether the persons claiming rights under Section 20 should prove actual possession in 1356F and, observing that this question had been left open in the Upper Ganges case, said there was no reason to disturb a long established line of decisions of the Allahabad High Court answering the question in the negative. In the result, Amba Prasads appeal was dismissed.10. It is necessary to refer to yet one more decision of this Court and that is Nath Singh v. Board of Revenue [1968]3SCR498 . In this case, the village records showed the respondents as sub-tenants from the appellants of the lands in question. One R who was the tekhedar of the proprietary rights, sued to eject the appellants and respondents alleging that the subletting was illegal. The suit was dismissed in March 1946 (i.e. towards the end of 1353F.) on the ground that there was no subletting and that the entries in the records to this effect were not correct. Despite the decision in the suit, no attempt was made by anyone to correct the entries in the village records and the respondents continued to figure as sub-tenants in these records, until 1368F when the lekhpal, on his own, removed those entries from the year 1358F. In 1952 (i.e. 1360F.), after the Act came into force, the respondents claimed adhivasi rights and sued to recover possession of the lands. They succeeded before the Board of Revenue and the High Court declined to interfere under Article 226. In an appeal by Special Leave, the Supreme Court held that the Court had to go by the entry in the record of rights, that it was not necessary to enquire whether the respondents had become sub-tenants after the decision in the suit filed by R and that, as between the tenant and the sub-tenant, the entry in the record of rights in favour of the sub-tenant made him the occupant entitled to the adhivasi rights under Section 20. The court followed the decisions in Upper Ganges and Amba Prasad. As to the former decision, the Court observed :This case establishes that a person recorded as an occupant on on the relevant date although found by courts of law to have no right to possession even prior thereto, is not to be denied adhivasis to the latter, the Court quoted, with apparent approval, extensive extracts from the judgment of Hidayatullah, J.11. In the last case before this Court, four arguments had been addressed on behalf of the appellants :(1) The correctness of the entry in the record of rights of 1356F. can be gone into and is capable of challenge in a court of law exercising jurisdiction under Article 226.(2) In the present case, there was an adjudication in March, 1945 and the respondents were not sub-tenants : consequently, unless they showed that they had thereafter become sub-tenants the benefit of the entry in their favour in 1356F. could not be availed of by them.(3) Under Rule 183 of the rules framed under the Act it was incumbent on the respondents to state in their applications the dates of their dispossession and the failure to do so rendered their petitions defective.(4) In the khasra of 1356 F, the respondents were only recorded as sub-tenants but not as occupants and hence they cannot get the benefit of Section (20(b) (i) of the Act.this Court held, apropos these arguments :These (earlier) decisions negative the first, second and the fourth points sought to be raised on behalf of the appellants. The record of rights for the year 1356 F. had not been corrected afterwards. We have to go by the entry in the record of rights and no enquiry need be made as to when the respondents became subtenants after the decision in favour of the landlord, Ram Dhani Singh. The last decision of this Court also shows that as between the tenant and the sub-tenant the entry in the record of rights in favour of the sub-tenant makes him the occupant entitled to the adhivasi rights under Section 20 of the Act.With regard to the point as to the violation of Rule 183 it is enough to say that the point was not canvassed before the Board of Revenue and as such we need not look into it.. From the above extract, it seems clear that Nath Singh (supra) clinches the issue before us. It unequivocally holds that a person recorded as sub-tenant in 1356F, (here 1357F.), is entitled to claim, as against the tenant that he is entitled to adhivasi rights under Section 20.13. The argument is ingenious out we do not think it is open to the respondent in view of the categorical decision in Nath Singh. Contention (4) as set out at p. 501 and the conclusion at p. 504 of the above judgment leave no doubt regarding this. Shri Swarups argument indirectly asks us to go behind the entry in the village records and enter into a discussion as to whether the person recorded as subtenant was in possession or not, was entitled to possession or not and, if yes, in what capacity he was entitled to, or was in, such possession, a plea that goes directly in the teeth of all the three decisions. The discussion in Upper Ganges does not negative this position. That discussion was in the context of repelling a specific contention urged before the Court by the landlord, which derived inspiration, perhaps, from the specific exclusion of tekhedar from the definition of the expression tenant in the U.P. Tenancy Act, 1936. That contention viz. that the companys possession was either on behalf of the the court or was on behalf of the landlords was negatived. That decision cannot, therefore, be treated as laying down that occupancy as a sub-tenant would not be sufficient for the purposes of Section 20(b)(i). So far as Amba Prasad is concerned, the observations in the judgment show that even the tenant can be regarded as occupants vis-a-vis the proprietor and the tenant respectively. It is only where, although the name of tenant or sub-tenant is shown in columns (5) and (6) of the khasra, some other person is shown in the remarks column as the actual occupant that the tenant or sub-tenant cannot be regarded as the recorded occupant. In our opinion, therefore, Amba Prasad and Sri Nath Singh are decisive of the issue in the present case.We find that, in the counter affidavit, the fifth respondent had raised an objection that it was not open to the writ petitioner to take up this plea in the writ petition. However, this aspect of the matter was not considered by the High Court as the writ petition was allowed on the principal ground raised in it.According to Sri Swarup, to claim right under Section 20(b)(i), it is not enough that the claimant is recorded as an occupant in the village records as 1357F.; it is also necessary that such occupancy should be traceable to a right in himself and not a right derived from a principal tenant. The object of the legislation, he says, was to abolish zamindari rights and not the rights of intermediate holders of property like tenants. | 1 | 4,370 | 3,685 | ### Instruction:
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of 1356 F, the respondents were only recorded as sub-tenants but not as occupants and hence they cannot get the benefit of Section (20(b) (i) of the Act. this Court held, apropos these arguments : These (earlier) decisions negative the first, second and the fourth points sought to be raised on behalf of the appellants. The record of rights for the year 1356 F. had not been corrected afterwards. We have to go by the entry in the record of rights and no enquiry need be made as to when the respondents became subtenants after the decision in favour of the landlord, Ram Dhani Singh. The last decision of this Court also shows that as between the tenant and the sub-tenant the entry in the record of rights in favour of the sub-tenant makes him the occupant entitled to the adhivasi rights under Section 20 of the Act. With regard to the point as to the violation of Rule 183 it is enough to say that the point was not canvassed before the Board of Revenue and as such we need not look into it. 12. From the above extract, it seems clear that Nath Singh (supra) clinches the issue before us. It unequivocally holds that a person recorded as sub-tenant in 1356F, (here 1357F.), is entitled to claim, as against the tenant that he is entitled to adhivasi rights under Section 20. Sri Swarup, however, vehemently urges that this is not so. He points out that Nath Singh (supra) does not proper to overrule either Upper Ganges (supra) or Amba Prasad (supra); on the contrary, it purports to only follow and apply these decisions. He contends that, if a mere entry in the village records as sub-tenant in 1356F. were sufficient to confer adhivasi rights, the whole discussion in Upper Ganges was beside the point. this Court (constituting five learned Judges) need not have at all entered into an elaborate discussion, as they did, about the nature of the possession of the company in that case : whether it was in possession as tekhedar (on behalf of someone else) or in its own right. This shows, says Sri Swarup, that what is important is that the person claiming the rights should have been entered as an occupant entitled to possession of the lands in his own rights and not as an agent or on behalf of the Zamindar or the principal tenant. He invites our attention to the passage from Amba Prasad (supra) which we have underlined above and contends that the said passage outlines an exception and that the present case unlike Upper Ganges and Amba Prasad, falls under the exception so set out. In Nath Singh, he also points out, the person claiming the rights was in occupation not as a sub-tenant but in his own right. According to Sri Swarup, to claim right under Section 20(b)(i), it is not enough that the claimant is recorded as an occupant in the village records as 1357F.; it is also necessary that such occupancy should be traceable to a right in himself and not a right derived from a principal tenant. The object of the legislation, he says, was to abolish zamindari rights and not the rights of intermediate holders of property like tenants. 13. The argument is ingenious out we do not think it is open to the respondent in view of the categorical decision in Nath Singh. Contention (4) as set out at p. 501 and the conclusion at p. 504 of the above judgment leave no doubt regarding this. Shri Swarups argument indirectly asks us to go behind the entry in the village records and enter into a discussion as to whether the person recorded as subtenant was in possession or not, was entitled to possession or not and, if yes, in what capacity he was entitled to, or was in, such possession, a plea that goes directly in the teeth of all the three decisions. The discussion in Upper Ganges does not negative this position. That discussion was in the context of repelling a specific contention urged before the Court by the landlord, which derived inspiration, perhaps, from the specific exclusion of tekhedar from the definition of the expression tenant in the U.P. Tenancy Act, 1936. That contention viz. that the companys possession was either on behalf of the the court or was on behalf of the landlords was negatived. That decision cannot, therefore, be treated as laying down that occupancy as a sub-tenant would not be sufficient for the purposes of Section 20(b)(i). So far as Amba Prasad is concerned, the observations in the judgment show that even the tenant can be regarded as occupants vis-a-vis the proprietor and the tenant respectively. It is only where, although the name of tenant or sub-tenant is shown in columns (5) and (6) of the khasra, some other person is shown in the remarks column as the actual occupant that the tenant or sub-tenant cannot be regarded as the recorded occupant. In our opinion, therefore, Amba Prasad and Sri Nath Singh are decisive of the issue in the present case. 14. learned Counsel for the fourth respondent, however, contended that this respondent was disabled landholder within the meaning of Section 10 read with Section 157 of the Act. He contended that she was entitled to become the owner of the plots in dispute and that the appellant could be no more than an asami in respect of the same, in view of the provisions contained in Sections 10, 21, Section 157 of the Act. This is a point which had been raised by the respondent in the writ petition. We find that, in the counter affidavit, the fifth respondent had raised an objection that it was not open to the writ petitioner to take up this plea in the writ petition. However, this aspect of the matter was not considered by the High Court as the writ petition was allowed on the principal ground raised in it.
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his own, removed those entries from the year 1358F. In 1952 (i.e. 1360F.), after the Act came into force, the respondents claimed adhivasi rights and sued to recover possession of the lands. They succeeded before the Board of Revenue and the High Court declined to interfere under Article 226. In an appeal by Special Leave, the Supreme Court held that the Court had to go by the entry in the record of rights, that it was not necessary to enquire whether the respondents had become sub-tenants after the decision in the suit filed by R and that, as between the tenant and the sub-tenant, the entry in the record of rights in favour of the sub-tenant made him the occupant entitled to the adhivasi rights under Section 20. The court followed the decisions in Upper Ganges and Amba Prasad. As to the former decision, the Court observed :This case establishes that a person recorded as an occupant on on the relevant date although found by courts of law to have no right to possession even prior thereto, is not to be denied adhivasis to the latter, the Court quoted, with apparent approval, extensive extracts from the judgment of Hidayatullah, J.11. In the last case before this Court, four arguments had been addressed on behalf of the appellants :(1) The correctness of the entry in the record of rights of 1356F. can be gone into and is capable of challenge in a court of law exercising jurisdiction under Article 226.(2) In the present case, there was an adjudication in March, 1945 and the respondents were not sub-tenants : consequently, unless they showed that they had thereafter become sub-tenants the benefit of the entry in their favour in 1356F. could not be availed of by them.(3) Under Rule 183 of the rules framed under the Act it was incumbent on the respondents to state in their applications the dates of their dispossession and the failure to do so rendered their petitions defective.(4) In the khasra of 1356 F, the respondents were only recorded as sub-tenants but not as occupants and hence they cannot get the benefit of Section (20(b) (i) of the Act.this Court held, apropos these arguments :These (earlier) decisions negative the first, second and the fourth points sought to be raised on behalf of the appellants. The record of rights for the year 1356 F. had not been corrected afterwards. We have to go by the entry in the record of rights and no enquiry need be made as to when the respondents became subtenants after the decision in favour of the landlord, Ram Dhani Singh. The last decision of this Court also shows that as between the tenant and the sub-tenant the entry in the record of rights in favour of the sub-tenant makes him the occupant entitled to the adhivasi rights under Section 20 of the Act.With regard to the point as to the violation of Rule 183 it is enough to say that the point was not canvassed before the Board of Revenue and as such we need not look into it.. From the above extract, it seems clear that Nath Singh (supra) clinches the issue before us. It unequivocally holds that a person recorded as sub-tenant in 1356F, (here 1357F.), is entitled to claim, as against the tenant that he is entitled to adhivasi rights under Section 20.13. The argument is ingenious out we do not think it is open to the respondent in view of the categorical decision in Nath Singh. Contention (4) as set out at p. 501 and the conclusion at p. 504 of the above judgment leave no doubt regarding this. Shri Swarups argument indirectly asks us to go behind the entry in the village records and enter into a discussion as to whether the person recorded as subtenant was in possession or not, was entitled to possession or not and, if yes, in what capacity he was entitled to, or was in, such possession, a plea that goes directly in the teeth of all the three decisions. The discussion in Upper Ganges does not negative this position. That discussion was in the context of repelling a specific contention urged before the Court by the landlord, which derived inspiration, perhaps, from the specific exclusion of tekhedar from the definition of the expression tenant in the U.P. Tenancy Act, 1936. That contention viz. that the companys possession was either on behalf of the the court or was on behalf of the landlords was negatived. That decision cannot, therefore, be treated as laying down that occupancy as a sub-tenant would not be sufficient for the purposes of Section 20(b)(i). So far as Amba Prasad is concerned, the observations in the judgment show that even the tenant can be regarded as occupants vis-a-vis the proprietor and the tenant respectively. It is only where, although the name of tenant or sub-tenant is shown in columns (5) and (6) of the khasra, some other person is shown in the remarks column as the actual occupant that the tenant or sub-tenant cannot be regarded as the recorded occupant. In our opinion, therefore, Amba Prasad and Sri Nath Singh are decisive of the issue in the present case.We find that, in the counter affidavit, the fifth respondent had raised an objection that it was not open to the writ petitioner to take up this plea in the writ petition. However, this aspect of the matter was not considered by the High Court as the writ petition was allowed on the principal ground raised in it.According to Sri Swarup, to claim right under Section 20(b)(i), it is not enough that the claimant is recorded as an occupant in the village records as 1357F.; it is also necessary that such occupancy should be traceable to a right in himself and not a right derived from a principal tenant. The object of the legislation, he says, was to abolish zamindari rights and not the rights of intermediate holders of property like tenants.
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Nagindas Ramdas Vs. Dalpatram locharam alias Brijramand & Others | based on consent of the parties is not necessarily void if the jurisdictional fact viz, the existence of one or more of the conditions mentioned in S.10 were shown to have existed when the Court made the order. Satisfaction of the Court which is no doubt a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. It at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it before the parties invited it to pass an order in terms of their agreement it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based - If the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act, it is open to the Court to act on that admission and make an order for possession in favour of the landlord without further enquiry". 26. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the Court, on the basis of which the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admission is true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong. 27. We do not find any force in the contention of Mr. Dholakia, that the facts admitted in the compromise, itself were insufficient to make out even a prima facie ground for eviction mentioned in Section 12 (3)(a) of the Bombay Rent Act merely because the tenant had made an application for fixation of standard rent, which was still pending at the time of passing of the decree. By admitting to pay the arrears of rent and mesne profits at the rate of Rs.15/- per month the tenant had clearly withdrawn or abandoned his application for fixation of standard rent. The admission in the compromise was thus an admission of the material facts which constituted a ground for eviction under S.12 (3)(a). Rent was admittedly payable by the month since the application for fixation of fair rent stood withdrawn, there was no dispute with regard to the amount of standard rent. Further the rent was admittedly in arrears for a period of more than six months, so much so that in the present case the tenant had neglected to pay the balance of arrears amounting to Rs.152/50, even long after the decree and the landlord was compelled to recover the same by execution. 28. The case of Jeshwant Rai Mulukchand, (1965) 2 SCR 350 = (AIR 1965 SC 1419 ) (supra), cited by Mr. Dholakia does not advance his stand. In that case there was a serious dispute regarding the amount of standard rent though the final order of standard rent was passed by the Court of small Causes, neither the landlord nor the tenant accepted the determination and each side questioned the amount by filing Revision Petitions. In the present case however no dispute regarding the standard rent was subsisting at the time of compromise. That dispute was put an end to by the compromise, itself. 29. Be that as it may in cases where an objection as to the non-executability of the decree on the ground of its being a nullity is taken the Executing Court is not competent to go behind the decree if the decree on the face of it discloses some material on the basis of which the Rent Courtcould besatisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. If on the face of it, the decree does not show the existence of such material or jurisdictional fact, the executing Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial courts jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is complete. It is not necessary for it to go further and question the presumed or expressly finding of the trial court on the basis of that material. All that it has to see is whether there was material on the basis of which the Rent Courtcouldhave - as distinguished frommusthave - been satisfied as to the statutory ground for eviction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status of a super Court sitting in appeal over the decision of the Rent Court. Since in the instant case there was a clear admission in the compromise, incorporated in the decree of the fundamental facts that could constitute a ground for eviction under S.12 (3) (a) the Executing Court was not competent to go behind the decree and question its validity. | 0[ds]14. All these three Acts lay down specific grounds more or less similar on which a decree or order of eviction can be passed by the Rent Court or the Tribunal exercising exclusive jurisdiction. In the Delhi Rent Act, such grounds are specified in a consolidated from under S.13, while the same thing has been split up into two and provided in two Sections 912 and 13) in the Bombay Rent Act which represent the negative and positive parts of the same pattern. Taken together they are exhaustive of the grounds on which the Rent Court is competent to pass a decree of possession. Similarly, IN THE Madras Rent Act, the grounds on which a tenant can be evicted, are tiven in Ss. 10, 14 and 1616. It will thus be seen that the Delhi Rent Act expressly forbid the Rent Court or the Tribunal from passing a decree or order of eviction on a ground which is not any of the grounds mentioned in the relevant sections of those statutes. Nevertheless, such a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Ss. 12 and 13 and to the parties that they shall not contractor out of those statutory grounds is inherent in the public policy built into the statute (Bombay Rent Act)23. The case before u falls wellnigh within the ratio of Seshadris case (1973) 1 SCC 761 = (AIR 1973 SC 1311 ) (supra). Therein K. K. Chari, who was under an eviction order purchased the suit premises in the same city for his occupation. Seshadri was then the tenant of the suit premises under the vendor, and after the purchase, he attorned in favour of the appellant and had been paying rent to him Chari issued notices under S.106 of the Transfer of Property Act terminating the tenancy of Seshadri. Since Seshadri did not surrender possession, Chari filed a suit for eviction under S.10 (3) (a) (i) of the Madras Act mainly on the ground that he required the premises for his bona fide use and occupation. Seshadri controverted Charis claim. As the commencement of the enquiry, Chari was examined before the Court. He particularly testified how he had purchased the house for his own occupation. He also filed a number of documents to establish that the requirement of premises for his own occupation was true. Seshadri did not refer to cross-examine Chari. About 1 1/2 months thereafter, both the parties entered into a compromise in these terms :"(1) The respondent hereby withdraws his defence in the aforesaid petition and submits to decree for eviction unconditionally(2) The respondent prays that time for vacating up to June 5, 1969 might please be given and the petitioner agrees to the same(3) The respondent agrees to vacate the petition premises and hand over possession of the entire petition premises to the petitioner on or before the said date viz. June 5, 1969, without fail under any circumstances and undertakes not to apply for extension of time(4) It is agreed by both the parties that this memo of compromise is executable as a Decree of Court."24. The Court, after referring to the petition of the landlord being under S.10 (3) (a) (i) of the Act on the ground of his own occupation passed the following order :"Compromise memo filed and recorded by consent eviction is ordered granting time to vacate till June 5, 1969 No costs"27. We do not find any force in the contention of Mr. Dholakia, that the facts admitted in the compromise, itself were insufficient to make out even a prima facie ground for eviction mentioned in Section 12 (3)(a) of the Bombay Rent Act merely because the tenant had made an application for fixation of standard rent, which was still pending at the time of passing of the decree. By admitting to pay the arrears of rent and mesne profits at the rate of Rs.15/- per month the tenant had clearly withdrawn or abandoned his application for fixation of standard rent. The admission in the compromise was thus an admission of the material facts which constituted a ground for eviction under S.12 (3)(a). Rent was admittedly payable by the month since the application for fixation of fair rent stood withdrawn, there was no dispute with regard to the amount of standard rent. Further the rent was admittedly in arrears for a period of more than six months, so much so that in the present case the tenant had neglected to pay the balance of arrears amounting to Rs.152/50, even long after the decree and the landlord was compelled to recover the same by execution29. Be that as it may in cases where an objection as to the non-executability of the decree on the ground of its being a nullity is taken the Executing Court is not competent to go behind the decree if the decree on the face of it discloses some material on the basis of which the Rent Courtcould besatisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. If on the face of it, the decree does not show the existence of such material or jurisdictional fact, the executing Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial courts jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is complete. It is not necessary for it to go further and question the presumed or expressly finding of the trial court on the basis of that material. All that it has to see is whether there was material on the basis of which the Rent Courtcouldhave - as distinguished frommusthave - been satisfied as to the statutory ground for eviction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status of a super Court sitting in appeal over the decision of the Rent Court. Since in the instant case there was a clear admission in the compromise, incorporated in the decree of the fundamental facts that could constitute a ground for eviction under S.12 (3) (a) the Executing Court was not competent to go behind the decree and question its validity. | 0 | 5,166 | 1,185 | ### Instruction:
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based on consent of the parties is not necessarily void if the jurisdictional fact viz, the existence of one or more of the conditions mentioned in S.10 were shown to have existed when the Court made the order. Satisfaction of the Court which is no doubt a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. It at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it before the parties invited it to pass an order in terms of their agreement it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based - If the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act, it is open to the Court to act on that admission and make an order for possession in favour of the landlord without further enquiry". 26. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the Court, on the basis of which the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admission is true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong. 27. We do not find any force in the contention of Mr. Dholakia, that the facts admitted in the compromise, itself were insufficient to make out even a prima facie ground for eviction mentioned in Section 12 (3)(a) of the Bombay Rent Act merely because the tenant had made an application for fixation of standard rent, which was still pending at the time of passing of the decree. By admitting to pay the arrears of rent and mesne profits at the rate of Rs.15/- per month the tenant had clearly withdrawn or abandoned his application for fixation of standard rent. The admission in the compromise was thus an admission of the material facts which constituted a ground for eviction under S.12 (3)(a). Rent was admittedly payable by the month since the application for fixation of fair rent stood withdrawn, there was no dispute with regard to the amount of standard rent. Further the rent was admittedly in arrears for a period of more than six months, so much so that in the present case the tenant had neglected to pay the balance of arrears amounting to Rs.152/50, even long after the decree and the landlord was compelled to recover the same by execution. 28. The case of Jeshwant Rai Mulukchand, (1965) 2 SCR 350 = (AIR 1965 SC 1419 ) (supra), cited by Mr. Dholakia does not advance his stand. In that case there was a serious dispute regarding the amount of standard rent though the final order of standard rent was passed by the Court of small Causes, neither the landlord nor the tenant accepted the determination and each side questioned the amount by filing Revision Petitions. In the present case however no dispute regarding the standard rent was subsisting at the time of compromise. That dispute was put an end to by the compromise, itself. 29. Be that as it may in cases where an objection as to the non-executability of the decree on the ground of its being a nullity is taken the Executing Court is not competent to go behind the decree if the decree on the face of it discloses some material on the basis of which the Rent Courtcould besatisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. If on the face of it, the decree does not show the existence of such material or jurisdictional fact, the executing Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial courts jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is complete. It is not necessary for it to go further and question the presumed or expressly finding of the trial court on the basis of that material. All that it has to see is whether there was material on the basis of which the Rent Courtcouldhave - as distinguished frommusthave - been satisfied as to the statutory ground for eviction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status of a super Court sitting in appeal over the decision of the Rent Court. Since in the instant case there was a clear admission in the compromise, incorporated in the decree of the fundamental facts that could constitute a ground for eviction under S.12 (3) (a) the Executing Court was not competent to go behind the decree and question its validity.
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in the Bombay Rent Act which represent the negative and positive parts of the same pattern. Taken together they are exhaustive of the grounds on which the Rent Court is competent to pass a decree of possession. Similarly, IN THE Madras Rent Act, the grounds on which a tenant can be evicted, are tiven in Ss. 10, 14 and 1616. It will thus be seen that the Delhi Rent Act expressly forbid the Rent Court or the Tribunal from passing a decree or order of eviction on a ground which is not any of the grounds mentioned in the relevant sections of those statutes. Nevertheless, such a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Ss. 12 and 13 and to the parties that they shall not contractor out of those statutory grounds is inherent in the public policy built into the statute (Bombay Rent Act)23. The case before u falls wellnigh within the ratio of Seshadris case (1973) 1 SCC 761 = (AIR 1973 SC 1311 ) (supra). Therein K. K. Chari, who was under an eviction order purchased the suit premises in the same city for his occupation. Seshadri was then the tenant of the suit premises under the vendor, and after the purchase, he attorned in favour of the appellant and had been paying rent to him Chari issued notices under S.106 of the Transfer of Property Act terminating the tenancy of Seshadri. Since Seshadri did not surrender possession, Chari filed a suit for eviction under S.10 (3) (a) (i) of the Madras Act mainly on the ground that he required the premises for his bona fide use and occupation. Seshadri controverted Charis claim. As the commencement of the enquiry, Chari was examined before the Court. He particularly testified how he had purchased the house for his own occupation. He also filed a number of documents to establish that the requirement of premises for his own occupation was true. Seshadri did not refer to cross-examine Chari. About 1 1/2 months thereafter, both the parties entered into a compromise in these terms :"(1) The respondent hereby withdraws his defence in the aforesaid petition and submits to decree for eviction unconditionally(2) The respondent prays that time for vacating up to June 5, 1969 might please be given and the petitioner agrees to the same(3) The respondent agrees to vacate the petition premises and hand over possession of the entire petition premises to the petitioner on or before the said date viz. June 5, 1969, without fail under any circumstances and undertakes not to apply for extension of time(4) It is agreed by both the parties that this memo of compromise is executable as a Decree of Court."24. The Court, after referring to the petition of the landlord being under S.10 (3) (a) (i) of the Act on the ground of his own occupation passed the following order :"Compromise memo filed and recorded by consent eviction is ordered granting time to vacate till June 5, 1969 No costs"27. We do not find any force in the contention of Mr. Dholakia, that the facts admitted in the compromise, itself were insufficient to make out even a prima facie ground for eviction mentioned in Section 12 (3)(a) of the Bombay Rent Act merely because the tenant had made an application for fixation of standard rent, which was still pending at the time of passing of the decree. By admitting to pay the arrears of rent and mesne profits at the rate of Rs.15/- per month the tenant had clearly withdrawn or abandoned his application for fixation of standard rent. The admission in the compromise was thus an admission of the material facts which constituted a ground for eviction under S.12 (3)(a). Rent was admittedly payable by the month since the application for fixation of fair rent stood withdrawn, there was no dispute with regard to the amount of standard rent. Further the rent was admittedly in arrears for a period of more than six months, so much so that in the present case the tenant had neglected to pay the balance of arrears amounting to Rs.152/50, even long after the decree and the landlord was compelled to recover the same by execution29. Be that as it may in cases where an objection as to the non-executability of the decree on the ground of its being a nullity is taken the Executing Court is not competent to go behind the decree if the decree on the face of it discloses some material on the basis of which the Rent Courtcould besatisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. If on the face of it, the decree does not show the existence of such material or jurisdictional fact, the executing Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial courts jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is complete. It is not necessary for it to go further and question the presumed or expressly finding of the trial court on the basis of that material. All that it has to see is whether there was material on the basis of which the Rent Courtcouldhave - as distinguished frommusthave - been satisfied as to the statutory ground for eviction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status of a super Court sitting in appeal over the decision of the Rent Court. Since in the instant case there was a clear admission in the compromise, incorporated in the decree of the fundamental facts that could constitute a ground for eviction under S.12 (3) (a) the Executing Court was not competent to go behind the decree and question its validity.
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Burn and Company Limited Vs. Workman and Another | and that he had falsely implicated Mukherjee of the charge that Mukherjee had thrashed him.According to clause 14(b) of the standing orders of the company, wilful disobedience or insubordination and interference with the work of other employees were to be regarded as major misdemeanours. The said clause of the standing orders provided :"A worker may be dismissed without notice or compensation in lieu of notice if he is found to be guilty of a major misdemeanourIn awarding punishment under this standing order, the manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist ........"Before the labour court a story of victimisation of the workers had been put forward. The court held that it was totally without any merit as also that "the incidents as alleged by Shri Mukherjee in Ext. A/1 give the correct version as to what exactly had happened and that the findings of the board as recorded in Ex. E seem to be quite clear."The court observed that :"I would have at once answered the reference against the workman but rather serious question of law arises as to the propriety of the order of dismissal in view of the charge No. 2 for alleged interference with the work of other employees .........."3. According to the court, is was not the business of the members of the staff to carry tea from the canteen for Mukherjee and although Prabhunath had no business to ask Hari not to bring tea for him, this act did not constitute interference with Haris work as the latter was not engaged in any lawful duty. In this view of the matter, the court found it difficult to uphold the order of removal from service because it was not clear to what extent the order "was passed on the ground or grounds found bad".4. In our view, the labour court usurped the functions of an appellate court from the order of the board of enquiry. The board had recorded that the work of bringing tea had always been done by the workers. There was nothing unlawful about this work if the workman concerned was inclined to do it, as it had usually been done by other workers, and the conduct of Prabhunath in asking Hari not to do it was nothing short of interference with his work. All that the labour court had jurisdiction to see was whether the board of enquiry had observed the rules of natural justice and conduced the enquiry in a manner to which no exception could be taken. If these conditions were fulfilled and if the standing orders of the company entitled the board to pass an order of removal from service in case of a major misdemeanour, It was not within the jurisdiction of the labour court to order reinstatement of the worker. In this connection, reference may be made to the decision of this Court in State of Orissa v. Bidyabhushan Mohapatra [1963 - Supp. I S.C.R. 648]. In this case the respondent - an employee of the State of Orissa, was charged with having received illegal gratification on several occasions and being in possession of property disproportionate to his income. The Governor referred his case to the Administrative Tribunal constituted under Sec. 4(1) of the Disciplinary Proceedings (Administrative Tribunal) Rules framed under Art. 309 of the Constitution. The Tribunal found four out of the five heads under the first charge and the second charge proved and recommended the; dismissal of the employee. The Governor after giving him a reasonable opportunity of showing cause against the proposed punishment, dismissed him. The High Court held inter alia that the second charge and only two and heads of the first charge could be maintained and directed the Governor to reconsider whether on the basis of these charges the punishment of dismissal could be maintained. It was observed by this Court that :"If the order of dismissal was based on the findings on charges i(a) and i(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor to reconsider the Governor to reconsider the order of dismissal."5. In the instant case, the labour court found no fault with the finding of the board of enquiry on the first charge which by itself, according to the standing orders, might be visited with an order of dismissal from service. As we have already pointed out that it was not for the labour court to sit in appeal over the board of enquiry with regard to the second charge, and even if the second charge had not been proved, the order of dismissal was good on the basis of the first charge.6. The labour court also went into the question as to whether the previous record of the workman and the extenuating circumstances had been considered by the board of enquiry. According to the court, the incident of 16th November, 1965 "was perhaps not so serious as to dismiss an employee." As noticed before, the workman had been in employment of this company for a period of four months only and therefore there could be no question of the consideration of his past record. Nor was there any extenuating circumstances. At any rate, it was not for the labour court to order reinstatement when the board of enquiry had found him guilty of two acts of major misdemeanour rendering him liable to dismissal. The enquiry did not offend any principle of natural justice and the labour court fell into an error in exercising appellate powers by coming to different conclusion. | 1[ds]4. In our view, the labour court usurped the functions of an appellate court from the order of the board of enquiry. The board had recorded that the work of bringing tea had always been done by the workers. There was nothing unlawful about this work if the workman concerned was inclined to do it, as it had usually been done by other workers, and the conduct of Prabhunath in asking Hari not to do it was nothing short of interference with his work. All that the labour court had jurisdiction to see was whether the board of enquiry had observed the rules of natural justice and conduced the enquiry in a manner to which no exception could be taken. If these conditions were fulfilled and if the standing orders of the company entitled the board to pass an order of removal from service in case of a major misdemeanour, It was not within the jurisdiction of the labour court to order reinstatement of the worker. In this connection, reference may be made to the decision of this Court in State of Orissa v. Bidyabhushan Mohapatra [1963Supp. I S.C.R. 648].In the instant case, the labour court found no fault with the finding of the board of enquiry on the first charge which by itself, according to the standing orders, might be visited with an order of dismissal from service. As we have already pointed out that it was not for the labour court to sit in appeal over the board of enquiry with regard to the second charge, and even if the second charge had not been proved, the order of dismissal was good on the basis of the first charge.6. The labour court also went into the question as to whether the previous record of the workman and the extenuating circumstances had been considered by the board of enquiry. According to the court, the incident of 16th November, 1965 "was perhaps not so serious as to dismiss an employee." As noticed before, the workman had been in employment of this company for a period of four months only and therefore there could be no question of the consideration of his past record. Nor was there any extenuating circumstances. At any rate, it was not for the labour court to order reinstatement when the board of enquiry had found him guilty of two acts of major misdemeanour rendering him liable to dismissal. The enquiry did not offend any principle of natural justice and the labour court fell into an error in exercising appellate powers by coming to different conclusion. | 1 | 1,698 | 468 | ### Instruction:
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and that he had falsely implicated Mukherjee of the charge that Mukherjee had thrashed him.According to clause 14(b) of the standing orders of the company, wilful disobedience or insubordination and interference with the work of other employees were to be regarded as major misdemeanours. The said clause of the standing orders provided :"A worker may be dismissed without notice or compensation in lieu of notice if he is found to be guilty of a major misdemeanourIn awarding punishment under this standing order, the manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist ........"Before the labour court a story of victimisation of the workers had been put forward. The court held that it was totally without any merit as also that "the incidents as alleged by Shri Mukherjee in Ext. A/1 give the correct version as to what exactly had happened and that the findings of the board as recorded in Ex. E seem to be quite clear."The court observed that :"I would have at once answered the reference against the workman but rather serious question of law arises as to the propriety of the order of dismissal in view of the charge No. 2 for alleged interference with the work of other employees .........."3. According to the court, is was not the business of the members of the staff to carry tea from the canteen for Mukherjee and although Prabhunath had no business to ask Hari not to bring tea for him, this act did not constitute interference with Haris work as the latter was not engaged in any lawful duty. In this view of the matter, the court found it difficult to uphold the order of removal from service because it was not clear to what extent the order "was passed on the ground or grounds found bad".4. In our view, the labour court usurped the functions of an appellate court from the order of the board of enquiry. The board had recorded that the work of bringing tea had always been done by the workers. There was nothing unlawful about this work if the workman concerned was inclined to do it, as it had usually been done by other workers, and the conduct of Prabhunath in asking Hari not to do it was nothing short of interference with his work. All that the labour court had jurisdiction to see was whether the board of enquiry had observed the rules of natural justice and conduced the enquiry in a manner to which no exception could be taken. If these conditions were fulfilled and if the standing orders of the company entitled the board to pass an order of removal from service in case of a major misdemeanour, It was not within the jurisdiction of the labour court to order reinstatement of the worker. In this connection, reference may be made to the decision of this Court in State of Orissa v. Bidyabhushan Mohapatra [1963 - Supp. I S.C.R. 648]. In this case the respondent - an employee of the State of Orissa, was charged with having received illegal gratification on several occasions and being in possession of property disproportionate to his income. The Governor referred his case to the Administrative Tribunal constituted under Sec. 4(1) of the Disciplinary Proceedings (Administrative Tribunal) Rules framed under Art. 309 of the Constitution. The Tribunal found four out of the five heads under the first charge and the second charge proved and recommended the; dismissal of the employee. The Governor after giving him a reasonable opportunity of showing cause against the proposed punishment, dismissed him. The High Court held inter alia that the second charge and only two and heads of the first charge could be maintained and directed the Governor to reconsider whether on the basis of these charges the punishment of dismissal could be maintained. It was observed by this Court that :"If the order of dismissal was based on the findings on charges i(a) and i(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor to reconsider the Governor to reconsider the order of dismissal."5. In the instant case, the labour court found no fault with the finding of the board of enquiry on the first charge which by itself, according to the standing orders, might be visited with an order of dismissal from service. As we have already pointed out that it was not for the labour court to sit in appeal over the board of enquiry with regard to the second charge, and even if the second charge had not been proved, the order of dismissal was good on the basis of the first charge.6. The labour court also went into the question as to whether the previous record of the workman and the extenuating circumstances had been considered by the board of enquiry. According to the court, the incident of 16th November, 1965 "was perhaps not so serious as to dismiss an employee." As noticed before, the workman had been in employment of this company for a period of four months only and therefore there could be no question of the consideration of his past record. Nor was there any extenuating circumstances. At any rate, it was not for the labour court to order reinstatement when the board of enquiry had found him guilty of two acts of major misdemeanour rendering him liable to dismissal. The enquiry did not offend any principle of natural justice and the labour court fell into an error in exercising appellate powers by coming to different conclusion.
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4. In our view, the labour court usurped the functions of an appellate court from the order of the board of enquiry. The board had recorded that the work of bringing tea had always been done by the workers. There was nothing unlawful about this work if the workman concerned was inclined to do it, as it had usually been done by other workers, and the conduct of Prabhunath in asking Hari not to do it was nothing short of interference with his work. All that the labour court had jurisdiction to see was whether the board of enquiry had observed the rules of natural justice and conduced the enquiry in a manner to which no exception could be taken. If these conditions were fulfilled and if the standing orders of the company entitled the board to pass an order of removal from service in case of a major misdemeanour, It was not within the jurisdiction of the labour court to order reinstatement of the worker. In this connection, reference may be made to the decision of this Court in State of Orissa v. Bidyabhushan Mohapatra [1963Supp. I S.C.R. 648].In the instant case, the labour court found no fault with the finding of the board of enquiry on the first charge which by itself, according to the standing orders, might be visited with an order of dismissal from service. As we have already pointed out that it was not for the labour court to sit in appeal over the board of enquiry with regard to the second charge, and even if the second charge had not been proved, the order of dismissal was good on the basis of the first charge.6. The labour court also went into the question as to whether the previous record of the workman and the extenuating circumstances had been considered by the board of enquiry. According to the court, the incident of 16th November, 1965 "was perhaps not so serious as to dismiss an employee." As noticed before, the workman had been in employment of this company for a period of four months only and therefore there could be no question of the consideration of his past record. Nor was there any extenuating circumstances. At any rate, it was not for the labour court to order reinstatement when the board of enquiry had found him guilty of two acts of major misdemeanour rendering him liable to dismissal. The enquiry did not offend any principle of natural justice and the labour court fell into an error in exercising appellate powers by coming to different conclusion.
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Har Shankar & Ors. Etc. Etc Vs. The Dy. Excise & Taxation Commr. & Ors | by this Court (C. A. Nos. 1642 and 1643 of 1968 decided on 21-8-1972 (SC) ), that there is no material difference between the rules and the procedure adopted in the instant cases and those which were struck down in Bhajan Lals case and therefore the rules and the procedure followed herein must also be struck down for the same reasons.64. This argument overlooks the significant difference between the rules struck down in Bhajan La1s case and in Jage Rams case, and the amended Rules now in force. Under the old Rule 36 (23-A) stiff-head duty which was admittedly in the nature of excise duty was payable by the licensee even on quota not lifted by him. The Rule and condition No. 8 founded on it were therefore struck down in Bhajan Lals case as being beyond the scope of entry 51 of List II, the taxable event under the impugned Rule being the sale and not the manufacture of liquor. Rule 36 was amended on March 31, 1967 in order to meet the judgment in Bhajan Lals case but the High Court found in Jage Rams case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of liquor. The position obtaining under the Rules as amended on March 22, 1968 which are relevant for our purposes is in principle different as the still-head duty is now only 0.64 paise as against Rs. 17.60 per litre. which was in force under the old Rules and excise-duty as such is no longer payable on unlifted quota. The principle governing, the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer.65. As the amount payable by the licensees on the basis of the bids offered by them in auctions and on the basis of Fixed and Assessed Fees is neither a fee in the technical sense nor a tax but is in the nature of the price of a privilege, there is no question of the Financial Commissioner lacking power to organize auctions so as to authorize the recovery of any amount which is not a fee properly so-called. The Financial Commissioner, under Section 34 of the Act read with Rule (sic) (Section) 59 (d), has the power to direct that licences may be granted on payment of such fees, that is, such consideration as he may by rules prescribe. It is open to him to frame a rule, as he has in fact framed Rule 35, directing that any class of licences may be granted on payment of fees fixed by auction. Once it is appreciated that auctions are only a mode or medium for ascertaining the best price obtainable for the grant of privilege to sell liquor, there would be no contradiction in terms in directing as Rule 35 does, that a class of "licences may be granted on the fee fixed by auction."66. The demands for the payment of Fixed Fees made on vendors of Foreign Liquor holding licences in Forms L-3, L-4 and L-5 were challenged on the additional ground that they were contrary to the terms of Rule 12 and therefore illegal. Under Rule 11, applications for renewal of licences for the following year have to be made before the end of October. By Rule 12 the Excise Inspector has to lay before the Collector by the 7th January each year a list of licences requiring, renewal, together with a certificate of sales as provided by Rule 30, to facilitate the determination of assessed fee. No order for renewal can be made after January 20 in respect of licences to be valid for the following financial year, except with the special sanction of the Financial Commissioner. The appellants holding licences for sale of Foreign Liquor applied duly for renewal of their licences and orders granting renewals were passed before January 20. Later the Rules were amended on March 22 and March 30, 1968 under which the appellants holding licences in Form Nos. L-3, L-4 and L-5 became liable to pay fixed fees up to Rs. 20,000 per annum in addition to fees assessed under Rule 31. The grievance of those appellants is that since their licences were renewed in January 1968, the amendments made in March 1968 cannot apply to them and therefore the demand made on the basis of amended rules is illegal.67. It is true that the amendments under which the appellants have been called upon to pay fixed fees were made after the licences were renewed. But the licences, though renewed in January 1968,were to be effective from April 1, 1968.The amendments having come into force before April 1 would govern the appellants licences and they are, therefore, liable to pay the fixed fees under the amended Rules. Licences are granted under Section 34 of the Act subject to the payment of such fees as the Financial Commissioner may direct The rules made under Section 59 (d) authorize the imposition of additional fees and such authorization would operate on all Licences to be effective thereafter.68. We are accordingly of the opinion that the payments demanded from the appellants are lawfully due to the State Government. Such payments are "excise revenue" within the meaning of Section 60 (1) (a) of the Act. Section 3 (9) of the Act defines "excise revenue" to mean "revenue derived or derivable from any payment, duty, fee, tax, confiscation or fine, imposed or ordered under the provisions of this Act, or of any other law for the time being in force relating to liquor or intoxicating drugs, but does not include a fine imposed by a court of law." The payments due from the appellants holding licences in Form L-14A are also due to the Government "on account of any contract relating to the excise revenue" as provided in Section 60 (1) (c) of the Act. It is therefore open to the Government to recover its dues in the manner authorized by Section 60.69. | 0[ds]This objection is well founded and must be accepted.The writ petitions filed by the appellants in the High Court are wholly directed to showing that the Financial Commissioner lacked the power to grant liquor licences through auctions and to levy through the medium of auctions a sum was not a fee in the strict sense of theis interesting that except in the title of the petition showing that it was filed "Under Article 226 of the Constitution of India", the representative Writ Petition (No. 2646 of 1968) does not even refer to so much as any provision of the Constitution much less to the infringement of any Constitutional rights. Apart from this , in the view which we are disposed to take on the main contention, no question of the waiver of a "fundamental right" cansubmission overlooks the material averments contained in the respondents countershort answer to this contention is that the bids given by the appellants constitute offers and upon their acceptance by the Government a binding agreement came into existence between the parties. The conditions of auction become the terms of the contract and it is on those terms that licences are granted to the successful bidders in Form L. 14-A of thethe situation here, a concluded contract must be held to have come into existence between the parties. The appellants have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractualwrit jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. That, however will not estop the appellants from contending that the amended Rules are not applicable as their licences were renewed before the amendments were made.23. Though this is the true position, we do not propose to dismiss the appeals on the narrow ground that the reliefs, or some of them, sought by the appellants cannot be awarded in the writ petitions brought by them.In our opinion, the true position governing dealings in intoxicants is as stated and reflected in the Constitution Bench decisions of this Court in Balsaras case 1951 SCR 682 = (AIR 1951 SC 318 ); Cooverjees case 1954 SCR 873 =(AIR 1954 SC 220 ); Kidwais case 1957 SCR 295 = (AIR 1957 SC 414 ); Nagendra Naths case 1958 SCR 1240 = (AIR 1958 SC 398 ); Amar Chakrabortys case (1973)1 SCR 533 = (AIR J972 SC J863) and the R. M. D. C. case 1957 SCR 874 = (AI.R 1957 SC 699) as interpreted in Harinarayan Jaiswals case (1972) 3 SCR 784 = (AIR 1972 -SC 1816) and Nashirwars AIR 1975 SC 360 .There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants.In the view we have taken, the argument that the Government cannot by contract do what it cannot do under a statute must fail. No statute forbids the Government from trading in its own rights or privileges and the statute under consideration, far from doing so, expressly empowers it by Sections 27 and 34 to grant leases of its rights and to issue the requisite licences, permits or passes on payment of such fees as may be prescribed by the Financial Commissioner.The argument that in Cooverjees case 1954 SCR 873 = (AIR 1954 SC 220 ) the impugned power having been exercised in respect of a centrally administered area, the power was not fettered by legislative lists loses its relevance in the view we are taking. It is true that in that case it was permissible to the court to find, as in fact it did, that the fee imposed on the licences was "more in the nature of a tax than a licence fee." As the authority which levied the fee had the power to exact a tax, the levy could be upheld as a tax even if it could not be justified as a fee, in the constitutional sense of that term. But the Licence fee or Fixed fee in the instant case does not have to conform to the requirement that it must bear a reasonable relationship with the services rendered to the licensees.The amount charged to the licensees is not a fee properly so-called nor indeed a tax but is in the nature of the price of a privilege, which the purchaser has to pay in any trading or business transaction.This answers the main and the more important arguments urged on behalf of the appellants. What remains to be considered is the contention in regard to the scope and extent of the powers of the Financial Commissioner and the legality, otherwise of the demand for the payment of Fixed Fees made on vendors of foreign liquor holding licences in Forms L-3, L-4 andposition obtaining under the Rules as amended on March 22, 1968 which are relevant for our purposes is in principle different as the still-head duty is now only 0.64 paise as against Rs. 17.60 per litre. which was in force under the old Rules and excise-duty as such is no longer payable on unlifted quota. The principle governing, the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer.As the amount payable by the licensees on the basis of the bids offered by them in auctions and on the basis of Fixed and Assessed Fees is neither a fee in the technical sense nor a tax but is in the nature of the price of a privilege, there is no question of the Financial Commissioner lacking power to organize auctions so as to authorize the recovery of any amount which is not a fee properly so-called. The Financial Commissioner, under Section 34 of the Act read with Rule (sic) (Section) 59 (d), has the power to direct that licences may be granted on payment of such fees, that is, such consideration as he may by rules prescribe. It is open to him to frame a rule, as he has in fact framed Rule 35, directing that any class of licences may be granted on payment of fees fixed by auction. Once it is appreciated that auctions are only a mode or medium for ascertaining the best price obtainable for the grant of privilege to sell liquor, there would be no contradiction in terms in directing as Rule 35 does, that a class of "licences may be granted on the fee fixed by auction.The demands for the payment of Fixed Fees made on vendors of Foreign Liquor holding licences in Forms L-3, L-4 and L-5 were challenged on the additional ground that they were contrary to the terms of Rule 12 and therefore illegal. Under Rule 11, applications for renewal of licences for the following year have to be made before the end of October. By Rule 12 the Excise Inspector has to lay before the Collector by the 7th January each year a list of licences requiring, renewal, together with a certificate of sales as provided by Rule 30, to facilitate the determination of assessed fee. No order for renewal can be made after January 20 in respect of licences to be valid for the following financial year, except with the special sanction of the Financial Commissioner. The appellants holding licences for sale of Foreign Liquor applied duly for renewal of their licences and orders granting renewals were passed before January 20. Later the Rules were amended on March 22 and March 30, 1968 under which the appellants holding licences in Form Nos. L-3, L-4 and L-5 became liable to pay fixed fees up to Rs. 20,000 per annum in addition to fees assessed under Rule 31. The grievance of those appellants is that since their licences were renewed in January 1968, the amendments made in March 1968 cannot apply to them and therefore the demand made on the basis of amended rules is illegal.It is true that the amendments under which the appellants have been called upon to pay fixed fees were made after the licences were renewed. But the licences, though renewed in January 1968,were to be effective from April 1, 1968.The amendments having come into force before April 1 would govern the appellants licences and they are, therefore, liable to pay the fixed fees under the amended Rules. Licences are granted under Section 34 of the Act subject to the payment of such fees as the Financial Commissioner may direct The rules made under Section 59 (d) authorize the imposition of additional fees and such authorization would operate on all Licences to be effective thereafter.We are accordingly of the opinion that the payments demanded from the appellants are lawfully due to the State Government. Such payments are "excise revenue" within the meaning of Section 60 (1) (a) of the Act. Section 3 (9) of the Act defines "excise revenue" to mean "revenue derived or derivable from any payment, duty, fee, tax, confiscation or fine, imposed or ordered under the provisions of this Act, or of any other law for the time being in force relating to liquor or intoxicating drugs, but does not include a fine imposed by a court of law." The payments due from the appellants holding licences in Form L-14A are also due to the Government "on account of any contract relating to the excise revenue" as provided in Section 60 (1) (c) of the Act. It is therefore open to the Government to recover its dues in the manner authorized by Section 60. | 0 | 14,074 | 1,795 | ### Instruction:
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by this Court (C. A. Nos. 1642 and 1643 of 1968 decided on 21-8-1972 (SC) ), that there is no material difference between the rules and the procedure adopted in the instant cases and those which were struck down in Bhajan Lals case and therefore the rules and the procedure followed herein must also be struck down for the same reasons.64. This argument overlooks the significant difference between the rules struck down in Bhajan La1s case and in Jage Rams case, and the amended Rules now in force. Under the old Rule 36 (23-A) stiff-head duty which was admittedly in the nature of excise duty was payable by the licensee even on quota not lifted by him. The Rule and condition No. 8 founded on it were therefore struck down in Bhajan Lals case as being beyond the scope of entry 51 of List II, the taxable event under the impugned Rule being the sale and not the manufacture of liquor. Rule 36 was amended on March 31, 1967 in order to meet the judgment in Bhajan Lals case but the High Court found in Jage Rams case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of liquor. The position obtaining under the Rules as amended on March 22, 1968 which are relevant for our purposes is in principle different as the still-head duty is now only 0.64 paise as against Rs. 17.60 per litre. which was in force under the old Rules and excise-duty as such is no longer payable on unlifted quota. The principle governing, the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer.65. As the amount payable by the licensees on the basis of the bids offered by them in auctions and on the basis of Fixed and Assessed Fees is neither a fee in the technical sense nor a tax but is in the nature of the price of a privilege, there is no question of the Financial Commissioner lacking power to organize auctions so as to authorize the recovery of any amount which is not a fee properly so-called. The Financial Commissioner, under Section 34 of the Act read with Rule (sic) (Section) 59 (d), has the power to direct that licences may be granted on payment of such fees, that is, such consideration as he may by rules prescribe. It is open to him to frame a rule, as he has in fact framed Rule 35, directing that any class of licences may be granted on payment of fees fixed by auction. Once it is appreciated that auctions are only a mode or medium for ascertaining the best price obtainable for the grant of privilege to sell liquor, there would be no contradiction in terms in directing as Rule 35 does, that a class of "licences may be granted on the fee fixed by auction."66. The demands for the payment of Fixed Fees made on vendors of Foreign Liquor holding licences in Forms L-3, L-4 and L-5 were challenged on the additional ground that they were contrary to the terms of Rule 12 and therefore illegal. Under Rule 11, applications for renewal of licences for the following year have to be made before the end of October. By Rule 12 the Excise Inspector has to lay before the Collector by the 7th January each year a list of licences requiring, renewal, together with a certificate of sales as provided by Rule 30, to facilitate the determination of assessed fee. No order for renewal can be made after January 20 in respect of licences to be valid for the following financial year, except with the special sanction of the Financial Commissioner. The appellants holding licences for sale of Foreign Liquor applied duly for renewal of their licences and orders granting renewals were passed before January 20. Later the Rules were amended on March 22 and March 30, 1968 under which the appellants holding licences in Form Nos. L-3, L-4 and L-5 became liable to pay fixed fees up to Rs. 20,000 per annum in addition to fees assessed under Rule 31. The grievance of those appellants is that since their licences were renewed in January 1968, the amendments made in March 1968 cannot apply to them and therefore the demand made on the basis of amended rules is illegal.67. It is true that the amendments under which the appellants have been called upon to pay fixed fees were made after the licences were renewed. But the licences, though renewed in January 1968,were to be effective from April 1, 1968.The amendments having come into force before April 1 would govern the appellants licences and they are, therefore, liable to pay the fixed fees under the amended Rules. Licences are granted under Section 34 of the Act subject to the payment of such fees as the Financial Commissioner may direct The rules made under Section 59 (d) authorize the imposition of additional fees and such authorization would operate on all Licences to be effective thereafter.68. We are accordingly of the opinion that the payments demanded from the appellants are lawfully due to the State Government. Such payments are "excise revenue" within the meaning of Section 60 (1) (a) of the Act. Section 3 (9) of the Act defines "excise revenue" to mean "revenue derived or derivable from any payment, duty, fee, tax, confiscation or fine, imposed or ordered under the provisions of this Act, or of any other law for the time being in force relating to liquor or intoxicating drugs, but does not include a fine imposed by a court of law." The payments due from the appellants holding licences in Form L-14A are also due to the Government "on account of any contract relating to the excise revenue" as provided in Section 60 (1) (c) of the Act. It is therefore open to the Government to recover its dues in the manner authorized by Section 60.69.
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in the view we are taking. It is true that in that case it was permissible to the court to find, as in fact it did, that the fee imposed on the licences was "more in the nature of a tax than a licence fee." As the authority which levied the fee had the power to exact a tax, the levy could be upheld as a tax even if it could not be justified as a fee, in the constitutional sense of that term. But the Licence fee or Fixed fee in the instant case does not have to conform to the requirement that it must bear a reasonable relationship with the services rendered to the licensees.The amount charged to the licensees is not a fee properly so-called nor indeed a tax but is in the nature of the price of a privilege, which the purchaser has to pay in any trading or business transaction.This answers the main and the more important arguments urged on behalf of the appellants. What remains to be considered is the contention in regard to the scope and extent of the powers of the Financial Commissioner and the legality, otherwise of the demand for the payment of Fixed Fees made on vendors of foreign liquor holding licences in Forms L-3, L-4 andposition obtaining under the Rules as amended on March 22, 1968 which are relevant for our purposes is in principle different as the still-head duty is now only 0.64 paise as against Rs. 17.60 per litre. which was in force under the old Rules and excise-duty as such is no longer payable on unlifted quota. The principle governing, the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer.As the amount payable by the licensees on the basis of the bids offered by them in auctions and on the basis of Fixed and Assessed Fees is neither a fee in the technical sense nor a tax but is in the nature of the price of a privilege, there is no question of the Financial Commissioner lacking power to organize auctions so as to authorize the recovery of any amount which is not a fee properly so-called. The Financial Commissioner, under Section 34 of the Act read with Rule (sic) (Section) 59 (d), has the power to direct that licences may be granted on payment of such fees, that is, such consideration as he may by rules prescribe. It is open to him to frame a rule, as he has in fact framed Rule 35, directing that any class of licences may be granted on payment of fees fixed by auction. Once it is appreciated that auctions are only a mode or medium for ascertaining the best price obtainable for the grant of privilege to sell liquor, there would be no contradiction in terms in directing as Rule 35 does, that a class of "licences may be granted on the fee fixed by auction.The demands for the payment of Fixed Fees made on vendors of Foreign Liquor holding licences in Forms L-3, L-4 and L-5 were challenged on the additional ground that they were contrary to the terms of Rule 12 and therefore illegal. Under Rule 11, applications for renewal of licences for the following year have to be made before the end of October. By Rule 12 the Excise Inspector has to lay before the Collector by the 7th January each year a list of licences requiring, renewal, together with a certificate of sales as provided by Rule 30, to facilitate the determination of assessed fee. No order for renewal can be made after January 20 in respect of licences to be valid for the following financial year, except with the special sanction of the Financial Commissioner. The appellants holding licences for sale of Foreign Liquor applied duly for renewal of their licences and orders granting renewals were passed before January 20. Later the Rules were amended on March 22 and March 30, 1968 under which the appellants holding licences in Form Nos. L-3, L-4 and L-5 became liable to pay fixed fees up to Rs. 20,000 per annum in addition to fees assessed under Rule 31. The grievance of those appellants is that since their licences were renewed in January 1968, the amendments made in March 1968 cannot apply to them and therefore the demand made on the basis of amended rules is illegal.It is true that the amendments under which the appellants have been called upon to pay fixed fees were made after the licences were renewed. But the licences, though renewed in January 1968,were to be effective from April 1, 1968.The amendments having come into force before April 1 would govern the appellants licences and they are, therefore, liable to pay the fixed fees under the amended Rules. Licences are granted under Section 34 of the Act subject to the payment of such fees as the Financial Commissioner may direct The rules made under Section 59 (d) authorize the imposition of additional fees and such authorization would operate on all Licences to be effective thereafter.We are accordingly of the opinion that the payments demanded from the appellants are lawfully due to the State Government. Such payments are "excise revenue" within the meaning of Section 60 (1) (a) of the Act. Section 3 (9) of the Act defines "excise revenue" to mean "revenue derived or derivable from any payment, duty, fee, tax, confiscation or fine, imposed or ordered under the provisions of this Act, or of any other law for the time being in force relating to liquor or intoxicating drugs, but does not include a fine imposed by a court of law." The payments due from the appellants holding licences in Form L-14A are also due to the Government "on account of any contract relating to the excise revenue" as provided in Section 60 (1) (c) of the Act. It is therefore open to the Government to recover its dues in the manner authorized by Section 60.
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State of Bihar Vs. Tata Iron Steel Company Limited | of such memo or bill. Clause 19 of the Unification Order requires every person holding stock of trade articles mentioned in Schedule 1 and Schedule 11 to sell to the State Government or to any person or class of persons the whole or specified p art of the stock at such price and in such manner as may be specified in the order. Clause 20 provides that every dealer shall furnish a return to the prescribed authority from time to time as notified. It is laid down in Clause 21 that the licensing authority may by general or special order in writing require a dealer holding stock of trade article to sell article on permits issued by the licensing authority. In Part IV there are usual powers to call for information and issue directions to the dealers. 12. The various provisions of the Unification Order show that the purpose of the said order is to make available scheduled articles to the public at fair price and without any holding of stock by the dealers The object of the Unification Order in a nutshell is to make available the essential commodities to the public at large. 13. Having minutely examined the provisions of the Order and the Unification Order, we have no hesitation in concurring with the finding of the Patna High Court in Black Diamonds case that the two operate in different fields. There is hardly any overlapping between the two. The learned counsel for the Company has however invited our attention to clause 15 (display of price), clause 20 (furnishing of returns) clause 21 (sale on permits) and clause 25 (power to issue directions to the dealer) of the Unification Order which according to the learned counsel are covered by the provisions of the Order. We do not agree with the learned counsel. As mentioned above, the provisions of the Order issued by the Central Government are directed for the protection of the allotted/ allocated coal. The Order operates from the stage when the coal is extracted from the mines and continues to regulate its journey till it leaves the colliery and is brought in the open market for sale. The Unification Order, on the other hand, starts operating at a stage when the coal is exposed for open sale in the market. The two operates in entirely different fields. The display of prices, furnishing of returns, sale on permits, power to issue directions to dealers, under the two Control Orders are for entirely different purposes and they operate in different fields. We, therefore, do not agree with the judgment of the Patna High Court in Black Diamonds case that the two Control Orders are likely to conflict witheach other in their operation. Examined from another angle, the Central Government by the Notification dated July 27, 1967 has permitted free sale of non metallurgical coal provided it is consumed in India. When the said coal is sold in open market in the State of Bihar the provisions of the Unification Order, which are meant to protect the interest of the consumers, are squarely attracted and are to be followed even by a colliery which falls within the definition of Dealer under the said Order. 14.We may mention that the Control Orders emanate from the same source. The Order has been issued by the Central Government, whereas the Unification Order has been issued by the State Government of Bihar as a delegate of the Central Government under the Essential Commodities Act, 1955 and further, the Unification Order has been issued with the prior approval of the Central Government. 15. We, therefore, see no justification for the respondent- Company for not complying with the provisions of the Unification Order. The respondent-Company despite being a colliery is bound by the provisions of the Unification Order if it is found to be a dealer under the said Order. 16.The expression dealer has been defined under clause 2(e) of the Unification Order which is as under:- dealer means a person, a firm, an as- sociation of persons or a co-operative society other than a National and State level Co- operative Society, engage in the business of purchase, sale or storage for sale of any trade article whether or not in conjunction with any other business and includes his representative or agent but does not in clude(i)a person who holds or is in possession of agriculture land under any tenure or any capacity and on which he raises or has raised crop of foodgrains. oilseeds or whole pulses; (ii) a manufacturer of sugar; (iii) a producer of pulses and edible oil. Patna High Court in Black Diamonds case came to the conclusion that the colliery being a producer of coal cannot come within the definition of dealer under the Unification Order. We do not agree with the conclusion of the High Court which is based on no reasoning. It is the admitted case of the Company that they sell coal in the open market which has no metallurgical quality. In the written sub- missions filed on behalf of the Company by M/s. J.B. Dadachanji &Co., in paragraph 18 the percentage of clean coal and non metallurgical coal has been given as under: % of the product to the total input Jamadoba West Bokaro Clean Coal 62/65% 38/40% Middlings 19/13% 38/40% Rejects 12/14% 8/10% Slurry 7/8% 10/12% Tailings Clean coal, the only prime quality product of metallurgical quality is meant for manufacture of BP hard coke, All the remaining three are secondary products of the Washeries which are non-metallurgical quality. * There is thus no doubt that the quantity of non- metallurgical coal sold by the Company is not negligible. In any case, the Company is regularly selling non-metal- lurgical coal in the open market and as such it cannot be said that it is not engaged in the business of sale or storage for sale of non metallurgical coal. We have no hesitation in holding that the Company is a dealer under the Unification Order. | 1[ds]7. A plain reading of the above quoted definition makes it clear that it specifically includes a plant for the production of coke or for the washing of coal. The inclusive definition has been given with a purposeOrdinarily, the coke oven plant is at a place where coking coal is converted into Hard Coke for the purposes of using the same in the industry. Coke oven plants are, therefore, set up at various places where Hard Coke is needed for the industry, Since hard coke also comes within the definition of coal under die Order and is subject to control by the Central Government authorities, the coke oven plants which produce hard coke have been rightly included in the definition of colliery. We agree with the above quoted reasoning given by the High Court in reaching the conclusion that the Company is a colliery under the OrderWe may, therefore, briefly examine the provisions of the Order and the Unification Or9. Clause 4 of the Order provides that the Central Government may fix the price at which or the maximum or the minimum price, or both, subject to which coal may be sold by colliery owners. Under Clause 5 no colliery owner or his agent can sell and no person can purchase, coal at a price which is in excess of the price or the maximum price or below the price or the minimum price fixed under clause 4. Clause 7 lays down that every colliery owner or an allottee of coal under the Order shall, on being requested to do so, submit returns and other information in such form and within such time as may be specified in the notice or direction. Clause 8 provides that the Central Government may from time to time issue such directions as it thinks fit to any colliery owner regulating the disposal of his stocks of coal or of the expected output of coal in the colliery, during any period. Under clause 10A the Coal Controller may by order direct that any coal dispatched by any colliery owner which is in transit shall subject to such terms and conditions, if any, as the Coal Controller deems fit, be diverted and delivered to another person specified in the order. Clause 11 provides that the Central Government may issue such directions as it thinks fit to any colliery owner prohibiting or limiting the mining or production of any grade of coal. Clause 28 prohibits any person from using coal so allotted otherwise than in accordance with the conditions contained or incorporated in the order of allotment. Clause 12E provides that no person shall acquire or purchase any coal from a colliery and no colliery owner or his agent shall despatch coal from the colliery except under the authority and in accordance with the conditions contained in a general or special authority from the Central Government. Clause 12G provides that notwithstanding anything contained in Clause 12A, 1 2B and 12E, any person may from September 15, 1975 without any order of allotment or authority acquire or purchase despatch or transfer hard coke produced from beehive ovens, country ovens andt ovens, provided that nothing in this clau se shall apply to hard coke in respect of which direction is issued by the Central Government under Clause 8 of the Order. It may be mentioned that by the notification dated July 24, 1967 the Central Government has authorized any person to ac quire despatch or transfer without any order of allotment or written authority noncoking coals of all grades produced in all coal fields, coking coals not required for metallurgical consumers and coal produced in Assam provided that such coal shall be consumed within India10.It is obvious from the provisions of the Order that it tends to regulate coal from the stage of production to the stage of consumption including price control and inspection. Under the scheme of the Order, the coking coal from various coal mines is allotted to various persons, The provisions of the Order give wide powers to the Central Government to ensure that the coal extracted from the mines is properly utilised for the benefit of the industry and other purposesApart from that, the provisions of the Order give wide powers to the Central Government to keep a track on the allotted coal so that the same is not misutilised11. The Unification order defines the coal to mean coal, coke and other derivatives including soft and hard cokes of various grades. Dealer has been defined under Clause 2(e). Retail dealer has been defined to mean a person engaged in the business of purchase, sale, or storage of any article specified in Schedule 1 for the purpose other than personal consumption within the storage limit fixed by the Government from time to time. Wholesale dealer has been defined to mean a person engaged in business of purchase, sale or storage of any article specified in Schedule 1 for the purpose other than personal consumption within the storage limit fixed by the Government from time to timeCoal dump holder means a person or firm appointed by or on behalf of the Government as such who is engaged in the business of storing coal from collieries on the basis of allocation made by the Government or by any authority empowered by the State Government for sale to retail dealersPart 11 of the Unification Order provides for issuance of licence and prohibits dealer to carry on business of purchase, sale or storage for sale of any of the trade articles mentioned in Schedule. 1, without a licence issued under the Order. Part 11 of the Unification Order imposes restrictions relating to price, stock, etc. It provides that the retail price of any trade article displayed in compliance with the provisions of the Display Order shall not exceed the retail price fixed or recommended by the Central Government or the State Government or manufacturer or distributor from time to time for that trade article. It further provides that no dealer shall sell to any person any trade article at a price higher than that specified in respect of such article in the list of prices and stocks and no dealer shall refuse to sell such article to any person at the price specified. No dealer shall sell any trade article to any person without issuing a cash memo or bill and without keeping a duplicate copy of such memo or bill. Clause 19 of the Unification Order requires every person holding stock of trade articles mentioned in Schedule 1 and Schedule 11 to sell to the State Government or to any person or class of persons the whole or specified p art of the stock at such price and in such manner as may be specified in the order. Clause 20 provides that every dealer shall furnish a return to the prescribed authority from time to time as notified. It is laid down in Clause 21 that the licensing authority may by general or special order in writing require a dealer holding stock of trade article to sell article on permits issued by the licensing authority. In Part IV there are usual powers to call for information and issue directions to the dealers12. The various provisions of the Unification Order show that the purpose of the said order is to make available scheduled articles to the public at fair price and without any holding of stock by the dealers The object of the Unification Order in a nutshell is to make available the essential commodities to the public at large13. Having minutely examined the provisions of the Order and the Unification Order, we have no hesitation in concurring with the finding of the Patna High Court in Black Diamonds case that the two operate in different fields. There is hardly any overlapping between the two. The learned counsel for the Company has however invited our attention to clause 15 (display of price), clause 20 (furnishing of returns) clause 21 (sale on permits) and clause 25 (power to issue directions to the dealer) of the Unification Order which according to the learned counsel are covered by the provisions of the Order. We do not agree with the learned counsel. As mentioned above, the provisions of the Order issued by the Central Government are directed for the protection of the allotted/ allocated coal. The Order operates from the stage when the coal is extracted from the mines and continues to regulate its journey till it leaves the colliery and is brought in the open market for sale. The Unification Order, on the other hand, starts operating at a stage when the coal is exposed for open sale in the market. The two operates in entirely different fields. The display of prices, furnishing of returns, sale on permits, power to issue directions to dealers, under the two Control Orders are for entirely different purposes and they operate in different fields. We, therefore, do not agree with the judgment of the Patna High Court in Black Diamonds case that the two Control Orders are likely to conflict witheach other in their operation. Examined from another angle, the Central Government by the Notification dated July 27, 1967 has permitted free sale of non metallurgical coal provided it is consumed in India. When the said coal is sold in open market in the State of Bihar the provisions of the Unification Order, which are meant to protect the interest of the consumers, are squarely attracted and are to be followed even by a colliery which falls within the definition of Dealer under the said Order14.We may mention that the Control Orders emanate from the same source. The Order has been issued by the Central Government, whereas the Unification Order has been issued by the State Government of Bihar as a delegate of the Central Government under the Essential Commodities Act, 1955 and further, the Unification Order has been issued with the prior approval of the Central Government15. We, therefore, see no justification for the respondentCompany for not complying with the provisions of the Unification Order. They despite being a colliery is bound by the provisions of the Unification Order if it is found to be a dealer under the said Order16.The expression dealer has been defined under clause 2(e) of the Unification Order which is as under:dealer means a person, a firm, an association of persons or ae society other than a National and State level Cooperative Society, engage in the business of purchase, sale or storage for sale of any trade article whether or not in conjunction with any other business and includes his representative or agent but does not in clude(i)a person who holds or is in possession of agriculture land under any tenure or any capacity and on which he raises or has raised crop of foodgrains. oilseeds or whole pulses; (ii) a manufacturer of sugar; (iii) a producer of pulses and edible oil.Patna High Court in Black Diamonds case came to the conclusion that the colliery being a producer of coal cannot come within the definition of dealer under the Unification Order. We do not agree with the conclusion of the High Court which is based on no reasoning. It is the admitted case of the Company that they sell coal in the open market which has no metallurgical quality. In the written submissions filed on behalf of the Company by M/s. J.B. Dadachanji &Co., in paragraph 18 the percentage of clean coal and non metallurgical coal has been given as under:% of the product to the total input Jamadoba West Bokaro Clean Coal 62/65% 38/40% Middlings 19/13% 38/40% Rejects 12/14% 8/10% Slurry 7/8% 10/12% Tailings Clean coal, the only prime quality product of metallurgical quality is meant for manufacture of BP hard coke, All the remaining three are secondary products of the Washeries which areThere is thus no doubt that the quantity of nonmetallurgical coal sold by the Company is not negligibleIn any case, the Company is regularly sellinglurgical coal in the open market and as such it cannot be said that it is not engaged in the business of sale or storage for sale of non metallurgical coal. We have no hesitation in holding that the Company is a dealer under the Unification Order. | 1 | 4,394 | 2,200 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
of such memo or bill. Clause 19 of the Unification Order requires every person holding stock of trade articles mentioned in Schedule 1 and Schedule 11 to sell to the State Government or to any person or class of persons the whole or specified p art of the stock at such price and in such manner as may be specified in the order. Clause 20 provides that every dealer shall furnish a return to the prescribed authority from time to time as notified. It is laid down in Clause 21 that the licensing authority may by general or special order in writing require a dealer holding stock of trade article to sell article on permits issued by the licensing authority. In Part IV there are usual powers to call for information and issue directions to the dealers. 12. The various provisions of the Unification Order show that the purpose of the said order is to make available scheduled articles to the public at fair price and without any holding of stock by the dealers The object of the Unification Order in a nutshell is to make available the essential commodities to the public at large. 13. Having minutely examined the provisions of the Order and the Unification Order, we have no hesitation in concurring with the finding of the Patna High Court in Black Diamonds case that the two operate in different fields. There is hardly any overlapping between the two. The learned counsel for the Company has however invited our attention to clause 15 (display of price), clause 20 (furnishing of returns) clause 21 (sale on permits) and clause 25 (power to issue directions to the dealer) of the Unification Order which according to the learned counsel are covered by the provisions of the Order. We do not agree with the learned counsel. As mentioned above, the provisions of the Order issued by the Central Government are directed for the protection of the allotted/ allocated coal. The Order operates from the stage when the coal is extracted from the mines and continues to regulate its journey till it leaves the colliery and is brought in the open market for sale. The Unification Order, on the other hand, starts operating at a stage when the coal is exposed for open sale in the market. The two operates in entirely different fields. The display of prices, furnishing of returns, sale on permits, power to issue directions to dealers, under the two Control Orders are for entirely different purposes and they operate in different fields. We, therefore, do not agree with the judgment of the Patna High Court in Black Diamonds case that the two Control Orders are likely to conflict witheach other in their operation. Examined from another angle, the Central Government by the Notification dated July 27, 1967 has permitted free sale of non metallurgical coal provided it is consumed in India. When the said coal is sold in open market in the State of Bihar the provisions of the Unification Order, which are meant to protect the interest of the consumers, are squarely attracted and are to be followed even by a colliery which falls within the definition of Dealer under the said Order. 14.We may mention that the Control Orders emanate from the same source. The Order has been issued by the Central Government, whereas the Unification Order has been issued by the State Government of Bihar as a delegate of the Central Government under the Essential Commodities Act, 1955 and further, the Unification Order has been issued with the prior approval of the Central Government. 15. We, therefore, see no justification for the respondent- Company for not complying with the provisions of the Unification Order. The respondent-Company despite being a colliery is bound by the provisions of the Unification Order if it is found to be a dealer under the said Order. 16.The expression dealer has been defined under clause 2(e) of the Unification Order which is as under:- dealer means a person, a firm, an as- sociation of persons or a co-operative society other than a National and State level Co- operative Society, engage in the business of purchase, sale or storage for sale of any trade article whether or not in conjunction with any other business and includes his representative or agent but does not in clude(i)a person who holds or is in possession of agriculture land under any tenure or any capacity and on which he raises or has raised crop of foodgrains. oilseeds or whole pulses; (ii) a manufacturer of sugar; (iii) a producer of pulses and edible oil. Patna High Court in Black Diamonds case came to the conclusion that the colliery being a producer of coal cannot come within the definition of dealer under the Unification Order. We do not agree with the conclusion of the High Court which is based on no reasoning. It is the admitted case of the Company that they sell coal in the open market which has no metallurgical quality. In the written sub- missions filed on behalf of the Company by M/s. J.B. Dadachanji &Co., in paragraph 18 the percentage of clean coal and non metallurgical coal has been given as under: % of the product to the total input Jamadoba West Bokaro Clean Coal 62/65% 38/40% Middlings 19/13% 38/40% Rejects 12/14% 8/10% Slurry 7/8% 10/12% Tailings Clean coal, the only prime quality product of metallurgical quality is meant for manufacture of BP hard coke, All the remaining three are secondary products of the Washeries which are non-metallurgical quality. * There is thus no doubt that the quantity of non- metallurgical coal sold by the Company is not negligible. In any case, the Company is regularly selling non-metal- lurgical coal in the open market and as such it cannot be said that it is not engaged in the business of sale or storage for sale of non metallurgical coal. We have no hesitation in holding that the Company is a dealer under the Unification Order.
### Response:
1
### Explanation:
dealer shall sell any trade article to any person without issuing a cash memo or bill and without keeping a duplicate copy of such memo or bill. Clause 19 of the Unification Order requires every person holding stock of trade articles mentioned in Schedule 1 and Schedule 11 to sell to the State Government or to any person or class of persons the whole or specified p art of the stock at such price and in such manner as may be specified in the order. Clause 20 provides that every dealer shall furnish a return to the prescribed authority from time to time as notified. It is laid down in Clause 21 that the licensing authority may by general or special order in writing require a dealer holding stock of trade article to sell article on permits issued by the licensing authority. In Part IV there are usual powers to call for information and issue directions to the dealers12. The various provisions of the Unification Order show that the purpose of the said order is to make available scheduled articles to the public at fair price and without any holding of stock by the dealers The object of the Unification Order in a nutshell is to make available the essential commodities to the public at large13. Having minutely examined the provisions of the Order and the Unification Order, we have no hesitation in concurring with the finding of the Patna High Court in Black Diamonds case that the two operate in different fields. There is hardly any overlapping between the two. The learned counsel for the Company has however invited our attention to clause 15 (display of price), clause 20 (furnishing of returns) clause 21 (sale on permits) and clause 25 (power to issue directions to the dealer) of the Unification Order which according to the learned counsel are covered by the provisions of the Order. We do not agree with the learned counsel. As mentioned above, the provisions of the Order issued by the Central Government are directed for the protection of the allotted/ allocated coal. The Order operates from the stage when the coal is extracted from the mines and continues to regulate its journey till it leaves the colliery and is brought in the open market for sale. The Unification Order, on the other hand, starts operating at a stage when the coal is exposed for open sale in the market. The two operates in entirely different fields. The display of prices, furnishing of returns, sale on permits, power to issue directions to dealers, under the two Control Orders are for entirely different purposes and they operate in different fields. We, therefore, do not agree with the judgment of the Patna High Court in Black Diamonds case that the two Control Orders are likely to conflict witheach other in their operation. Examined from another angle, the Central Government by the Notification dated July 27, 1967 has permitted free sale of non metallurgical coal provided it is consumed in India. When the said coal is sold in open market in the State of Bihar the provisions of the Unification Order, which are meant to protect the interest of the consumers, are squarely attracted and are to be followed even by a colliery which falls within the definition of Dealer under the said Order14.We may mention that the Control Orders emanate from the same source. The Order has been issued by the Central Government, whereas the Unification Order has been issued by the State Government of Bihar as a delegate of the Central Government under the Essential Commodities Act, 1955 and further, the Unification Order has been issued with the prior approval of the Central Government15. We, therefore, see no justification for the respondentCompany for not complying with the provisions of the Unification Order. They despite being a colliery is bound by the provisions of the Unification Order if it is found to be a dealer under the said Order16.The expression dealer has been defined under clause 2(e) of the Unification Order which is as under:dealer means a person, a firm, an association of persons or ae society other than a National and State level Cooperative Society, engage in the business of purchase, sale or storage for sale of any trade article whether or not in conjunction with any other business and includes his representative or agent but does not in clude(i)a person who holds or is in possession of agriculture land under any tenure or any capacity and on which he raises or has raised crop of foodgrains. oilseeds or whole pulses; (ii) a manufacturer of sugar; (iii) a producer of pulses and edible oil.Patna High Court in Black Diamonds case came to the conclusion that the colliery being a producer of coal cannot come within the definition of dealer under the Unification Order. We do not agree with the conclusion of the High Court which is based on no reasoning. It is the admitted case of the Company that they sell coal in the open market which has no metallurgical quality. In the written submissions filed on behalf of the Company by M/s. J.B. Dadachanji &Co., in paragraph 18 the percentage of clean coal and non metallurgical coal has been given as under:% of the product to the total input Jamadoba West Bokaro Clean Coal 62/65% 38/40% Middlings 19/13% 38/40% Rejects 12/14% 8/10% Slurry 7/8% 10/12% Tailings Clean coal, the only prime quality product of metallurgical quality is meant for manufacture of BP hard coke, All the remaining three are secondary products of the Washeries which areThere is thus no doubt that the quantity of nonmetallurgical coal sold by the Company is not negligibleIn any case, the Company is regularly sellinglurgical coal in the open market and as such it cannot be said that it is not engaged in the business of sale or storage for sale of non metallurgical coal. We have no hesitation in holding that the Company is a dealer under the Unification Order.
|
Union Of India Vs. Sh. Sarvendra Singh Chauhan | the basis of the recommendations of the 6th Central Pay Commission, the President of India approved the introduction of Risk/Hardship Allowance to Central Para Military Force personnel w.e.f. 01.03.2009. The office memorandum dated 16.04.2009 by which the decision was conveyed to all departments concerned contained a clause which is as follows:-"4.CPMF personnel shall have the option to receiving their existing package of compensatory allowances and detachment allowance or the Risk/Hardship Allowances proposed at para-1 and 2 above whichever is beneficial to them.? (emphasis supplied)4. By a letter dated 05.06.2009, the benefit of Risk/Hardship Allowance was extended to Combatised Armed Reserved Personnel in Assam Rifles. They were informed that they have an option to claim Special Compensatory Allowance (remote locality) and detachment allowances or risk allowance whichever is beneficial to them. 5. A clarification was sought on the drawal of Risk/Hardship Allowance by the Shashatra Seema Bal (SSB) on 13.12.2010 as to whether the employees posted in the North-Eastern region were entitled for Risk/Hardship based allowance along with Special (Duty) Allowance. The Government examined the proposal and clarified that the personnel who were getting Risk/Hardship Allowance were not eligible for Special (Duty) Allowance being a compensatory allowance. Consequently, the Director General Assam Rifles passed an order on 12.05.2011 informing the personnel that Special (Duty) Allowance which was being paid along with Risk/Hardship Allowance would be stopped w.e.f. 01.06.2011. The personnel were given an option to choose either Risk/Hardship Allowance or Special (Duty) Allowance. The said order dated 12.05.2011 was challenged by the Respondents in Writ Petition No.147 of 2011 and Writ Petition No. 133 of 2011. A Single Judge of the Guwahati High Court set aside the order dated 12.05.2011 and directed the authorities not to stop the payment of Special (Duty) Allowance until a suitable modification of the notification dated 16.04.2009 is made. The only ground on which the Writ Petitions were allowed was that the Special (Duty) Allowance was given to the personnel by a Presidential sanction whereas its withdrawal was by an order passed by the Director General of Assam Rifles. A Division Bench of the Guwahati High Court affirmed the said judgment of the learned Single Judge. The judgment of the Division Bench of High Court is assailed in these appeals. 6. We have heard Mr. Ranjit Kumar, Solicitor General of India for the Appellants and Mr. Sunil Kumar, learned Senior Counsel for the Respondents. The Solicitor General submitted that Government of India clarified on 23.02.2011 that the eligible persons under the scheme are not entitled for payment of both the Special (Duty) Allowance and Risk/Hardship Allowance. The order dated 12.05.2011 of the Director General of Assam Rifles was only a consequential order issued pursuant to the clarification dated 23.03.2011. Further, he relied upon the order dated 16.04.2009, which was issued with the sanction of the President, to contend that the personnel would be entitled to either the Special (Duty) Allowance or the Risk/Hardship Allowance and not both. According to him, the initial sanction of the allowance itself made it clear that the armed reserved personnel were not entitled for both the allowances and that the question of withdrawal did not arise. It was by a mistake that the personnel working with Assam Rifles were being given both the allowances and after a clarification was given by the Government of India on 23.02.2011, the Director General Assam Rifles had withdrawn the Special (Duty) Allowance. The armed personnel were informed that they have an option to choose between the Special (Duty) Allowance and Risk/Hardship Allowance. To a pointed query by us, the learned Solicitor General submitted that the Special (Duty) Allowance is a compensatory allowance. 7. Countering the submissions of learned Solicitor General, Mr. Sunil Kumar, learned Senior Counsel appearing for the Respondents submitted that Special (Duty) Allowance is not a compensatory allowance and relied upon the letter dated 02.02.1989 written by Deputy Secretary, Ministry of Home Affairs to Director General Assam Rifles whereby the Special (Duty) Allowance was extended to the combatised personnel of Assam Rifles. He referred to the said letter to submit that the combatised and non combatised civil personnel (including officers) were given the benefit of Special (Duty) Allowance. The special compensatory allowance (also called special remote locality allowance) was given only to combatised personnel. He further submitted that the Respondents, being combatised personnel are entitled for both the Special (Duty) Allowance and Risk/Hardship Allowance. 8. We have considered the submissions made by the learned Senior Counsels. The office memorandum dated 16.04.2009 by which the Risk/Hardship Allowance was introduced makes it clear that the CPMF personnel will have the option to receive the existing package of compensatory allowances and detachment allowance or Risk/Hardship Allowance. The existing package of compensatory allowance would necessarily include the Special (Duty) Allowance which, in our opinion, is a compensatory allowance. The Special (Duty) Allowance was introduced on 14.12.1983 to all Central Government civilian employees who were posted in the North Eastern region. The contention of the counsel for the Respondents that the Special (Duty) Allowance is not a compensatory allowance is not correct. The submission on behalf of the Respondents that combatised personnel were given an additional benefit of special compensatory allowance which was not available to the non combatised personnel due to which they would be entitled for payment of both the Special (Duty) Allowance and the Risk/Hardship Allowance is also not acceptable. As stated earlier, the Risk/Hardship Allowance is an alternative to the existing package of compensatory allowances which includes Special (Duty) Allowance. Any ambiguity was already cleared by the Government of India in a clarification sought by the SSB. 9. We are not in agreement with the findings recorded by the High Court that the benefit of Special (Duty) Allowance granted with the sanction of the President could not have been withdrawn by the Director General Assam Rifles. The Director General Assam Rifles was only correcting the mistake that was committed earlier and implementing the office memorandum dated 16.04.2009 as clarified by the Government on 23.02.2011. | 1[ds]8. We have considered the submissions made by the learned Senior Counsels. The office memorandum dated 16.04.2009 by which the Risk/Hardship Allowance was introduced makes it clear that the CPMF personnel will have the option to receive the existing package of compensatory allowances and detachment allowance or Risk/Hardship Allowance. The existing package of compensatory allowance would necessarily include the Special (Duty) Allowance which, in our opinion, is a compensatory allowance. The Special (Duty) Allowance was introduced on 14.12.1983 to all Central Government civilian employees who were posted in the North Eastern region. The contention of the counsel for the Respondents that the Special (Duty) Allowance is not a compensatory allowance is not correct. The submission on behalf of the Respondents that combatised personnel were given an additional benefit of special compensatory allowance which was not available to the non combatised personnel due to which they would be entitled for payment of both the Special (Duty) Allowance and the Risk/Hardship Allowance is also not acceptable. As stated earlier, the Risk/Hardship Allowance is an alternative to the existing package of compensatory allowances which includes Special (Duty) Allowance. Any ambiguity was already cleared by the Government of India in a clarification sought by the SSB.We are not in agreement with the findings recorded by the High Court that the benefit of Special (Duty) Allowance granted with the sanction of the President could not have been withdrawn by the Director General Assam Rifles. The Director General Assam Rifles was only correcting the mistake that was committed earlier and implementing the office memorandum dated 16.04.2009 as clarified by the Government on | 1 | 1,292 | 294 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the basis of the recommendations of the 6th Central Pay Commission, the President of India approved the introduction of Risk/Hardship Allowance to Central Para Military Force personnel w.e.f. 01.03.2009. The office memorandum dated 16.04.2009 by which the decision was conveyed to all departments concerned contained a clause which is as follows:-"4.CPMF personnel shall have the option to receiving their existing package of compensatory allowances and detachment allowance or the Risk/Hardship Allowances proposed at para-1 and 2 above whichever is beneficial to them.? (emphasis supplied)4. By a letter dated 05.06.2009, the benefit of Risk/Hardship Allowance was extended to Combatised Armed Reserved Personnel in Assam Rifles. They were informed that they have an option to claim Special Compensatory Allowance (remote locality) and detachment allowances or risk allowance whichever is beneficial to them. 5. A clarification was sought on the drawal of Risk/Hardship Allowance by the Shashatra Seema Bal (SSB) on 13.12.2010 as to whether the employees posted in the North-Eastern region were entitled for Risk/Hardship based allowance along with Special (Duty) Allowance. The Government examined the proposal and clarified that the personnel who were getting Risk/Hardship Allowance were not eligible for Special (Duty) Allowance being a compensatory allowance. Consequently, the Director General Assam Rifles passed an order on 12.05.2011 informing the personnel that Special (Duty) Allowance which was being paid along with Risk/Hardship Allowance would be stopped w.e.f. 01.06.2011. The personnel were given an option to choose either Risk/Hardship Allowance or Special (Duty) Allowance. The said order dated 12.05.2011 was challenged by the Respondents in Writ Petition No.147 of 2011 and Writ Petition No. 133 of 2011. A Single Judge of the Guwahati High Court set aside the order dated 12.05.2011 and directed the authorities not to stop the payment of Special (Duty) Allowance until a suitable modification of the notification dated 16.04.2009 is made. The only ground on which the Writ Petitions were allowed was that the Special (Duty) Allowance was given to the personnel by a Presidential sanction whereas its withdrawal was by an order passed by the Director General of Assam Rifles. A Division Bench of the Guwahati High Court affirmed the said judgment of the learned Single Judge. The judgment of the Division Bench of High Court is assailed in these appeals. 6. We have heard Mr. Ranjit Kumar, Solicitor General of India for the Appellants and Mr. Sunil Kumar, learned Senior Counsel for the Respondents. The Solicitor General submitted that Government of India clarified on 23.02.2011 that the eligible persons under the scheme are not entitled for payment of both the Special (Duty) Allowance and Risk/Hardship Allowance. The order dated 12.05.2011 of the Director General of Assam Rifles was only a consequential order issued pursuant to the clarification dated 23.03.2011. Further, he relied upon the order dated 16.04.2009, which was issued with the sanction of the President, to contend that the personnel would be entitled to either the Special (Duty) Allowance or the Risk/Hardship Allowance and not both. According to him, the initial sanction of the allowance itself made it clear that the armed reserved personnel were not entitled for both the allowances and that the question of withdrawal did not arise. It was by a mistake that the personnel working with Assam Rifles were being given both the allowances and after a clarification was given by the Government of India on 23.02.2011, the Director General Assam Rifles had withdrawn the Special (Duty) Allowance. The armed personnel were informed that they have an option to choose between the Special (Duty) Allowance and Risk/Hardship Allowance. To a pointed query by us, the learned Solicitor General submitted that the Special (Duty) Allowance is a compensatory allowance. 7. Countering the submissions of learned Solicitor General, Mr. Sunil Kumar, learned Senior Counsel appearing for the Respondents submitted that Special (Duty) Allowance is not a compensatory allowance and relied upon the letter dated 02.02.1989 written by Deputy Secretary, Ministry of Home Affairs to Director General Assam Rifles whereby the Special (Duty) Allowance was extended to the combatised personnel of Assam Rifles. He referred to the said letter to submit that the combatised and non combatised civil personnel (including officers) were given the benefit of Special (Duty) Allowance. The special compensatory allowance (also called special remote locality allowance) was given only to combatised personnel. He further submitted that the Respondents, being combatised personnel are entitled for both the Special (Duty) Allowance and Risk/Hardship Allowance. 8. We have considered the submissions made by the learned Senior Counsels. The office memorandum dated 16.04.2009 by which the Risk/Hardship Allowance was introduced makes it clear that the CPMF personnel will have the option to receive the existing package of compensatory allowances and detachment allowance or Risk/Hardship Allowance. The existing package of compensatory allowance would necessarily include the Special (Duty) Allowance which, in our opinion, is a compensatory allowance. The Special (Duty) Allowance was introduced on 14.12.1983 to all Central Government civilian employees who were posted in the North Eastern region. The contention of the counsel for the Respondents that the Special (Duty) Allowance is not a compensatory allowance is not correct. The submission on behalf of the Respondents that combatised personnel were given an additional benefit of special compensatory allowance which was not available to the non combatised personnel due to which they would be entitled for payment of both the Special (Duty) Allowance and the Risk/Hardship Allowance is also not acceptable. As stated earlier, the Risk/Hardship Allowance is an alternative to the existing package of compensatory allowances which includes Special (Duty) Allowance. Any ambiguity was already cleared by the Government of India in a clarification sought by the SSB. 9. We are not in agreement with the findings recorded by the High Court that the benefit of Special (Duty) Allowance granted with the sanction of the President could not have been withdrawn by the Director General Assam Rifles. The Director General Assam Rifles was only correcting the mistake that was committed earlier and implementing the office memorandum dated 16.04.2009 as clarified by the Government on 23.02.2011.
### Response:
1
### Explanation:
8. We have considered the submissions made by the learned Senior Counsels. The office memorandum dated 16.04.2009 by which the Risk/Hardship Allowance was introduced makes it clear that the CPMF personnel will have the option to receive the existing package of compensatory allowances and detachment allowance or Risk/Hardship Allowance. The existing package of compensatory allowance would necessarily include the Special (Duty) Allowance which, in our opinion, is a compensatory allowance. The Special (Duty) Allowance was introduced on 14.12.1983 to all Central Government civilian employees who were posted in the North Eastern region. The contention of the counsel for the Respondents that the Special (Duty) Allowance is not a compensatory allowance is not correct. The submission on behalf of the Respondents that combatised personnel were given an additional benefit of special compensatory allowance which was not available to the non combatised personnel due to which they would be entitled for payment of both the Special (Duty) Allowance and the Risk/Hardship Allowance is also not acceptable. As stated earlier, the Risk/Hardship Allowance is an alternative to the existing package of compensatory allowances which includes Special (Duty) Allowance. Any ambiguity was already cleared by the Government of India in a clarification sought by the SSB.We are not in agreement with the findings recorded by the High Court that the benefit of Special (Duty) Allowance granted with the sanction of the President could not have been withdrawn by the Director General Assam Rifles. The Director General Assam Rifles was only correcting the mistake that was committed earlier and implementing the office memorandum dated 16.04.2009 as clarified by the Government on
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Fatma Haji All Mohammad Hajiand Others Vs. The State Of Bombay | decree; (b) through a Revenue court or officer by issuing a certificate to that court or officer. The language employed in this section does not place the Registrar on the same pedestal as a court passing the decree under the Civil Procedure Code. Under the Code a civil court passing a decree is also the court executing the decree. It has a dual capacity, (1) of the court passing the decree, and (2) of the executing court. The Registrar, it appears, has the first capacity of a civil court but he has not been placed in the matter of execution in the same capacity as a civil court passing a decree. The only jurisdiction conferred on the Registrar is that he can issue a certificate and on that certificate he can send a decree either to the civil court or to a revenue officer. It may be that after issuing a certificate he may be entitled to cancel the certificate or issue another, or he may by with - drawing the certificate withdraw execution from a civil court and send it to a revenue court and vice versa. On the plain words of the section it cannot be held that the Registrar has been constituted an executing court or that any powers in the matter of the execution of the award decree have been conferred upon him. The question that arises for consideration is whether in view of this construction of the section it was open to the Registrar to intervene during execution proceedings that were pending in a civil court on the basis of the certificate granted by him. In order to determine this point it is necessary to see precisely what the Registrar actually did in this case. After a default had been made in the payment of the first instalment and the whole decree debt had become due and execution had been taken out for recovery of the amount, the Registrar accepted the amount of the first instalment and asked the executing court to stop further proceedings. The act of the Registrar in accepting the first instalment was a clear trespass on the duties of the executing court. It is only in the executing court where payment towards satisfaction of the decree, the execution of which had been taken out, could be made, unless the court passing the decree has also the jurisdiction to execute it. As already indicated,, this jurisdiction is not possessed by the Registrar. That being so, in our opinion, the requisition of the Registrar to the executing court to stop execution proceedings and his act in accepting the first instalment were in excess of the jurisdiction conferred on him and the executing court was entitled to ignore it. Moreover, the Registrar could not alter or amend the decree passed by the Arbitrator at this stage. (4) All the courts below have interpreted the section to mean that the Registrar as the court passing the decree has the same power as the court executing it. We are unable to agree in this view in view of the clear language employed in the section. The analogy of decisions given in respect of civil courts is not available in interpreting this Act. Under the Civil Procedure Code the parent court, i.e., the court passing the decree, always retains jurisdiction to execute the decree even if it has been transferred to one or more courts for the purpose of execution. Primarily it is the function of the court passing the decree to execute it but when it is found that it is not possible for it to effectively execute it provision has been made in the Code authorising it to send it to other courts the purpose of execution; but none of these provisions in any way affect the jurisdiction of the court passing the decree to execute it whenever it thinks fit to do so and the order transferring execution to other courts does not take away its jurisdiction in the matter. The position however in the case of the Registrar is entirely different. He himself has been given no jurisdiction to execute his own decree. The only power conferred on him is to get it realized through a civil court or a revenue court and the only authority conferred on him is to issue a certificate for that purpose. (5) The High court in this case has, in our opinion given a decision contradictory to its own findings. It has been held that the first appellate court was in error in the view that the default clause in the decree stood condoned by the payment of the first instalment by the judgment-debtor in the office of the Registrar and it has been positively found that once a default has been made the Registrar had no jurisdiction to condone it and that the decree-holder was entitled to execute the decree for the full decretal amount with interest. Having reached this conclusion the High court still maintained the decision of the two courts below adjourning the execution proceedings. The logical result of the High courts decision is that the certificate stands and the execution application has been properly made and the decree-holder is entitled to the relief claimed but in spite of it has been held that the Registrar can stay the proceedings. It seems to us that the act of the Registrar in asking the civil court to stay execution proceedings pending before it is a clear encroachment on the powers of the executing court and is in excess of his statutory powers and should have been ignored by the courts. (6) As a fresh certificate was issued by the Nazim in order to cure a defect that might be said to exist in the original certificate because of its having been sent by the Madadgar Nazim, it is unnecessary to consider the contention of the learned counsel that there was no proper certificate in this case and the proceedings in execution therefore were without jurisdiction. | 1[ds](4) All the courts below have interpreted the section to mean that the Registrar as the court passing the decree has the same power as the court executing it. We are unable to agree in this view in view of the clear language employed in the section. The analogy of decisions given in respect of civil courts is not available in interpreting this Act. Under the Civil Procedure Code the parent court, i.e., the court passing the decree, always retains jurisdiction to execute the decree even if it has been transferred to one or more courts for the purpose of execution. Primarily it is the function of the court passing the decree to execute it but when it is found that it is not possible for it to effectively execute it provision has been made in the Code authorising it to send it to other courts the purpose of execution; but none of these provisions in any way affect the jurisdiction of the court passing the decree to execute it whenever it thinks fit to do so and the order transferring execution to other courts does not take away its jurisdiction in the matter. The position however in the case of the Registrar is entirely different. He himself has been given no jurisdiction to execute his own decree. The only power conferred on him is to get it realized through a civil court or a revenue court and the only authority conferred on him is to issue a certificate for that purpose(5) The High court in this case has, in our opinion given a decision contradictory to its own findings. It has been held that the first appellate court was in error in the view that the default clause in the decree stood condoned by the payment of the first instalment by the judgment-debtor in the office of the Registrar and it has been positively found that once a default has been made the Registrar had no jurisdiction to condone it and that the decree-holder was entitled to execute the decree for the full decretal amount with interest. Having reached this conclusion the High court still maintained the decision of the two courts below adjourning the execution proceedings. The logical result of the High courts decision is that the certificate stands and the execution application has been properly made and the decree-holder is entitled to the relief claimed but in spite of it has been held that the Registrar can stay the proceedings. It seems to us that the act of the Registrar in asking the civil court to stay execution proceedings pending before it is a clear encroachment on the powers of the executing court and is in excess of his statutory powers and should have been ignored by the courts(6) As a fresh certificate was issued by the Nazim in order to cure a defect that might be said to exist in the original certificate because of its having been sent by the Madadgar Nazim, it is unnecessary to consider the contention of the learned counsel that there was no proper certificate in this case and the proceedings in execution therefore were without jurisdiction. | 1 | 1,973 | 556 | ### Instruction:
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decree; (b) through a Revenue court or officer by issuing a certificate to that court or officer. The language employed in this section does not place the Registrar on the same pedestal as a court passing the decree under the Civil Procedure Code. Under the Code a civil court passing a decree is also the court executing the decree. It has a dual capacity, (1) of the court passing the decree, and (2) of the executing court. The Registrar, it appears, has the first capacity of a civil court but he has not been placed in the matter of execution in the same capacity as a civil court passing a decree. The only jurisdiction conferred on the Registrar is that he can issue a certificate and on that certificate he can send a decree either to the civil court or to a revenue officer. It may be that after issuing a certificate he may be entitled to cancel the certificate or issue another, or he may by with - drawing the certificate withdraw execution from a civil court and send it to a revenue court and vice versa. On the plain words of the section it cannot be held that the Registrar has been constituted an executing court or that any powers in the matter of the execution of the award decree have been conferred upon him. The question that arises for consideration is whether in view of this construction of the section it was open to the Registrar to intervene during execution proceedings that were pending in a civil court on the basis of the certificate granted by him. In order to determine this point it is necessary to see precisely what the Registrar actually did in this case. After a default had been made in the payment of the first instalment and the whole decree debt had become due and execution had been taken out for recovery of the amount, the Registrar accepted the amount of the first instalment and asked the executing court to stop further proceedings. The act of the Registrar in accepting the first instalment was a clear trespass on the duties of the executing court. It is only in the executing court where payment towards satisfaction of the decree, the execution of which had been taken out, could be made, unless the court passing the decree has also the jurisdiction to execute it. As already indicated,, this jurisdiction is not possessed by the Registrar. That being so, in our opinion, the requisition of the Registrar to the executing court to stop execution proceedings and his act in accepting the first instalment were in excess of the jurisdiction conferred on him and the executing court was entitled to ignore it. Moreover, the Registrar could not alter or amend the decree passed by the Arbitrator at this stage. (4) All the courts below have interpreted the section to mean that the Registrar as the court passing the decree has the same power as the court executing it. We are unable to agree in this view in view of the clear language employed in the section. The analogy of decisions given in respect of civil courts is not available in interpreting this Act. Under the Civil Procedure Code the parent court, i.e., the court passing the decree, always retains jurisdiction to execute the decree even if it has been transferred to one or more courts for the purpose of execution. Primarily it is the function of the court passing the decree to execute it but when it is found that it is not possible for it to effectively execute it provision has been made in the Code authorising it to send it to other courts the purpose of execution; but none of these provisions in any way affect the jurisdiction of the court passing the decree to execute it whenever it thinks fit to do so and the order transferring execution to other courts does not take away its jurisdiction in the matter. The position however in the case of the Registrar is entirely different. He himself has been given no jurisdiction to execute his own decree. The only power conferred on him is to get it realized through a civil court or a revenue court and the only authority conferred on him is to issue a certificate for that purpose. (5) The High court in this case has, in our opinion given a decision contradictory to its own findings. It has been held that the first appellate court was in error in the view that the default clause in the decree stood condoned by the payment of the first instalment by the judgment-debtor in the office of the Registrar and it has been positively found that once a default has been made the Registrar had no jurisdiction to condone it and that the decree-holder was entitled to execute the decree for the full decretal amount with interest. Having reached this conclusion the High court still maintained the decision of the two courts below adjourning the execution proceedings. The logical result of the High courts decision is that the certificate stands and the execution application has been properly made and the decree-holder is entitled to the relief claimed but in spite of it has been held that the Registrar can stay the proceedings. It seems to us that the act of the Registrar in asking the civil court to stay execution proceedings pending before it is a clear encroachment on the powers of the executing court and is in excess of his statutory powers and should have been ignored by the courts. (6) As a fresh certificate was issued by the Nazim in order to cure a defect that might be said to exist in the original certificate because of its having been sent by the Madadgar Nazim, it is unnecessary to consider the contention of the learned counsel that there was no proper certificate in this case and the proceedings in execution therefore were without jurisdiction.
### Response:
1
### Explanation:
(4) All the courts below have interpreted the section to mean that the Registrar as the court passing the decree has the same power as the court executing it. We are unable to agree in this view in view of the clear language employed in the section. The analogy of decisions given in respect of civil courts is not available in interpreting this Act. Under the Civil Procedure Code the parent court, i.e., the court passing the decree, always retains jurisdiction to execute the decree even if it has been transferred to one or more courts for the purpose of execution. Primarily it is the function of the court passing the decree to execute it but when it is found that it is not possible for it to effectively execute it provision has been made in the Code authorising it to send it to other courts the purpose of execution; but none of these provisions in any way affect the jurisdiction of the court passing the decree to execute it whenever it thinks fit to do so and the order transferring execution to other courts does not take away its jurisdiction in the matter. The position however in the case of the Registrar is entirely different. He himself has been given no jurisdiction to execute his own decree. The only power conferred on him is to get it realized through a civil court or a revenue court and the only authority conferred on him is to issue a certificate for that purpose(5) The High court in this case has, in our opinion given a decision contradictory to its own findings. It has been held that the first appellate court was in error in the view that the default clause in the decree stood condoned by the payment of the first instalment by the judgment-debtor in the office of the Registrar and it has been positively found that once a default has been made the Registrar had no jurisdiction to condone it and that the decree-holder was entitled to execute the decree for the full decretal amount with interest. Having reached this conclusion the High court still maintained the decision of the two courts below adjourning the execution proceedings. The logical result of the High courts decision is that the certificate stands and the execution application has been properly made and the decree-holder is entitled to the relief claimed but in spite of it has been held that the Registrar can stay the proceedings. It seems to us that the act of the Registrar in asking the civil court to stay execution proceedings pending before it is a clear encroachment on the powers of the executing court and is in excess of his statutory powers and should have been ignored by the courts(6) As a fresh certificate was issued by the Nazim in order to cure a defect that might be said to exist in the original certificate because of its having been sent by the Madadgar Nazim, it is unnecessary to consider the contention of the learned counsel that there was no proper certificate in this case and the proceedings in execution therefore were without jurisdiction.
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Commissioner of Income Tax Vs. Corporation Bank Limited | The assessee, a banking company, had the assessment for the year ending on December 31, 1968, completed on October 4, 1969. Subsequently, however, the assessment was reopened under section 147(a) of the Income-tax Act, 1961, to bring to tax a sum of Rs. 54, 485 in respect of interest suspense account. It is, however, according to the assessee, the sums representing interest on loans, recovery of which was considered doubtful.Incidentally be it noted that the assessee had disclosed this sum of Rs. 54, 485 in the balance-sheet as unrealised amount of interest along with the return filed by it and the Income-tax Officer had accepted the return and as a matter of fact had excluded that amount in the assessment order completed on October 4, 1969.The factual score depicts that in terms of a notice under section 147(a) of the Act, the assessment was reopened and a sum of Rs. 54, 485 was subjected to tax on the ground that the interest accrued and due on the loans advanced by the bank was the income of the bank for the relevant assessment year and the assessee has failed to disclose this income in the return filed earlier.In the appeal against the reassessment order, the Commissioner of Income-tax (Appeals) upheld the order of the Income-tax Officer and on further appeal, the Tribunal, however, reversed the view of the Commissioner and held that the instructions of the Central Board of Direct Taxes contained in circular dated October 6, 1952, would govern the case and the reopening was not justified and on a reference before the High Court under section 256(1) of the Income-tax Act, the High Court answered the reference in favour of the assessee upon recording its approval on to the order of the Tribunal.The records depict that two questions were raised before the High Court (see 1983 KAR 56) namely :"1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is right in law in holding that the provisions of section 147(a) are not attracted ?2. Whether, on the facts and in the circumstance of the case, the Income-tax Appellate Tribunal is right in law in holding that the interest of Rs. 54, 485 taken directly to interest suspense account is not assessable to income-tax ?" * So far as the second question is concerned, the High Court recorded that the matter need not be gone into by reason of the circular dated October 6, 1952, issued by the Central Board of Direct Taxes. Neither do we feel it necessary to go into the issue any further.Turning attention to the first question as regards the provisions under section 147(a) be it noted and as the facts depict, there is no failure on the part of the assessee in furnishing the particulars pertaining to the above noted sum as not recoverable for the relevant accounting year and the statements filed along with the original return disclosed the full details of the aforesaid account. There is, therefore, no failure on the part of the assessee to disclose fully and truly the material facts necessary for the assessment years for the respective years and as such section 147(a) has no manner of application and is not attracted in the facts of the matter under consideration. The High Court on consideration of the facts came to the conclusion that the Tribunal was justified in coming to the said finding and we also record our concurrence therewith.Incidentally this issue came for consideration before this court in a batch of cases on more or less identical situations and this court while dealing with this matter finally, recorded that the question as regards reopening of the assessment under section 147(a) of the Act would not arise further. The question in the facts of the matter under consideration is thus covered by the judgment of this court in State Bank of Travancore v. CIT 1986 SC 796. | 0[ds]Turning attention to the first question as regards the provisions under section 147(a) be it noted and as the facts depict, there is no failure on the part of the assessee in furnishing the particulars pertaining to the above noted sum as not recoverable for the relevant accounting year and the statements filed along with the original return disclosed the full details of the aforesaid account. There is, therefore, no failure on the part of the assessee to disclose fully and truly the material facts necessary for the assessment years for the respective years and as such section 147(a) has no manner of application and is not attracted in the facts of the matter under consideration. The High Court on consideration of the facts came to the conclusion that the Tribunal was justified in coming to the said finding and we also record our concurrence therewith.Incidentally this issue came for consideration before this court in a batch of cases on more or less identical situations and this court while dealing with this matter finally, recorded that the question as regards reopening of the assessment under section 147(a) of the Act would not arise further. The question in the facts of the matter under consideration is thus covered by the judgment of this court in State Bank of Travancore v. CIT 1986 SC 796. | 0 | 734 | 244 | ### Instruction:
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The assessee, a banking company, had the assessment for the year ending on December 31, 1968, completed on October 4, 1969. Subsequently, however, the assessment was reopened under section 147(a) of the Income-tax Act, 1961, to bring to tax a sum of Rs. 54, 485 in respect of interest suspense account. It is, however, according to the assessee, the sums representing interest on loans, recovery of which was considered doubtful.Incidentally be it noted that the assessee had disclosed this sum of Rs. 54, 485 in the balance-sheet as unrealised amount of interest along with the return filed by it and the Income-tax Officer had accepted the return and as a matter of fact had excluded that amount in the assessment order completed on October 4, 1969.The factual score depicts that in terms of a notice under section 147(a) of the Act, the assessment was reopened and a sum of Rs. 54, 485 was subjected to tax on the ground that the interest accrued and due on the loans advanced by the bank was the income of the bank for the relevant assessment year and the assessee has failed to disclose this income in the return filed earlier.In the appeal against the reassessment order, the Commissioner of Income-tax (Appeals) upheld the order of the Income-tax Officer and on further appeal, the Tribunal, however, reversed the view of the Commissioner and held that the instructions of the Central Board of Direct Taxes contained in circular dated October 6, 1952, would govern the case and the reopening was not justified and on a reference before the High Court under section 256(1) of the Income-tax Act, the High Court answered the reference in favour of the assessee upon recording its approval on to the order of the Tribunal.The records depict that two questions were raised before the High Court (see 1983 KAR 56) namely :"1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is right in law in holding that the provisions of section 147(a) are not attracted ?2. Whether, on the facts and in the circumstance of the case, the Income-tax Appellate Tribunal is right in law in holding that the interest of Rs. 54, 485 taken directly to interest suspense account is not assessable to income-tax ?" * So far as the second question is concerned, the High Court recorded that the matter need not be gone into by reason of the circular dated October 6, 1952, issued by the Central Board of Direct Taxes. Neither do we feel it necessary to go into the issue any further.Turning attention to the first question as regards the provisions under section 147(a) be it noted and as the facts depict, there is no failure on the part of the assessee in furnishing the particulars pertaining to the above noted sum as not recoverable for the relevant accounting year and the statements filed along with the original return disclosed the full details of the aforesaid account. There is, therefore, no failure on the part of the assessee to disclose fully and truly the material facts necessary for the assessment years for the respective years and as such section 147(a) has no manner of application and is not attracted in the facts of the matter under consideration. The High Court on consideration of the facts came to the conclusion that the Tribunal was justified in coming to the said finding and we also record our concurrence therewith.Incidentally this issue came for consideration before this court in a batch of cases on more or less identical situations and this court while dealing with this matter finally, recorded that the question as regards reopening of the assessment under section 147(a) of the Act would not arise further. The question in the facts of the matter under consideration is thus covered by the judgment of this court in State Bank of Travancore v. CIT 1986 SC 796.
### Response:
0
### Explanation:
Turning attention to the first question as regards the provisions under section 147(a) be it noted and as the facts depict, there is no failure on the part of the assessee in furnishing the particulars pertaining to the above noted sum as not recoverable for the relevant accounting year and the statements filed along with the original return disclosed the full details of the aforesaid account. There is, therefore, no failure on the part of the assessee to disclose fully and truly the material facts necessary for the assessment years for the respective years and as such section 147(a) has no manner of application and is not attracted in the facts of the matter under consideration. The High Court on consideration of the facts came to the conclusion that the Tribunal was justified in coming to the said finding and we also record our concurrence therewith.Incidentally this issue came for consideration before this court in a batch of cases on more or less identical situations and this court while dealing with this matter finally, recorded that the question as regards reopening of the assessment under section 147(a) of the Act would not arise further. The question in the facts of the matter under consideration is thus covered by the judgment of this court in State Bank of Travancore v. CIT 1986 SC 796.
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The State of Bihar & Ors Vs. Madhu Kant Ranjan & Anr | were published on 26.12.2007. Observing so the learned Single Judge held that in absence of necessary pleadings that the petitioner had annexed his NCC B certificate alongwith his original application, the Court finds it difficult to issue any positive direction with regard to the consideration of his candidature. The order passed by the learned Single Judge reads as under:- Heard learned counsel for the petitioner and the State. The petitioner was an applicant for appointment on the post of Constable under advertisement no. 1 of 2004. Having applied in response to the same, he appeared for physical test on 8.5.2006 when he was given 12 marks. The grievance is that he has been denied the benefit of 5 marks under the advertisement with regard to NCC-B certificate possessed by him as provided for in the advertisement. In this manner, while his marks were total 17 making him eligible for appointment, those with lesser marks have been appointed when his candidate has been considered on the basis of 12 1narks only. There is no pleading in the writ application that the petitioner has annexed his NCC-B certificate in support of his claim along with the original application. It appears from the pleadings that he did submit the same after the physical test on 15.1.2007 before the results were published on 26.12.2007. Strong reliance has been placed on the information furnished to the petitioner under Right to Information Act by Annexure-8 dated 23.6.2008 in support of the plea. In absence of necessary pleadings that the petitioner had annexed his NCC-B certificate along with his original application, this Court finds it difficult to issue any positive direction with regard to consideration of the candidature of the petitioner. If the petitioner had originally annexed his NCC-B certificate along with his application, naturally he is required to be considered on basis of 17 marks as mentioned in Annexurte-8 dated 23.6.2008. But, if the petitioner had not annexed such documents with his original application and submitted the same subsequently after physical test but before the publication of the results, the matter shall remain in the discretion of the Respondents and it is not possible for this Court to pass any positive orders on the aspect of consideration of his candidature. The Court is of such view for the reason that if this Court was to direct any relaxation of any condition, it would amount to violation of Article 14 of the Constitution by a judicial order. The writ application stands disposed in the aforesaid terms for an appropriate decision by the Respondents within a maximum period of six weeks from the date of receipt and/ or production of a copy of this order. 7. Thus, as per the pleadings in the earlier writ petition being CWJC No.5431 of 2008, there was no averment in support of his claim that he had annexed his NCC B certificate alongwith the original application. However, when subsequently the present writ petition was filed, the original writ petitioner came out with a contrary stand that he had produced all the necessary documents including the NCC B certificate alongwith his original application. The aforesaid is nothing but an afterthought. Having failed to get any positive direction in the earlier writ petition on the ground that there is no pleading that he had annexed his NCC B certificate alongwith the original application, he is not entitled to any positive direction and the original writ petitioner cannot be permitted to improve his case in the subsequent litigation, when it was not his case in the earlier round of litigation. 8. At the cost of repetition, it is to be observed that in the earlier round of litigation, the learned Single Judge specifically observed that there is no pleading in the writ petition that the petitioner had annexed his NCC B certificate alongwith the original application. Once, it is found that the respondent No.1– original writ petitioner did not submit the photocopy of the NCC B certificate alongwith the original application which was the requirement as per the advertisement and the cut-off date as per the advertisement was 22.02.2004 and he produced the same after the physical test on 15.01.2007, the appointing authority rightly held that he shall not be entitled to additional five marks of NCC B certificate. Though in the select list dated 08.09.2007, he was awarded 17 marks, which included five additional marks of NCC B certificate, the appointing authority disagreed with the same on the ground that as photocopy of the NCC B certificate was not produced alongwith his application form, which was the requirement as per the advertisement, he shall not be entitled to five additional marks of NCC B certificate. Therefore, when a decision was taken on the representation made by the respondent No.1 – original writ petitioner which was pursuant to the earlier order passed by the learned Single Judge in writ petition being CWJC No.5431 of 2008, the authority rightly refused to allot/award five additional marks of NCC B certificate. 9. As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted alongwith the application form, which are required to be submitted as per the advertisement have to be considered. Therefore, when the respondent No.1 – original writ petitioner did not produce the photocopy of the NCC B certificate alongwith the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC B certificate. In these circumstances, the Division Bench of the High Court has erred in directing the appellants to appoint the respondent No.1 – original writ petitioner on the post of Constable considering the select list dated 08.09.2007 and allotting five additional marks of NCC B certificate. | 1[ds]7. Thus, as per the pleadings in the earlier writ petition being CWJC No.5431 of 2008, there was no averment in support of his claim that he had annexed his NCC B certificate alongwith the original application. However, when subsequently the present writ petition was filed, the original writ petitioner came out with a contrary stand that he had produced all the necessary documents including the NCC B certificate alongwith his original application. The aforesaid is nothing but an afterthought. Having failed to get any positive direction in the earlier writ petition on the ground that there is no pleading that he had annexed his NCC B certificate alongwith the original application, he is not entitled to any positive direction and the original writ petitioner cannot be permitted to improve his case in the subsequent litigation, when it was not his case in the earlier round of litigation.8. At the cost of repetition, it is to be observed that in the earlier round of litigation, the learned Single Judge specifically observed that there is no pleading in the writ petition that the petitioner had annexed his NCC B certificate alongwith the original application. Once, it is found that the respondent No.1– original writ petitioner did not submit the photocopy of the NCC B certificate alongwith the original application which was the requirement as per the advertisement and the cut-off date as per the advertisement was 22.02.2004 and he produced the same after the physical test on 15.01.2007, the appointing authority rightly held that he shall not be entitled to additional five marks of NCC B certificate. Though in the select list dated 08.09.2007, he was awarded 17 marks, which included five additional marks of NCC B certificate, the appointing authority disagreed with the same on the ground that as photocopy of the NCC B certificate was not produced alongwith his application form, which was the requirement as per the advertisement, he shall not be entitled to five additional marks of NCC B certificate. Therefore, when a decision was taken on the representation made by the respondent No.1 – original writ petitioner which was pursuant to the earlier order passed by the learned Single Judge in writ petition being CWJC No.5431 of 2008, the authority rightly refused to allot/award five additional marks of NCC B certificate.9. As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted alongwith the application form, which are required to be submitted as per the advertisement have to be considered. Therefore, when the respondent No.1 – original writ petitioner did not produce the photocopy of the NCC B certificate alongwith the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC B certificate. In these circumstances, the Division Bench of the High Court has erred in directing the appellants to appoint the respondent No.1 – original writ petitioner on the post of Constable considering the select list dated 08.09.2007 and allotting five additional marks of NCC B certificate. | 1 | 2,870 | 593 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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were published on 26.12.2007. Observing so the learned Single Judge held that in absence of necessary pleadings that the petitioner had annexed his NCC B certificate alongwith his original application, the Court finds it difficult to issue any positive direction with regard to the consideration of his candidature. The order passed by the learned Single Judge reads as under:- Heard learned counsel for the petitioner and the State. The petitioner was an applicant for appointment on the post of Constable under advertisement no. 1 of 2004. Having applied in response to the same, he appeared for physical test on 8.5.2006 when he was given 12 marks. The grievance is that he has been denied the benefit of 5 marks under the advertisement with regard to NCC-B certificate possessed by him as provided for in the advertisement. In this manner, while his marks were total 17 making him eligible for appointment, those with lesser marks have been appointed when his candidate has been considered on the basis of 12 1narks only. There is no pleading in the writ application that the petitioner has annexed his NCC-B certificate in support of his claim along with the original application. It appears from the pleadings that he did submit the same after the physical test on 15.1.2007 before the results were published on 26.12.2007. Strong reliance has been placed on the information furnished to the petitioner under Right to Information Act by Annexure-8 dated 23.6.2008 in support of the plea. In absence of necessary pleadings that the petitioner had annexed his NCC-B certificate along with his original application, this Court finds it difficult to issue any positive direction with regard to consideration of the candidature of the petitioner. If the petitioner had originally annexed his NCC-B certificate along with his application, naturally he is required to be considered on basis of 17 marks as mentioned in Annexurte-8 dated 23.6.2008. But, if the petitioner had not annexed such documents with his original application and submitted the same subsequently after physical test but before the publication of the results, the matter shall remain in the discretion of the Respondents and it is not possible for this Court to pass any positive orders on the aspect of consideration of his candidature. The Court is of such view for the reason that if this Court was to direct any relaxation of any condition, it would amount to violation of Article 14 of the Constitution by a judicial order. The writ application stands disposed in the aforesaid terms for an appropriate decision by the Respondents within a maximum period of six weeks from the date of receipt and/ or production of a copy of this order. 7. Thus, as per the pleadings in the earlier writ petition being CWJC No.5431 of 2008, there was no averment in support of his claim that he had annexed his NCC B certificate alongwith the original application. However, when subsequently the present writ petition was filed, the original writ petitioner came out with a contrary stand that he had produced all the necessary documents including the NCC B certificate alongwith his original application. The aforesaid is nothing but an afterthought. Having failed to get any positive direction in the earlier writ petition on the ground that there is no pleading that he had annexed his NCC B certificate alongwith the original application, he is not entitled to any positive direction and the original writ petitioner cannot be permitted to improve his case in the subsequent litigation, when it was not his case in the earlier round of litigation. 8. At the cost of repetition, it is to be observed that in the earlier round of litigation, the learned Single Judge specifically observed that there is no pleading in the writ petition that the petitioner had annexed his NCC B certificate alongwith the original application. Once, it is found that the respondent No.1– original writ petitioner did not submit the photocopy of the NCC B certificate alongwith the original application which was the requirement as per the advertisement and the cut-off date as per the advertisement was 22.02.2004 and he produced the same after the physical test on 15.01.2007, the appointing authority rightly held that he shall not be entitled to additional five marks of NCC B certificate. Though in the select list dated 08.09.2007, he was awarded 17 marks, which included five additional marks of NCC B certificate, the appointing authority disagreed with the same on the ground that as photocopy of the NCC B certificate was not produced alongwith his application form, which was the requirement as per the advertisement, he shall not be entitled to five additional marks of NCC B certificate. Therefore, when a decision was taken on the representation made by the respondent No.1 – original writ petitioner which was pursuant to the earlier order passed by the learned Single Judge in writ petition being CWJC No.5431 of 2008, the authority rightly refused to allot/award five additional marks of NCC B certificate. 9. As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted alongwith the application form, which are required to be submitted as per the advertisement have to be considered. Therefore, when the respondent No.1 – original writ petitioner did not produce the photocopy of the NCC B certificate alongwith the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC B certificate. In these circumstances, the Division Bench of the High Court has erred in directing the appellants to appoint the respondent No.1 – original writ petitioner on the post of Constable considering the select list dated 08.09.2007 and allotting five additional marks of NCC B certificate.
### Response:
1
### Explanation:
7. Thus, as per the pleadings in the earlier writ petition being CWJC No.5431 of 2008, there was no averment in support of his claim that he had annexed his NCC B certificate alongwith the original application. However, when subsequently the present writ petition was filed, the original writ petitioner came out with a contrary stand that he had produced all the necessary documents including the NCC B certificate alongwith his original application. The aforesaid is nothing but an afterthought. Having failed to get any positive direction in the earlier writ petition on the ground that there is no pleading that he had annexed his NCC B certificate alongwith the original application, he is not entitled to any positive direction and the original writ petitioner cannot be permitted to improve his case in the subsequent litigation, when it was not his case in the earlier round of litigation.8. At the cost of repetition, it is to be observed that in the earlier round of litigation, the learned Single Judge specifically observed that there is no pleading in the writ petition that the petitioner had annexed his NCC B certificate alongwith the original application. Once, it is found that the respondent No.1– original writ petitioner did not submit the photocopy of the NCC B certificate alongwith the original application which was the requirement as per the advertisement and the cut-off date as per the advertisement was 22.02.2004 and he produced the same after the physical test on 15.01.2007, the appointing authority rightly held that he shall not be entitled to additional five marks of NCC B certificate. Though in the select list dated 08.09.2007, he was awarded 17 marks, which included five additional marks of NCC B certificate, the appointing authority disagreed with the same on the ground that as photocopy of the NCC B certificate was not produced alongwith his application form, which was the requirement as per the advertisement, he shall not be entitled to five additional marks of NCC B certificate. Therefore, when a decision was taken on the representation made by the respondent No.1 – original writ petitioner which was pursuant to the earlier order passed by the learned Single Judge in writ petition being CWJC No.5431 of 2008, the authority rightly refused to allot/award five additional marks of NCC B certificate.9. As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted alongwith the application form, which are required to be submitted as per the advertisement have to be considered. Therefore, when the respondent No.1 – original writ petitioner did not produce the photocopy of the NCC B certificate alongwith the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC B certificate. In these circumstances, the Division Bench of the High Court has erred in directing the appellants to appoint the respondent No.1 – original writ petitioner on the post of Constable considering the select list dated 08.09.2007 and allotting five additional marks of NCC B certificate.
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THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX HYDERABAD II Vs. BAKELITE HYLAM LTD | 1. Admit. 2. These appeals arise from a judgment and order of the CESTAT dated 14 July 2016 in Appeal Nos.E/901/2008 and E/906/2008. The adjudicatory authority, on an earlier remand, passed an order-in-original on 12 September 2008, confirming a demand of Rs 1,26,29,491 (after adjusting an amount of Rs 35,52,111) under Rule 9(2) of the Central Excise Rules 1944, together with a penalty of Rs 15,00,000 under Rule 173Q. The following appeals were filed before the CESTAT: (i) Appeal No. E/901/2008 filed by the Revenue; and (ii) Appeal No.E/926/2008 filed by the Assessee. 3. On 3 December 2009, only the appeal of the assessee was listed for hearing. The CESTAT allowed the appeal of the assessee. The CESTAT held that when there was a clear cut finding that the ex-factory price is a genuine price and there being no appeal of the Revenue against the finding, the order of the adjudicatory authority confirming the demand was incorrect and liable to be set aside. 4. In January 2010, the Revenue moved an application for recall of the order of the CESTAT dated 3 December 2009. On 12 June 2012, the CESTAT recalled its order dated 3 December 2009 and listed both the appeals for hearing. 5. By the impugned judgment and order dated 14 July 2016, the CESTAT dismissed the appeal of the Revenue, by relying upon the findings contained in its earlier order dated 3 December 2009 in the assessees appeal bearing No E/926/2008. Inadvertently, the CESTAT has missed the fact that the order dated 3 December 2009 had already been recalled on 12 June 2012. In paragraph 6 of its impugned judgment, the CESTAT has extracted the relevant part of its earlier order dated 3 December 2009. In paragraph 7, the Tribunal observed that, in its earlier order, it had come to the conclusion that the adjudicatory authority having held that the ex-factory price is genuine, the confirmation of the demand was not warranted. 6. The basis on which the CESTAT has taken a decision, namely, the earlier order of the CESTAT dated 3 December 2009 is flawed since the order relied on has been recalled. | 1[ds]6. The basis on which the CESTAT has taken a decision, namely, the earlier order of the CESTAT dated 3 December 2009 is flawed since the order relied on has been recalled. | 1 | 407 | 40 | ### 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:
1. Admit. 2. These appeals arise from a judgment and order of the CESTAT dated 14 July 2016 in Appeal Nos.E/901/2008 and E/906/2008. The adjudicatory authority, on an earlier remand, passed an order-in-original on 12 September 2008, confirming a demand of Rs 1,26,29,491 (after adjusting an amount of Rs 35,52,111) under Rule 9(2) of the Central Excise Rules 1944, together with a penalty of Rs 15,00,000 under Rule 173Q. The following appeals were filed before the CESTAT: (i) Appeal No. E/901/2008 filed by the Revenue; and (ii) Appeal No.E/926/2008 filed by the Assessee. 3. On 3 December 2009, only the appeal of the assessee was listed for hearing. The CESTAT allowed the appeal of the assessee. The CESTAT held that when there was a clear cut finding that the ex-factory price is a genuine price and there being no appeal of the Revenue against the finding, the order of the adjudicatory authority confirming the demand was incorrect and liable to be set aside. 4. In January 2010, the Revenue moved an application for recall of the order of the CESTAT dated 3 December 2009. On 12 June 2012, the CESTAT recalled its order dated 3 December 2009 and listed both the appeals for hearing. 5. By the impugned judgment and order dated 14 July 2016, the CESTAT dismissed the appeal of the Revenue, by relying upon the findings contained in its earlier order dated 3 December 2009 in the assessees appeal bearing No E/926/2008. Inadvertently, the CESTAT has missed the fact that the order dated 3 December 2009 had already been recalled on 12 June 2012. In paragraph 6 of its impugned judgment, the CESTAT has extracted the relevant part of its earlier order dated 3 December 2009. In paragraph 7, the Tribunal observed that, in its earlier order, it had come to the conclusion that the adjudicatory authority having held that the ex-factory price is genuine, the confirmation of the demand was not warranted. 6. The basis on which the CESTAT has taken a decision, namely, the earlier order of the CESTAT dated 3 December 2009 is flawed since the order relied on has been recalled.
### Response:
1
### Explanation:
6. The basis on which the CESTAT has taken a decision, namely, the earlier order of the CESTAT dated 3 December 2009 is flawed since the order relied on has been recalled.
|
Kanta Goel Vs. B.P. Pathak & Ors | later receipts makes much of a difference, but the fact remains tha the tenant in this case had been paying the rent to the 1st respondent. Therefore, the latter fell within the definition of ‘landlord’ for the purpose of the Act. We, are not impressed with the investigation into the law of real property and estoppel between landlord and tenant, Mr. Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premsies. The 1st respondent, together with the other respondents, constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, the functioned, for all practical purposes as the landlord, and was therefore, entitled to institute proceedings qua landlord."7. This Court, in Sri Ram Pasricha, (1976) 4 SCC 184 , clarified that a co-owner is as much an owner of the entire property as any sole owner of the property is : jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property..... It is, therefore, not possible to accept the submission that the plaintiff, who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the defendants. That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner.8. Mr. Nariman urged that the Will had not been proved and that he had not been given an opportunity to establish his challenge of the Will of Shri Dass. In the High Court the other co-heirs were parties and there is nothing on record to show that they objected to the claim of the 1st respondent to the first floor on the strength of the Will from his father. An objection for the sake of an objection which has no realistic foundation, cannot be entertained seriously for the sake of procedural punctiliousness. We do not agree with the contention.9. The last, and yet the lethal objection which had been lost sight of in the High Court, although raised there, loomed large before this Court, in Sri Nariman’s arguments. The admitted fact is that on the same ground of the Government’s order to vacate, the first respondent had evicted a dwelling house on the first floor and is keeping it vacant. He is again using the same order to vacate passed by the Government to evict the appellant’s dwelling house. This is obviously contrary to the intendment of Section 14A and is interdicted by the proviso to Section 14A(1). It is true that when an officer is sought to be evicted by the Government from its premises he has to be rehabilitated in his own house by an accelerated remedial procedure provided by Section 14A read with Section 25B of the Act. But this emergency provision available merely to put the Government servant back into his own residential accommodation cannot be used as a weapon for evicting several tenants if he has many houses let out to various persons. The object of Section 14A is fulfilled once the landlord recovers immediate possession of his premises from one of his tenants. The right is exhausted thereby and is not available for continual applications for eviction against all other tenants holding under him. This is made clear by the proviso which makes plain that the section shall not be construed as conferring a right on a landlord owning two or more dwelling houses to recover possession of more than one dwelling house. Of course it gives him the choice since the proviso states that it shall be lawful for such landlord to indicate the particular dwelling house among a plurality owned by him, possession of which he intends to recover. He can ordinarily recover one dwelling house but no more. In the present case, admittedly he has recovered one dwelling house consisting of a three-room apartment on the first floor by using the precise ground under Section 14A(1). It necessarily follows that he cannot use Section 14A for evicting the tenant-appellant from another dwelling house. On the last ground, therefore, the appeal must be allowed, although in the circumstances we direct the parties to bear their cost throughout.10. Counsel on both sides, on the suggestion by the Court, calculated to produce a salutary relationship between the parties, agreed that the three-room dwelling house which lies vacant (having been evicted under Section 14A) will be given possession of to the appellant in exchange for the appellant making over possession of the 4-room apartment — the premises involved in the present case — together with the appurtenant space. The appellant has agreed to pay a sum of Rs. 250/- per month by way of rent for the adjacent three-room apartment into which he will move, within one month from today and surrender possession of the 4-room apartment simultaneously. In case the parties are able to adjust their differences and the 1st respondent makes over the additional space attached to the 4-room tenement for the use of the appellant, he will pay an extra sum of Rs. 75/- per mensem or other negotiated figure. | 1[ds]In any case, the claim of the first respondent that the building in its entirety had been allotted by the late Shri Dass by his Will to the first respondent and his brother the 3rd respondent and that, subsequently, there had been an oral partition between the two whereunder the first floor was allotted in toto to the 1st respondent making him the sole owner and, therefore, the exclusive landlord, was contested by the appellant-tenant and this plea should have been allowed to be raised by grant of leave under Section 25B by the Controller. The presence of the co-heirs at the High Court level was inconsequential, according to the appellant, and their absence at the trial stage vitiated the order of the Controller.The scheme of the statute is plain and has been earlier explained by this Court with special reference to Sections 14A and 25B. The Government servant who owns his house, lets it out profitably and occupies at lesser rent official quarters has to quit but, for that very purpose to be fulfilled, must be put in quick possession of his premises. The legislative project and purpose turn not on niceties of little verbalism but on the actualities of rugged realism, and so, the construction of Section 14A(1) must be illumined by the goal, though guided by the word. We have, therefore, no hesitation in holding that Section 14A(1) is available as a ground, if the premises are owned by him as inherited from his propositus in whose name the property stood. ‘In hisand ‘let out byread in the spirit of the provision and without violence to the words of the section, clearly convey the idea that the premises must be owned by him directly and the lease must be under him directly, which is the case where he, as heir, steps into hisshoes who owned the building in his own name and let it out himself. He represents the former owner and lessor and squarely falls within Section 14A. The accent onis to pre-empt the common class of Benami evasions, not to attach special sanctity to nominalism. Refusing the rule of ritualism we accept the reality of the ownership and landlordism as thethis case, rent was being paid to the late Dass who had let out to the appellant; on the death of the former, the rent was being paid by the 1st respondent who signed his name and added that it was on behalf of the estate of the deceased Dass. At a later stage the rent was being paid to and the receipts issued by the first respondent in his own name. Not that the little change made in the later receipts makes much of a difference, but the fact remains tha the tenant in this case had been paying the rent to the 1st respondent. Therefore, the latter fell within the definition offor the purpose of the Act. We, are not impressed with the investigation into the law of real property and estoppel between landlord and tenant, Mr. Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premsies. The 1st respondent, together with the other respondents, constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, the functioned, for all practical purposes as the landlord, and was therefore, entitled to institute proceedings quais, therefore, not possible to accept the submission that the plaintiff, who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the defendants. That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner.This is obviously contrary to the intendment of Section 14A and is interdicted by the proviso to Section 14A(1). It is true that when an officer is sought to be evicted by the Government from its premises he has to be rehabilitated in his own house by an accelerated remedial procedure provided by Section 14A read with Section 25B of the Act. But this emergency provision available merely to put the Government servant back into his own residential accommodation cannot be used as a weapon for evicting several tenants if he has many houses let out to various persons. The object of Section 14A is fulfilled once the landlord recovers immediate possession of his premises from one of his tenants. The right is exhausted thereby and is not available for continual applications for eviction against all other tenants holding under him. This is made clear by the proviso which makes plain that the section shall not be construed as conferring a right on a landlord owning two or more dwelling houses to recover possession of more than one dwelling house. Of course it gives him the choice since the proviso states that it shall be lawful for such landlord to indicate the particular dwelling house among a plurality owned by him, possession of which he intends to recover. He can ordinarily recover one dwelling house but no more. In the present case, admittedly he has recovered one dwelling house consisting of a three-room apartment on the first floor by using the precise ground under Section 14A(1). It necessarily follows that he cannot use Section 14A for evicting the tenant-appellant from another dwelling house. On the last ground, therefore, the appeal must be allowed, although in the circumstances we direct the parties to bear their cost throughout.10. Counsel on both sides, on the suggestion by the Court, calculated to produce a salutary relationship between the parties, agreed that the three-room dwelling house which lies vacant (having been evicted under Section 14A) will be given possession of to the appellant in exchange for the appellant making over possession of the 4-room apartment — the premises involved in the present case — together with the appurtenant space. The appellant has agreed to pay a sum of Rs. 250/- per month by way of rent for the adjacent three-room apartment into which he will move, within one month from today and surrender possession of the 4-room apartment simultaneously. In case the parties are able to adjust their differences and the 1st respondent makes over the additional space attached to the 4-room tenement for the use of the appellant, he will pay an extra sum of Rs. 75/- per mensem or other negotiatedthe High Court the otherwere parties and there is nothing on record to show that they objected to the claim of the 1st respondent to the first floor on the strength of the Will from his father. An objection for the sake of an objection which has no realistic foundation, cannot be entertained seriously for the sake of procedural punctiliousness.We do not agree with the contention. | 1 | 2,812 | 1,374 | ### 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:
later receipts makes much of a difference, but the fact remains tha the tenant in this case had been paying the rent to the 1st respondent. Therefore, the latter fell within the definition of ‘landlord’ for the purpose of the Act. We, are not impressed with the investigation into the law of real property and estoppel between landlord and tenant, Mr. Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premsies. The 1st respondent, together with the other respondents, constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, the functioned, for all practical purposes as the landlord, and was therefore, entitled to institute proceedings qua landlord."7. This Court, in Sri Ram Pasricha, (1976) 4 SCC 184 , clarified that a co-owner is as much an owner of the entire property as any sole owner of the property is : jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property..... It is, therefore, not possible to accept the submission that the plaintiff, who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the defendants. That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner.8. Mr. Nariman urged that the Will had not been proved and that he had not been given an opportunity to establish his challenge of the Will of Shri Dass. In the High Court the other co-heirs were parties and there is nothing on record to show that they objected to the claim of the 1st respondent to the first floor on the strength of the Will from his father. An objection for the sake of an objection which has no realistic foundation, cannot be entertained seriously for the sake of procedural punctiliousness. We do not agree with the contention.9. The last, and yet the lethal objection which had been lost sight of in the High Court, although raised there, loomed large before this Court, in Sri Nariman’s arguments. The admitted fact is that on the same ground of the Government’s order to vacate, the first respondent had evicted a dwelling house on the first floor and is keeping it vacant. He is again using the same order to vacate passed by the Government to evict the appellant’s dwelling house. This is obviously contrary to the intendment of Section 14A and is interdicted by the proviso to Section 14A(1). It is true that when an officer is sought to be evicted by the Government from its premises he has to be rehabilitated in his own house by an accelerated remedial procedure provided by Section 14A read with Section 25B of the Act. But this emergency provision available merely to put the Government servant back into his own residential accommodation cannot be used as a weapon for evicting several tenants if he has many houses let out to various persons. The object of Section 14A is fulfilled once the landlord recovers immediate possession of his premises from one of his tenants. The right is exhausted thereby and is not available for continual applications for eviction against all other tenants holding under him. This is made clear by the proviso which makes plain that the section shall not be construed as conferring a right on a landlord owning two or more dwelling houses to recover possession of more than one dwelling house. Of course it gives him the choice since the proviso states that it shall be lawful for such landlord to indicate the particular dwelling house among a plurality owned by him, possession of which he intends to recover. He can ordinarily recover one dwelling house but no more. In the present case, admittedly he has recovered one dwelling house consisting of a three-room apartment on the first floor by using the precise ground under Section 14A(1). It necessarily follows that he cannot use Section 14A for evicting the tenant-appellant from another dwelling house. On the last ground, therefore, the appeal must be allowed, although in the circumstances we direct the parties to bear their cost throughout.10. Counsel on both sides, on the suggestion by the Court, calculated to produce a salutary relationship between the parties, agreed that the three-room dwelling house which lies vacant (having been evicted under Section 14A) will be given possession of to the appellant in exchange for the appellant making over possession of the 4-room apartment — the premises involved in the present case — together with the appurtenant space. The appellant has agreed to pay a sum of Rs. 250/- per month by way of rent for the adjacent three-room apartment into which he will move, within one month from today and surrender possession of the 4-room apartment simultaneously. In case the parties are able to adjust their differences and the 1st respondent makes over the additional space attached to the 4-room tenement for the use of the appellant, he will pay an extra sum of Rs. 75/- per mensem or other negotiated figure.
### Response:
1
### Explanation:
from his propositus in whose name the property stood. ‘In hisand ‘let out byread in the spirit of the provision and without violence to the words of the section, clearly convey the idea that the premises must be owned by him directly and the lease must be under him directly, which is the case where he, as heir, steps into hisshoes who owned the building in his own name and let it out himself. He represents the former owner and lessor and squarely falls within Section 14A. The accent onis to pre-empt the common class of Benami evasions, not to attach special sanctity to nominalism. Refusing the rule of ritualism we accept the reality of the ownership and landlordism as thethis case, rent was being paid to the late Dass who had let out to the appellant; on the death of the former, the rent was being paid by the 1st respondent who signed his name and added that it was on behalf of the estate of the deceased Dass. At a later stage the rent was being paid to and the receipts issued by the first respondent in his own name. Not that the little change made in the later receipts makes much of a difference, but the fact remains tha the tenant in this case had been paying the rent to the 1st respondent. Therefore, the latter fell within the definition offor the purpose of the Act. We, are not impressed with the investigation into the law of real property and estoppel between landlord and tenant, Mr. Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premsies. The 1st respondent, together with the other respondents, constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, the functioned, for all practical purposes as the landlord, and was therefore, entitled to institute proceedings quais, therefore, not possible to accept the submission that the plaintiff, who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the defendants. That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner.This is obviously contrary to the intendment of Section 14A and is interdicted by the proviso to Section 14A(1). It is true that when an officer is sought to be evicted by the Government from its premises he has to be rehabilitated in his own house by an accelerated remedial procedure provided by Section 14A read with Section 25B of the Act. But this emergency provision available merely to put the Government servant back into his own residential accommodation cannot be used as a weapon for evicting several tenants if he has many houses let out to various persons. The object of Section 14A is fulfilled once the landlord recovers immediate possession of his premises from one of his tenants. The right is exhausted thereby and is not available for continual applications for eviction against all other tenants holding under him. This is made clear by the proviso which makes plain that the section shall not be construed as conferring a right on a landlord owning two or more dwelling houses to recover possession of more than one dwelling house. Of course it gives him the choice since the proviso states that it shall be lawful for such landlord to indicate the particular dwelling house among a plurality owned by him, possession of which he intends to recover. He can ordinarily recover one dwelling house but no more. In the present case, admittedly he has recovered one dwelling house consisting of a three-room apartment on the first floor by using the precise ground under Section 14A(1). It necessarily follows that he cannot use Section 14A for evicting the tenant-appellant from another dwelling house. On the last ground, therefore, the appeal must be allowed, although in the circumstances we direct the parties to bear their cost throughout.10. Counsel on both sides, on the suggestion by the Court, calculated to produce a salutary relationship between the parties, agreed that the three-room dwelling house which lies vacant (having been evicted under Section 14A) will be given possession of to the appellant in exchange for the appellant making over possession of the 4-room apartment — the premises involved in the present case — together with the appurtenant space. The appellant has agreed to pay a sum of Rs. 250/- per month by way of rent for the adjacent three-room apartment into which he will move, within one month from today and surrender possession of the 4-room apartment simultaneously. In case the parties are able to adjust their differences and the 1st respondent makes over the additional space attached to the 4-room tenement for the use of the appellant, he will pay an extra sum of Rs. 75/- per mensem or other negotiatedthe High Court the otherwere parties and there is nothing on record to show that they objected to the claim of the 1st respondent to the first floor on the strength of the Will from his father. An objection for the sake of an objection which has no realistic foundation, cannot be entertained seriously for the sake of procedural punctiliousness.We do not agree with the contention.
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LICA (P.) Ltd. (No. 1) Vs. Official Liquidator and Ors | also was given an opportunity to increase his offer feeling aggrieved against this order Shantilal Malik filed an appeal before the Division Bench. The Division Bench by the impugned judgment dated September 15, 1992, set aside the order of the company judge and directed her to confirm the sale to Shantilal Malik at Rs. 37,00,000 as against which the present appeal has been filed. When the appellant offered Rs. 45,00,000 by order dated October 29, 1992, this court directed the appellant to deposit the said sum of Rs. 45,00,000 after taking into account the sum already deposited in the company court within a period of three weeks from that date. Pursuant thereto the appellant deposited the amount. 4. The Division Bench set aside the order on the ground that after acceptance of the offer by the company judge, the sale should have been treated as closed and should not have been proper for the court to consider any other offer under, subsequent date even if such subsequent offer is higher. The earlier offer already accepted by the court could not be rejected upon some higher offer made later on ; if this course is accepted then there will be no finality in any matter and in such event every now and then the offer already accepted may be upset by rejecting in view of some higher offer. . . If an offer is accepted then such offer cannot be later on rejected unless there are some strong grounds, namely, that the price offered is inadequate of that some action of fraud is involved. In the present case before us, none of such elements was there before the trial court calling for rejection. Admittedly, the sale is subject to acceptance by the court and as per condition No. 11 even a confirmed sale is liable to be set aside. 5. In Navalkha and Sons v. Ramunuju Das [1970] 3 SCR 1 , this court held that the court is the custodian of the interests of the company and its creditors and the sanction of the court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests of the company and its creditors as well. Where the acceptance of the offer by the Commissioner is subject to confirmation of the court, the offer does not by mere acceptance get any vested right in the property so that he may take automatic confirmation of this offer. The condition of confirmation by the court operates as safeguard against the property being sold at an inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the court to satisfy itself that having regard to the market value of the property the price offered is reasonable, unless the court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion. In that case, the court upheld the order of the company court reopening the concluded sale and reaction was upheld. In Kayjay INDUSTRIES (P.) Ltd. v. Asnew Drums (P.) Ltd. [1974] 3 SCR 678 , in a court sale under Order 21, Rule 90 when it was set aside, this court held that a court sale is a forced sale and, notwithstanding. The competitive element of a public auction, the best price is not often forthcoming. The judge must make a certain margin for this factor. A valuers report, good as a basis, is not as good as an actual offer and variation within the limits between such an estimate, however careful, and real bids by seasoned businessman before the auctioneer are quite on the cards. The businessman makes uncanny calculations before striking a bargain and that circumstance must enter the judicial verdict before deciding whether a better price could be had by a postponement of the sale. In Radhy Shyam v. Shyam Behari Singh, [1971] 1 SCR 783 , this court considering the scope of Order 21, Rule 90 of the Civil Procedure Code, 1908, held that in order to set aside an auction sale what has to be established is that there was not only inadequacy of the price but that inadequacy was caused by reason of the material irregularity or fraud. 6. The purpose of an open auction is to get the most remunerative price and it is the duty of the court to keep openness of the auction so that the intending bidders would be free to participate and offer higher value. If that path is cut down or closed the possibility of fraud or to secure inadequate price or underbidding would loom large. The court would, therefore, have to exercise its discretion wisely and with circumspection and keeping in view the facts and circumstances in each case. One of the terms of the offer in this case is that even confirmation of the sale is liable to be set aside by the High Court as per Clause 11 of the conditions of offer. The sale conducted was subject to confirmation. Therefore, mere acceptance of the offer of Mr. Shantilal Malik does not constitute any finality of the auction nor would it he automatically confirmed. The appellant offered a higher price even now at Rs. 45,00,000. Keeping in view the interest of the company and the creditors and the workmen to whom the sale proceeds would he applied, the learned company judge was right in exercising her discretion to reopen the auction and directing Mr. Shantilal Malik as well to make a higher offer than what was offered by the appellant. In every case it is not necessary that there should be fraud in conducting the sale, though on its proof the sale gets vitiated and it is one of the grounds to set aside the auction sale. Therefore, the discretion exercised by the learned single judge cannot be said to be unwarranted. | 1[ds]The earlier offer already accepted by the court could not be rejected upon some higher offer made later on ; if this course is accepted then there will be no finality in any matter and in such event every now and then the offer already accepted may be upset by rejecting in view of some higher offer. . . If an offer is accepted then such offer cannot be later on rejected unless there are some strong grounds, namely, that the price offered is inadequate of that some action of fraud is involved. In the present case before us, none of such elements was there before the trial court calling for rejection. Admittedly, the sale is subject to acceptance by the court and as per condition No. 11 even a confirmed sale is liable to be set aside.5. In Navalkha and Sons v. Ramunuju Das [1970] 3 SCR 1 , this court held that the court is the custodian of the interests of the company and its creditors and the sanction of the court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests of the company and its creditors as well. Where the acceptance of the offer by the Commissioner is subject to confirmation of the court, the offer does not by mere acceptance get any vested right in the property so that he may take automatic confirmation of this offer. The condition of confirmation by the court operates as safeguard against the property being sold at an inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the court to satisfy itself that having regard to the market value of the property the price offered is reasonable, unless the court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion. In that case, the court upheld the order of the company court reopening the concluded sale and reaction was upheld. In Kayjay INDUSTRIES (P.) Ltd. v. Asnew Drums (P.) Ltd. [1974] 3 SCR 678 , in a court sale under Order 21, Rule 90 when it was set aside, this court held that a court sale is a forced sale and, notwithstanding. The competitive element of a public auction, the best price is not often forthcoming. The judge must make a certain margin for this factor. A valuers report, good as a basis, is not as good as an actual offer and variation within the limits between such an estimate, however careful, and real bids by seasoned businessman before the auctioneer are quite on the cards. The businessman makes uncanny calculations before striking a bargain and that circumstance must enter the judicial verdict before deciding whether a better price could be had by a postponement of the sale. In Radhy Shyam v. Shyam Behari Singh, [1971] 1 SCR 783 , this court considering the scope of Order 21, Rule 90 of the Civil Procedure Code, 1908, held that in order to set aside an auction sale what has to be established is that there was not only inadequacy of the price but that inadequacy was caused by reason of the material irregularity or fraud.6. The purpose of an open auction is to get the most remunerative price and it is the duty of the court to keep openness of the auction so that the intending bidders would be free to participate and offer higher value. If that path is cut down or closed the possibility of fraud or to secure inadequate price or underbidding would loom large. The court would, therefore, have to exercise its discretion wisely and with circumspection and keeping in view the facts and circumstances in each case. One of the terms of the offer in this case is that even confirmation of the sale is liable to be set aside by the High Court as per Clause 11 of the conditions of offer. The sale conducted was subject to confirmation. Therefore, mere acceptance of the offer of Mr. Shantilal Malik does not constitute any finality of the auction nor would it he automatically confirmed. The appellant offered a higher price even now at Rs. 45,00,000. Keeping in view the interest of the company and the creditors and the workmen to whom the sale proceeds would he applied, the learned company judge was right in exercising her discretion to reopen the auction and directing Mr. Shantilal Malik as well to make a higher offer than what was offered by the appellant. In every case it is not necessary that there should be fraud in conducting the sale, though on its proof the sale gets vitiated and it is one of the grounds to set aside the auction sale. Therefore, the discretion exercised by the learned single judge cannot be said to be unwarranted.13. The terms and conditions set out by the learned company judge, were published before publishing for sale. Conditions Nos. 9 and 11 read thus :9. The sale would be subject to such modification/alteration of terms and conditions of sale as the honble court deem fit and proper and the decision of the High Court shall be final.11. The High Court may set aside the sale in favour of the purchaser/purchasers even after the sale is confirmed and the purchase consideration is paid on such terms and conditions as the court may deem fit and proper for the interest and benefit of creditors, contributors and all concerned and/or for public interest.14. When the matter was carried in appeal, the Division Bench passed the order on May 5, 1993, to the following effect.If any conveyance is executed, that will also abide by the result of the appeal.. It is stated that the appellant got the sale deed executed and registered on May 25, 1995. The Division Bench upset the order of the learned single judge with the above direction on May 26, 1995. Therefore, the execution and registration of the sale deed are subject to the result in the appeal. | 1 | 1,303 | 1,112 | ### 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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also was given an opportunity to increase his offer feeling aggrieved against this order Shantilal Malik filed an appeal before the Division Bench. The Division Bench by the impugned judgment dated September 15, 1992, set aside the order of the company judge and directed her to confirm the sale to Shantilal Malik at Rs. 37,00,000 as against which the present appeal has been filed. When the appellant offered Rs. 45,00,000 by order dated October 29, 1992, this court directed the appellant to deposit the said sum of Rs. 45,00,000 after taking into account the sum already deposited in the company court within a period of three weeks from that date. Pursuant thereto the appellant deposited the amount. 4. The Division Bench set aside the order on the ground that after acceptance of the offer by the company judge, the sale should have been treated as closed and should not have been proper for the court to consider any other offer under, subsequent date even if such subsequent offer is higher. The earlier offer already accepted by the court could not be rejected upon some higher offer made later on ; if this course is accepted then there will be no finality in any matter and in such event every now and then the offer already accepted may be upset by rejecting in view of some higher offer. . . If an offer is accepted then such offer cannot be later on rejected unless there are some strong grounds, namely, that the price offered is inadequate of that some action of fraud is involved. In the present case before us, none of such elements was there before the trial court calling for rejection. Admittedly, the sale is subject to acceptance by the court and as per condition No. 11 even a confirmed sale is liable to be set aside. 5. In Navalkha and Sons v. Ramunuju Das [1970] 3 SCR 1 , this court held that the court is the custodian of the interests of the company and its creditors and the sanction of the court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests of the company and its creditors as well. Where the acceptance of the offer by the Commissioner is subject to confirmation of the court, the offer does not by mere acceptance get any vested right in the property so that he may take automatic confirmation of this offer. The condition of confirmation by the court operates as safeguard against the property being sold at an inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the court to satisfy itself that having regard to the market value of the property the price offered is reasonable, unless the court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion. In that case, the court upheld the order of the company court reopening the concluded sale and reaction was upheld. In Kayjay INDUSTRIES (P.) Ltd. v. Asnew Drums (P.) Ltd. [1974] 3 SCR 678 , in a court sale under Order 21, Rule 90 when it was set aside, this court held that a court sale is a forced sale and, notwithstanding. The competitive element of a public auction, the best price is not often forthcoming. The judge must make a certain margin for this factor. A valuers report, good as a basis, is not as good as an actual offer and variation within the limits between such an estimate, however careful, and real bids by seasoned businessman before the auctioneer are quite on the cards. The businessman makes uncanny calculations before striking a bargain and that circumstance must enter the judicial verdict before deciding whether a better price could be had by a postponement of the sale. In Radhy Shyam v. Shyam Behari Singh, [1971] 1 SCR 783 , this court considering the scope of Order 21, Rule 90 of the Civil Procedure Code, 1908, held that in order to set aside an auction sale what has to be established is that there was not only inadequacy of the price but that inadequacy was caused by reason of the material irregularity or fraud. 6. The purpose of an open auction is to get the most remunerative price and it is the duty of the court to keep openness of the auction so that the intending bidders would be free to participate and offer higher value. If that path is cut down or closed the possibility of fraud or to secure inadequate price or underbidding would loom large. The court would, therefore, have to exercise its discretion wisely and with circumspection and keeping in view the facts and circumstances in each case. One of the terms of the offer in this case is that even confirmation of the sale is liable to be set aside by the High Court as per Clause 11 of the conditions of offer. The sale conducted was subject to confirmation. Therefore, mere acceptance of the offer of Mr. Shantilal Malik does not constitute any finality of the auction nor would it he automatically confirmed. The appellant offered a higher price even now at Rs. 45,00,000. Keeping in view the interest of the company and the creditors and the workmen to whom the sale proceeds would he applied, the learned company judge was right in exercising her discretion to reopen the auction and directing Mr. Shantilal Malik as well to make a higher offer than what was offered by the appellant. In every case it is not necessary that there should be fraud in conducting the sale, though on its proof the sale gets vitiated and it is one of the grounds to set aside the auction sale. Therefore, the discretion exercised by the learned single judge cannot be said to be unwarranted.
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no finality in any matter and in such event every now and then the offer already accepted may be upset by rejecting in view of some higher offer. . . If an offer is accepted then such offer cannot be later on rejected unless there are some strong grounds, namely, that the price offered is inadequate of that some action of fraud is involved. In the present case before us, none of such elements was there before the trial court calling for rejection. Admittedly, the sale is subject to acceptance by the court and as per condition No. 11 even a confirmed sale is liable to be set aside.5. In Navalkha and Sons v. Ramunuju Das [1970] 3 SCR 1 , this court held that the court is the custodian of the interests of the company and its creditors and the sanction of the court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests of the company and its creditors as well. Where the acceptance of the offer by the Commissioner is subject to confirmation of the court, the offer does not by mere acceptance get any vested right in the property so that he may take automatic confirmation of this offer. The condition of confirmation by the court operates as safeguard against the property being sold at an inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the court to satisfy itself that having regard to the market value of the property the price offered is reasonable, unless the court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion. In that case, the court upheld the order of the company court reopening the concluded sale and reaction was upheld. In Kayjay INDUSTRIES (P.) Ltd. v. Asnew Drums (P.) Ltd. [1974] 3 SCR 678 , in a court sale under Order 21, Rule 90 when it was set aside, this court held that a court sale is a forced sale and, notwithstanding. The competitive element of a public auction, the best price is not often forthcoming. The judge must make a certain margin for this factor. A valuers report, good as a basis, is not as good as an actual offer and variation within the limits between such an estimate, however careful, and real bids by seasoned businessman before the auctioneer are quite on the cards. The businessman makes uncanny calculations before striking a bargain and that circumstance must enter the judicial verdict before deciding whether a better price could be had by a postponement of the sale. In Radhy Shyam v. Shyam Behari Singh, [1971] 1 SCR 783 , this court considering the scope of Order 21, Rule 90 of the Civil Procedure Code, 1908, held that in order to set aside an auction sale what has to be established is that there was not only inadequacy of the price but that inadequacy was caused by reason of the material irregularity or fraud.6. The purpose of an open auction is to get the most remunerative price and it is the duty of the court to keep openness of the auction so that the intending bidders would be free to participate and offer higher value. If that path is cut down or closed the possibility of fraud or to secure inadequate price or underbidding would loom large. The court would, therefore, have to exercise its discretion wisely and with circumspection and keeping in view the facts and circumstances in each case. One of the terms of the offer in this case is that even confirmation of the sale is liable to be set aside by the High Court as per Clause 11 of the conditions of offer. The sale conducted was subject to confirmation. Therefore, mere acceptance of the offer of Mr. Shantilal Malik does not constitute any finality of the auction nor would it he automatically confirmed. The appellant offered a higher price even now at Rs. 45,00,000. Keeping in view the interest of the company and the creditors and the workmen to whom the sale proceeds would he applied, the learned company judge was right in exercising her discretion to reopen the auction and directing Mr. Shantilal Malik as well to make a higher offer than what was offered by the appellant. In every case it is not necessary that there should be fraud in conducting the sale, though on its proof the sale gets vitiated and it is one of the grounds to set aside the auction sale. Therefore, the discretion exercised by the learned single judge cannot be said to be unwarranted.13. The terms and conditions set out by the learned company judge, were published before publishing for sale. Conditions Nos. 9 and 11 read thus :9. The sale would be subject to such modification/alteration of terms and conditions of sale as the honble court deem fit and proper and the decision of the High Court shall be final.11. The High Court may set aside the sale in favour of the purchaser/purchasers even after the sale is confirmed and the purchase consideration is paid on such terms and conditions as the court may deem fit and proper for the interest and benefit of creditors, contributors and all concerned and/or for public interest.14. When the matter was carried in appeal, the Division Bench passed the order on May 5, 1993, to the following effect.If any conveyance is executed, that will also abide by the result of the appeal.. It is stated that the appellant got the sale deed executed and registered on May 25, 1995. The Division Bench upset the order of the learned single judge with the above direction on May 26, 1995. Therefore, the execution and registration of the sale deed are subject to the result in the appeal.
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R. Mannakatti & Another Vs. M. Subramanian & Another | B.P. Singh, J. 1. Special leave granted. 2. We have heard Counsel for the parties.3. In this appeal by special leave the appellants are the parents of the deceased, who died in an accident which took place on 4th September, 1998. A claim petition was filed under Section 166(1) of the Motor Vehicles Act, 1988 before the Claims Tribunal in which a sum of Rs. 5 lakh was claimed by way of compensation. The Tribunal by its order of 30th March, 2001, held that the accident occurred due to negligence of driver of the vehicle owned by the first respondent and, therefore, the second respondent, namely, the Insurance Company was liable to pay the compensation. On the basis that the monthly income of the deceased was Rs. 2,500, after deducting 1/3rd of the annual income towards expenses of the deceased and applying the multiple of 17, the Tribunal awarded Rs. 3,40,000 by way of compensation and a sum of Rs. 12,000 towards burial expenses, etc. The Tribunal also awarded interest @ 9%. An appeal was preferred before the High Court by the owner as well as the insurer, namely M/s. United India Insurance Company Ltd. The said appeal was entertained by the High Court and was ultimately partly allowed by its judgment and order of 19th February, 2003. The High Court reduced the compensation awarded to the appellants considering the fact that the multiplier applied by the Tribunal was not justified. Instead of 17 it applied the multiple of 11. For reducing the multiplier, the High Court considered the age of the mother which was found to be 53.4. In this appeal preferred by the appellant-claimants, it is submitted that the appeal preferred by the Insurance Company before the High Court was not maintainable and for this, reliance is placed on the provisions of Section 170 of the Motor Vehicles Act, 1988. In a decision of this Court in National Insurance Co. Ltd. v. Nicolletta Rohtagi, V (2002) SLT 363=III (2002) ACC 292 (SC)=(2002) 7 SCC 456 , this Court held : (S.C.C. p. 470, paras 25-26) “25. We have earlier noticed that motor vehicle accident claim is a tortuous claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The Legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicles are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an inquiry the Claims Tribunal is satisfied that (a) there is collusion between the person making a claim and the person against whom the claim has been made, or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 are satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Section 173 of the 1988 Act, the same would go contrary to the scheme and object of the Act.” 5. In view of the aforesaid principles laid down by this Court, in the instant case since the owner of the vehicle contested the claim of the appellants, the insurer could not prefer an appeal, even if the owner of the vehicle joined him as a party-appellant. Counsel for the respondent Insurance Company submitted that in this case his grievance is to the application of the multiple of 17 which was apparently incorrect. Since we have held that the appeal itself was not maintainable at the instance of the insurer, this cannot be examined by us. | 1[ds]In a decision of this Court in National Insurance Co. Ltd. v. Nicolletta Rohtagi, V (2002) SLT 363=III (2002) ACC 292 (SC)=(2002) 7 SCC 456 , this Court held : (S.C.C. p. 470, parasWe have earlier noticed that motor vehicle accident claim is a tortuous claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The Legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicles are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an inquiry the Claims Tribunal is satisfied that (a) there is collusion between the person making a claim and the person against whom the claim has been made, or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 are satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Section 173 of the 1988 Act, the same would go contrary to the scheme and object of the Act.In view of the aforesaid principles laid down by this Court, in the instant case since the owner of the vehicle contested the claim of the appellants, the insurer could not prefer an appeal, even if the owner of the vehicle joined him as a party-appellant. Counsel for the respondent Insurance Company submitted that in this case his grievance is to the application of the multiple of 17 which was apparently incorrect. Since we have held that the appeal itself was not maintainable at the instance of the insurer, this cannot be examined by us. | 1 | 953 | 590 | ### 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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B.P. Singh, J. 1. Special leave granted. 2. We have heard Counsel for the parties.3. In this appeal by special leave the appellants are the parents of the deceased, who died in an accident which took place on 4th September, 1998. A claim petition was filed under Section 166(1) of the Motor Vehicles Act, 1988 before the Claims Tribunal in which a sum of Rs. 5 lakh was claimed by way of compensation. The Tribunal by its order of 30th March, 2001, held that the accident occurred due to negligence of driver of the vehicle owned by the first respondent and, therefore, the second respondent, namely, the Insurance Company was liable to pay the compensation. On the basis that the monthly income of the deceased was Rs. 2,500, after deducting 1/3rd of the annual income towards expenses of the deceased and applying the multiple of 17, the Tribunal awarded Rs. 3,40,000 by way of compensation and a sum of Rs. 12,000 towards burial expenses, etc. The Tribunal also awarded interest @ 9%. An appeal was preferred before the High Court by the owner as well as the insurer, namely M/s. United India Insurance Company Ltd. The said appeal was entertained by the High Court and was ultimately partly allowed by its judgment and order of 19th February, 2003. The High Court reduced the compensation awarded to the appellants considering the fact that the multiplier applied by the Tribunal was not justified. Instead of 17 it applied the multiple of 11. For reducing the multiplier, the High Court considered the age of the mother which was found to be 53.4. In this appeal preferred by the appellant-claimants, it is submitted that the appeal preferred by the Insurance Company before the High Court was not maintainable and for this, reliance is placed on the provisions of Section 170 of the Motor Vehicles Act, 1988. In a decision of this Court in National Insurance Co. Ltd. v. Nicolletta Rohtagi, V (2002) SLT 363=III (2002) ACC 292 (SC)=(2002) 7 SCC 456 , this Court held : (S.C.C. p. 470, paras 25-26) “25. We have earlier noticed that motor vehicle accident claim is a tortuous claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The Legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicles are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an inquiry the Claims Tribunal is satisfied that (a) there is collusion between the person making a claim and the person against whom the claim has been made, or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 are satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Section 173 of the 1988 Act, the same would go contrary to the scheme and object of the Act.” 5. In view of the aforesaid principles laid down by this Court, in the instant case since the owner of the vehicle contested the claim of the appellants, the insurer could not prefer an appeal, even if the owner of the vehicle joined him as a party-appellant. Counsel for the respondent Insurance Company submitted that in this case his grievance is to the application of the multiple of 17 which was apparently incorrect. Since we have held that the appeal itself was not maintainable at the instance of the insurer, this cannot be examined by us.
### Response:
1
### Explanation:
In a decision of this Court in National Insurance Co. Ltd. v. Nicolletta Rohtagi, V (2002) SLT 363=III (2002) ACC 292 (SC)=(2002) 7 SCC 456 , this Court held : (S.C.C. p. 470, parasWe have earlier noticed that motor vehicle accident claim is a tortuous claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The Legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicles are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an inquiry the Claims Tribunal is satisfied that (a) there is collusion between the person making a claim and the person against whom the claim has been made, or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 are satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Section 173 of the 1988 Act, the same would go contrary to the scheme and object of the Act.In view of the aforesaid principles laid down by this Court, in the instant case since the owner of the vehicle contested the claim of the appellants, the insurer could not prefer an appeal, even if the owner of the vehicle joined him as a party-appellant. Counsel for the respondent Insurance Company submitted that in this case his grievance is to the application of the multiple of 17 which was apparently incorrect. Since we have held that the appeal itself was not maintainable at the instance of the insurer, this cannot be examined by us.
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Gal Offshore Services Limited) (Now The Great Eastern Shipping ) Company Limited) Vs. The Commissioner of Income Tax ) City-V, Aayakar Bhavan, Maharshi) Karve Road, Mumbai | Section 33AC only to companies which already own vessels would work against new entrants into the field by denying them a much needed incentive to enter the field by purchasing their first vessel and would actually go against the object of encouraging the nascent shipping industry in India.10. The learned Counsel for the revenue submitted before us that the assessee would be entitled to deduction under section 33AC only if the assessee has, in the previous year relevant to the assessment year, earned income from the shipping business. He submitted that in the instant case, the assessee had only purchased ships in the previous year relevant to the assessment year 1994-95. He, therefore, submitted that the assessee was not entitled to deduction as claimed. No case law was cited before us on behalf of the revenue nor any submissions were made as regards the case law cited in support of the assessees case.11. We have considered the arguments advanced by Learned Advocates for the assessee as well as the revenue. We have also considered the case law cited by the Advocate for the assessee. Section 33AC as applicable to the Assessment Year 1994-95 and amended section 33AC which came into effect from 1st April, 1996 are set out in paragraph 4 above. It is clear from section 33AC(1) as applicable to the Assessment Year 1994-95 that the only requirements prescribed are that the assessee must be a Government Company or a company formed and registered in India with the main object of carrying on of the business of operation of ships. If this condition is satisfied, the assessee would be entitled to deduction of an amount not exceeding the total income, as is debited to the profit and loss of the previous year in respect of which the deduction is to be allowed and credited to the reserve account to be utilised in the manner laid down in sub-section (2). There is no such requirement that the assessee in order to be eligible for deduction has to actually operate ships or that the amount in respect of which deduction is to be allowed and credited to the reserved account, had to be the income earned from shipping business. In the instant case, the assessee was a company formed and registered in India and one of its main objects was to carry on the business of operations of ships. The company had entered into agreement for purchase of ships in the relevant assessment year i.e. 1994-95 and actually operated them in the assessment year 1995-96. We agree with the submissions made on behalf of the assessee that the principles of statutory provisions laid down by the Honble Supreme Court in the case of Orissa State Warehousing Corporation (supra) and in the case of Padmasundara Rao (decd) and others (supra) squarely applies to the instant case. We, therefore, do not agree with the argument of the revenue and upheld by the Tribunal that section 33AC contemplates actual carrying on of business of operation of shipping in the year of claim.12. As regards the arguments/contentions of the revenue/Tribunal that the amendment brought by Finance Act, 1995 with effect from 1st April, 1996 is clarificatory and not retrospective, we are of the view that since clause 24.4 of the Circular No.717 dated 14th August, 1995 expressly states that the amendment will take effect from 1st April, 1996 and will accordingly apply in relation to the assessment year 1996-97 and subsequent years, establishes beyond doubt that the said amendment cannot be termed as clarificatory and/or retrospective. In this regard we are also bound by the decision of the Honble Supreme Court in the case of Sedco Forest International Drill Inc and others Vs. Commissioner of Income Tax and another (supra), cited before us by the Learned Advocate for the assessee.13. It is also the submission of the revenue which was accepted by the Tribunal that section 33AC of the said Act as applicable to the assessment year 1994-95 allowed deductions only to the company which was actually engaged in the business of shipping or that amount so deducted, had to be from the income earned from the shipping business. In our view this submission is completely erroneous. Clause 24.2 of the Departmental Circular no.717 dated 14th August, 1995 explains why section 33AC was amended with effect from 1st April, 1996 and made applicable in relation to the assessment year 1996-97 and subsequent years. The explanation given is that it was noticed that the shipping companies had diversified into trading, real estate business etc. and were claiming deductions under this section even in respect of the income from the activities other than shipping and, there was no justification for allowing 100% deduction with reference to income from activities other than operation of shipping. This shows that there was a lacunae in section 33AC(1) of the said Act because of which the assessee was in a position to claim deduction even in respect of its income from the activities other than shipping and this lacunae was corrected only by introducing an amendment to section 33AC with effect from 1st April, 1996. By the said amendment the deduction was restricted to only 50% of profits and that too derived from the business of operation of ships. It is, therefore, established that despite being conscious of the fact that prior to the amendment the assessees were claiming deduction in respect of their income from activities other than shipping, the framers of the amendment did not think it fit to make it applicable retrospectively but brought the said amendment into effect only from 1st April, 1996. The assessees were, therefore, allowed to claim the deductions even in respect of the income from the activities other than shipping prior to 1st April, 1996. In view thereof, in the instant case also, it cannot be insisted that the deduction claimed by the assessee ought to be in respect of their income from the activities from shipping and not from any other business. | 1[ds]It is clear from section 33AC(1) as applicable to the Assessment Yearthat the only requirements prescribed are that the assessee must be a Government Company or a company formed and registered in India with the main object of carrying on of the business of operation ofthe instant case, the assessee was a company formed and registered in India and one of its main objects was to carry on the business of operations of ships. The company had entered into agreement for purchase of ships in the relevant assessment year i.e.and actually operated them in the assessment yearWe agree with the submissions made on behalf of the assessee that the principles of statutory provisions laid down by the Honble Supreme Court in the case of Orissa State Warehousing Corporation (supra) and in the case of Padmasundara Rao (decd) and others (supra) squarely applies to the instant case. We, therefore, do not agree with the argument of the revenue and upheld by the Tribunal that section 33AC contemplates actual carrying on of business of operation of shipping in the year of claim.12. As regards the arguments/contentions of the revenue/Tribunal that the amendment brought by Finance Act, 1995 with effect from 1st April, 1996 is clarificatory and not retrospective, we are of the view that since clause 24.4 of the Circular No.717 dated 14th August, 1995 expressly states that the amendment will take effect from 1st April, 1996 and will accordingly apply in relation to the assessment yearand subsequent years, establishes beyond doubt that the said amendment cannot be termed as clarificatory and/or retrospective. In this regard we are also bound by the decision of the Honble Supreme Court in the case of Sedco Forest International Drill Inc and others Vs. Commissioner of Income Tax and another (supra), cited before us by the Learned Advocate for theexplanation given is that it was noticed that the shipping companies had diversified into trading, real estate business etc. and were claiming deductions under this section even in respect of the income from the activities other than shipping and, there was no justification for allowing 100% deduction with reference to income from activities other than operation of shipping. This shows that there was a lacunae in section 33AC(1) of the said Act because of which the assessee was in a position to claim deduction even in respect of its income from the activities other than shipping and this lacunae was corrected only by introducing an amendment to section 33AC with effect from 1st April, 1996. By the said amendment the deduction was restricted to only 50% of profits and that too derived from the business of operation of ships. It is, therefore, established that despite being conscious of the fact that prior to the amendment the assessees were claiming deduction in respect of their income from activities other than shipping, the framers of the amendment did not think it fit to make it applicable retrospectively but brought the said amendment into effect only from 1st April, 1996. The assessees were, therefore, allowed to claim the deductions even in respect of the income from the activities other than shipping prior to 1st April, 1996. In view thereof, in the instant case also, it cannot be insisted that the deduction claimed by the assessee ought to be in respect of their income from the activities from shipping and not from any other business. | 1 | 3,463 | 619 | ### 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:
Section 33AC only to companies which already own vessels would work against new entrants into the field by denying them a much needed incentive to enter the field by purchasing their first vessel and would actually go against the object of encouraging the nascent shipping industry in India.10. The learned Counsel for the revenue submitted before us that the assessee would be entitled to deduction under section 33AC only if the assessee has, in the previous year relevant to the assessment year, earned income from the shipping business. He submitted that in the instant case, the assessee had only purchased ships in the previous year relevant to the assessment year 1994-95. He, therefore, submitted that the assessee was not entitled to deduction as claimed. No case law was cited before us on behalf of the revenue nor any submissions were made as regards the case law cited in support of the assessees case.11. We have considered the arguments advanced by Learned Advocates for the assessee as well as the revenue. We have also considered the case law cited by the Advocate for the assessee. Section 33AC as applicable to the Assessment Year 1994-95 and amended section 33AC which came into effect from 1st April, 1996 are set out in paragraph 4 above. It is clear from section 33AC(1) as applicable to the Assessment Year 1994-95 that the only requirements prescribed are that the assessee must be a Government Company or a company formed and registered in India with the main object of carrying on of the business of operation of ships. If this condition is satisfied, the assessee would be entitled to deduction of an amount not exceeding the total income, as is debited to the profit and loss of the previous year in respect of which the deduction is to be allowed and credited to the reserve account to be utilised in the manner laid down in sub-section (2). There is no such requirement that the assessee in order to be eligible for deduction has to actually operate ships or that the amount in respect of which deduction is to be allowed and credited to the reserved account, had to be the income earned from shipping business. In the instant case, the assessee was a company formed and registered in India and one of its main objects was to carry on the business of operations of ships. The company had entered into agreement for purchase of ships in the relevant assessment year i.e. 1994-95 and actually operated them in the assessment year 1995-96. We agree with the submissions made on behalf of the assessee that the principles of statutory provisions laid down by the Honble Supreme Court in the case of Orissa State Warehousing Corporation (supra) and in the case of Padmasundara Rao (decd) and others (supra) squarely applies to the instant case. We, therefore, do not agree with the argument of the revenue and upheld by the Tribunal that section 33AC contemplates actual carrying on of business of operation of shipping in the year of claim.12. As regards the arguments/contentions of the revenue/Tribunal that the amendment brought by Finance Act, 1995 with effect from 1st April, 1996 is clarificatory and not retrospective, we are of the view that since clause 24.4 of the Circular No.717 dated 14th August, 1995 expressly states that the amendment will take effect from 1st April, 1996 and will accordingly apply in relation to the assessment year 1996-97 and subsequent years, establishes beyond doubt that the said amendment cannot be termed as clarificatory and/or retrospective. In this regard we are also bound by the decision of the Honble Supreme Court in the case of Sedco Forest International Drill Inc and others Vs. Commissioner of Income Tax and another (supra), cited before us by the Learned Advocate for the assessee.13. It is also the submission of the revenue which was accepted by the Tribunal that section 33AC of the said Act as applicable to the assessment year 1994-95 allowed deductions only to the company which was actually engaged in the business of shipping or that amount so deducted, had to be from the income earned from the shipping business. In our view this submission is completely erroneous. Clause 24.2 of the Departmental Circular no.717 dated 14th August, 1995 explains why section 33AC was amended with effect from 1st April, 1996 and made applicable in relation to the assessment year 1996-97 and subsequent years. The explanation given is that it was noticed that the shipping companies had diversified into trading, real estate business etc. and were claiming deductions under this section even in respect of the income from the activities other than shipping and, there was no justification for allowing 100% deduction with reference to income from activities other than operation of shipping. This shows that there was a lacunae in section 33AC(1) of the said Act because of which the assessee was in a position to claim deduction even in respect of its income from the activities other than shipping and this lacunae was corrected only by introducing an amendment to section 33AC with effect from 1st April, 1996. By the said amendment the deduction was restricted to only 50% of profits and that too derived from the business of operation of ships. It is, therefore, established that despite being conscious of the fact that prior to the amendment the assessees were claiming deduction in respect of their income from activities other than shipping, the framers of the amendment did not think it fit to make it applicable retrospectively but brought the said amendment into effect only from 1st April, 1996. The assessees were, therefore, allowed to claim the deductions even in respect of the income from the activities other than shipping prior to 1st April, 1996. In view thereof, in the instant case also, it cannot be insisted that the deduction claimed by the assessee ought to be in respect of their income from the activities from shipping and not from any other business.
### Response:
1
### Explanation:
It is clear from section 33AC(1) as applicable to the Assessment Yearthat the only requirements prescribed are that the assessee must be a Government Company or a company formed and registered in India with the main object of carrying on of the business of operation ofthe instant case, the assessee was a company formed and registered in India and one of its main objects was to carry on the business of operations of ships. The company had entered into agreement for purchase of ships in the relevant assessment year i.e.and actually operated them in the assessment yearWe agree with the submissions made on behalf of the assessee that the principles of statutory provisions laid down by the Honble Supreme Court in the case of Orissa State Warehousing Corporation (supra) and in the case of Padmasundara Rao (decd) and others (supra) squarely applies to the instant case. We, therefore, do not agree with the argument of the revenue and upheld by the Tribunal that section 33AC contemplates actual carrying on of business of operation of shipping in the year of claim.12. As regards the arguments/contentions of the revenue/Tribunal that the amendment brought by Finance Act, 1995 with effect from 1st April, 1996 is clarificatory and not retrospective, we are of the view that since clause 24.4 of the Circular No.717 dated 14th August, 1995 expressly states that the amendment will take effect from 1st April, 1996 and will accordingly apply in relation to the assessment yearand subsequent years, establishes beyond doubt that the said amendment cannot be termed as clarificatory and/or retrospective. In this regard we are also bound by the decision of the Honble Supreme Court in the case of Sedco Forest International Drill Inc and others Vs. Commissioner of Income Tax and another (supra), cited before us by the Learned Advocate for theexplanation given is that it was noticed that the shipping companies had diversified into trading, real estate business etc. and were claiming deductions under this section even in respect of the income from the activities other than shipping and, there was no justification for allowing 100% deduction with reference to income from activities other than operation of shipping. This shows that there was a lacunae in section 33AC(1) of the said Act because of which the assessee was in a position to claim deduction even in respect of its income from the activities other than shipping and this lacunae was corrected only by introducing an amendment to section 33AC with effect from 1st April, 1996. By the said amendment the deduction was restricted to only 50% of profits and that too derived from the business of operation of ships. It is, therefore, established that despite being conscious of the fact that prior to the amendment the assessees were claiming deduction in respect of their income from activities other than shipping, the framers of the amendment did not think it fit to make it applicable retrospectively but brought the said amendment into effect only from 1st April, 1996. The assessees were, therefore, allowed to claim the deductions even in respect of the income from the activities other than shipping prior to 1st April, 1996. In view thereof, in the instant case also, it cannot be insisted that the deduction claimed by the assessee ought to be in respect of their income from the activities from shipping and not from any other business.
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Central Bank Of India Vs. M/S. Maruti Acetylene Co. Pvt. Ltd | decision in the appeals preferred by the petitioner-Company and that will not stand in the way of the respondent-Bank to make one-time settlement with the petitioner-Company, taking into account the adjustment of Rs. 25 lakhs as made pursuant to the Debt Recovery Appellate Tribunals order." 8. When the matter went back to the Appellate Tribunal, the appeal preferred by the respondent was dismissed opining: "On a careful consideration of the entire factual aspects of the matter, in the light of the above principles of law laid in the decisions referred to above, this Tribunal has no other option except to conclude that since the OTS offer made by the Appellate had not been accepted by the Respondent-Bank, it is no longer necessary to call either the Branch Manager of the Bank as a witness for the cross-examination. In any view of the matter, I am unable to find any irregularity or illegality in the impugned orders so as to interfere with the same and it follows that the Appeals have to be dismissed by confirming the orders passed by the DRT." 9. Respondent preferred a civil revision application before the High Court once again. The High Court passed an interim order on or about 30th April, 2008, wherein referring to an earlier order dated 16th April, 2008 it directed as under: "From the earlier order it will be evident that this Court, with a view to put an end to the dispute, wanted the bank to reach one time settlement for Rs. 1 crore, inclusive of Rs. 25 lakhs already deposited by the petitioner pursuant to the Courts order. The bank was allowed time to inform the Court in this matter vide order dated 16th April, 2008 and it was observed that the rest of the amount of Rs. 75 lakhs may be ordered to be paid by the Court in favour of the bank. Learned counsel appearing on behalf of the bank submitted that for one or other reason the Board of Directors of the bank could not deliberate on the issue and will take a decision.in the circumstances, while we grant further time to the respondent-Bank, allow the petitioner to deposit the rest of the amount of Rs. 75 lakhs by 30th May, 2008 with the bank with further direction to the bank to accept the same and keep it in an interest bearing no-lien account subject to the decision of this case. It is also made clear that if the bank do not accept the offer of the one time settlement, then this Court may direct the Bank to refund the entire amount, i.e. the amount of (Rs. 25 lakhs and Rs. 75 lakhs) paid by the petitioner in view of courts order along with the accrued interest and, therefore, may remit the matter back to the Tribunal/Appellate Tribunal to decide the case on merits." 10. It is now accepted at the Bar that the respondent did not agree to the aforementioned proposal of the High Court that the One Time Settlement should be confined to Rs.1 crore. When the matter came up before the High Court again on 13.6.2008, by reason of the impugned judgment the appellant-Bank was directed to refund the entire amount of Rs.1 crore with interest at the same rate to which the respondent was liable to pay i.e. the contractual rate of interest, in favour of the respondent within 7 days. The appellant is, thus, before us. 11. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the appellants would raise two contentions in support of these appeals. Firstly, that the sum of Rs. 25 lakhs having been adjusted against the amount of loan payable by the respondent, no direction could have been issued for refund in relation thereto. Secondly, it was contended that having regard to the fact that the amount of Rs. 75 lakhs was deposited on no-lien account which carries a low rate of interest, the direction by the High Court to refund the said sum with contractual rate of interest must be held to be illegal. 12. Mr. Gurukrishna Kumar, learned counsel appearing on behalf of the respondent, on the other hand, contended that the impugned judgment has been passed in continuation of the High Courts order dated 30th April, 2008 and in view of the fact that the correctness of the said order has not been questioned, the appellant should not be permitted to raise the aforementioned contentions before us. 13. It is accepted at the Bar that the matter is likely to be taken up by the High Court on 21.7.2008. Indisputably, when the High Court enters into the merit of the revision application, it shall take into consideration all aspects involved therein, including the offer of the respondent vis-a-vis the orders passed by the Debt Recovery Tribunal and the Appellate Tribunal. 14. Be that as it may, having regard to the fact that the Appellate Tribunal in its order directed adjustment of the aforementioned amount of Rs. 25 lakhs, which in view of the dismissal of the civil revision application has attained finality, in our opinion, at this interlocutory stage the High Court was not correct in issuing a direction in that behalf. 15. So far as the rest of the amount of Rs. 75 lakhs is concerned, it stands accepted that the amount was deposited in a no-lien account. 16. The High Court, therefore, should have directed refund of the said amount with interest only accruing thereupon having regard to the fact that the same was deposited in a no-lien account. The High Court, therefore, in our opinion, was not correct in directing that the interest payable on the sum of Rs. 75 lakhs would be the contractual rate. 17. We, therefore, set aside only that part of the impugned order by which the Bank was directed to refund the entire amount with the contractual rate of interest. The High Court while hearing the matter shall consider the same on its own merit.18. | 1[ds]It is accepted at the Bar that the matter is likely to be taken up by the High Court on 21.7.2008. Indisputably, when the High Court enters into the merit of the revision application, it shall take into consideration all aspects involved therein, including the offer of the respondent vis-a-vis the orders passed by the Debt Recovery Tribunal and the Appellatethat as it may, having regard to the fact that the Appellate Tribunal in its order directed adjustment of the aforementioned amount of Rs. 25 lakhs, which in view of the dismissal of the civil revision application has attained finality, in our opinion, at this interlocutory stage the High Court was not correct in issuing a direction in thatfar as the rest of the amount of Rs. 75 lakhs is concerned, it stands accepted that the amount was deposited in a no-lienHigh Court, therefore, should have directed refund of the said amount with interest only accruing thereupon having regard to the fact that the same was deposited in a no-lien account. The High Court, therefore, in our opinion, was not correct in directing that the interest payable on the sum of Rs. 75 lakhs would be the contractualtherefore, set aside only that part of the impugned order by which the Bank was directed to refund the entire amount with the contractual rate of interest. The High Court while hearing the matter shall consider the same on its own merit. | 1 | 1,618 | 264 | ### Instruction:
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decision in the appeals preferred by the petitioner-Company and that will not stand in the way of the respondent-Bank to make one-time settlement with the petitioner-Company, taking into account the adjustment of Rs. 25 lakhs as made pursuant to the Debt Recovery Appellate Tribunals order." 8. When the matter went back to the Appellate Tribunal, the appeal preferred by the respondent was dismissed opining: "On a careful consideration of the entire factual aspects of the matter, in the light of the above principles of law laid in the decisions referred to above, this Tribunal has no other option except to conclude that since the OTS offer made by the Appellate had not been accepted by the Respondent-Bank, it is no longer necessary to call either the Branch Manager of the Bank as a witness for the cross-examination. In any view of the matter, I am unable to find any irregularity or illegality in the impugned orders so as to interfere with the same and it follows that the Appeals have to be dismissed by confirming the orders passed by the DRT." 9. Respondent preferred a civil revision application before the High Court once again. The High Court passed an interim order on or about 30th April, 2008, wherein referring to an earlier order dated 16th April, 2008 it directed as under: "From the earlier order it will be evident that this Court, with a view to put an end to the dispute, wanted the bank to reach one time settlement for Rs. 1 crore, inclusive of Rs. 25 lakhs already deposited by the petitioner pursuant to the Courts order. The bank was allowed time to inform the Court in this matter vide order dated 16th April, 2008 and it was observed that the rest of the amount of Rs. 75 lakhs may be ordered to be paid by the Court in favour of the bank. Learned counsel appearing on behalf of the bank submitted that for one or other reason the Board of Directors of the bank could not deliberate on the issue and will take a decision.in the circumstances, while we grant further time to the respondent-Bank, allow the petitioner to deposit the rest of the amount of Rs. 75 lakhs by 30th May, 2008 with the bank with further direction to the bank to accept the same and keep it in an interest bearing no-lien account subject to the decision of this case. It is also made clear that if the bank do not accept the offer of the one time settlement, then this Court may direct the Bank to refund the entire amount, i.e. the amount of (Rs. 25 lakhs and Rs. 75 lakhs) paid by the petitioner in view of courts order along with the accrued interest and, therefore, may remit the matter back to the Tribunal/Appellate Tribunal to decide the case on merits." 10. It is now accepted at the Bar that the respondent did not agree to the aforementioned proposal of the High Court that the One Time Settlement should be confined to Rs.1 crore. When the matter came up before the High Court again on 13.6.2008, by reason of the impugned judgment the appellant-Bank was directed to refund the entire amount of Rs.1 crore with interest at the same rate to which the respondent was liable to pay i.e. the contractual rate of interest, in favour of the respondent within 7 days. The appellant is, thus, before us. 11. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the appellants would raise two contentions in support of these appeals. Firstly, that the sum of Rs. 25 lakhs having been adjusted against the amount of loan payable by the respondent, no direction could have been issued for refund in relation thereto. Secondly, it was contended that having regard to the fact that the amount of Rs. 75 lakhs was deposited on no-lien account which carries a low rate of interest, the direction by the High Court to refund the said sum with contractual rate of interest must be held to be illegal. 12. Mr. Gurukrishna Kumar, learned counsel appearing on behalf of the respondent, on the other hand, contended that the impugned judgment has been passed in continuation of the High Courts order dated 30th April, 2008 and in view of the fact that the correctness of the said order has not been questioned, the appellant should not be permitted to raise the aforementioned contentions before us. 13. It is accepted at the Bar that the matter is likely to be taken up by the High Court on 21.7.2008. Indisputably, when the High Court enters into the merit of the revision application, it shall take into consideration all aspects involved therein, including the offer of the respondent vis-a-vis the orders passed by the Debt Recovery Tribunal and the Appellate Tribunal. 14. Be that as it may, having regard to the fact that the Appellate Tribunal in its order directed adjustment of the aforementioned amount of Rs. 25 lakhs, which in view of the dismissal of the civil revision application has attained finality, in our opinion, at this interlocutory stage the High Court was not correct in issuing a direction in that behalf. 15. So far as the rest of the amount of Rs. 75 lakhs is concerned, it stands accepted that the amount was deposited in a no-lien account. 16. The High Court, therefore, should have directed refund of the said amount with interest only accruing thereupon having regard to the fact that the same was deposited in a no-lien account. The High Court, therefore, in our opinion, was not correct in directing that the interest payable on the sum of Rs. 75 lakhs would be the contractual rate. 17. We, therefore, set aside only that part of the impugned order by which the Bank was directed to refund the entire amount with the contractual rate of interest. The High Court while hearing the matter shall consider the same on its own merit.18.
### Response:
1
### Explanation:
It is accepted at the Bar that the matter is likely to be taken up by the High Court on 21.7.2008. Indisputably, when the High Court enters into the merit of the revision application, it shall take into consideration all aspects involved therein, including the offer of the respondent vis-a-vis the orders passed by the Debt Recovery Tribunal and the Appellatethat as it may, having regard to the fact that the Appellate Tribunal in its order directed adjustment of the aforementioned amount of Rs. 25 lakhs, which in view of the dismissal of the civil revision application has attained finality, in our opinion, at this interlocutory stage the High Court was not correct in issuing a direction in thatfar as the rest of the amount of Rs. 75 lakhs is concerned, it stands accepted that the amount was deposited in a no-lienHigh Court, therefore, should have directed refund of the said amount with interest only accruing thereupon having regard to the fact that the same was deposited in a no-lien account. The High Court, therefore, in our opinion, was not correct in directing that the interest payable on the sum of Rs. 75 lakhs would be the contractualtherefore, set aside only that part of the impugned order by which the Bank was directed to refund the entire amount with the contractual rate of interest. The High Court while hearing the matter shall consider the same on its own merit.
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The Additional Income-Tax Officer,Salem Vs. E. Alfred | a special notice under S. 22 or S. 34 his legal representative shall, on the service of the special notices, comply with those notices, and the Income-tax Officer may proceed to assess the total income of the deceased person as if the legal representative were the assessee. Sub-section (3) provides that where a person dies after he has been required to furnish a return but without having furnished such return, or where he has furnished the return but the Income-tax Officer has reason to believe it to be incorrect, the Income tax Officer may make the assessment of the total income of such deceased person and determine the tax after serving such notices as may be required under S. 22 or S. 23 upon the legal representative of the deceased person to produce the accounts, documents or other evidence,6. In the present case, the matter fell to be governed by the second sub-section, because Ebenezer died before the end of his year of account. The service of the notice upon the respondent and his assessment, as if he were the assessee, were made under the second sub-section. By reason of this assessment the respondent became liable under the first sub-section to pay not of the estate of Ebenezer the tax assessed, to the extent to which Ebenezers estate was capable of meeting the charge but he himself was deemed to be the assessee.7. No doubt, the fiction made the respondent an assessee for the purpose of assessing the total income of Ebenezer. But the question is whether the fiction came to an end after the assessment, so that he remained a mere debtor thereafter to the Department. The answer to this question would determine the further application of the other sections of the Act. When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact, it is not. The original assessee being dead before the notice, either general or-special, to him, he could not be treated as an assessee, and the process of the Act is, by the fiction, made available against a different person like a legal-representative who is fictionally deemed to be an assessee for purposes of assessment. The word "assessment" bears different meanings, and in one sense, it comprehends the entire process of computation and levy of the tax. It is in this sense that the legal representative becomes an assessee by the fiction, and it is this fiction, which has to be fully worked out, without allowing the mind to boggle", as was said in Commr. of Income-tax, Delhi v. .S. Teja Singh, 1959 Supp (1) SCR 394 : (AIR 1959 SC 352 ) applying the dictum of Lord Asquith in East End Dwellings Co.,Ltd. v. Finsbury Borough Council, 1952 AC 109 at p. 132.If we turn to the definition of "assessee", it says that an assessee means a person, by whom income-tax is payable. A legal representative who, by fiction, is deemed to be an assessee, therefore, comes within this definition, because he is a person by whom income-tax is payable, though out of the assets left by a deceased person. The assessment of the legal representative is then made under S. 23 of the Act, and he has the right to appeal under S. 30, which he would not have, if he ceased to be an assessee after the determination of the tax.We are not concerned in this case with the position of the legal representative under the third sub-section of S. 24B, and are not required to consider what his position would be, if he made a default in the payment of the tax. The fiction is enacted at least for the purpose of sub-sec (2), and it is to that sub-section that we are confined in this case. Nor can the fiction in that sub-section be limited by provisions of law for a totally different situation.8. Under S. 45, if a notice of demand is issued under S. 29 on an assessee and has not been complied with, the, assessee is deemed to be in default, and under s. 46 (1), if the assessee is in default, a penalty can be imposed. All these stages the respondent went through in this case.He was himself an assessee qua the assets and liability to tax, of Ebenezer; he was, therefore, an assessee in default and liable to the imposition of penalty for this default. The question is whether S. 29, which makes a distinction between an assessee and "other person", makes any difference.9. The High Court as well as the learned counsel for the respondent (who pressed upon us the reasons of the High Court) referred to the words of S. 29 where in addition to an "assessee" liable to pay the tax occur the words "other person" liable, to pay such tax, and observed" that the respondent, would fall to be governed by the words . "other person" liable to pay such tax and not by the words "the assessee liable to pay such tax. The High Court reasoned, therefore, that the words "an assessee" in Ss. 45 and 46 in their application are limited to an assessee, who is assessed on his own behalf and not "other person", who is not an assessee. This distinction, it observed, must be borne in mind in interpreting the word "assessee" used in Ss. 45 and , and so construing, limited the word assessee" in those two sections to an assessee proper. The words "other person" cannot apply to a legal representative, if he is an "assessed" by fiction, and the fiction has to be worked out to is logical conclusion. If he fails within the word "assessee", as has been shown above, he does not fall within the words "other person", and it is not necessary to find in this case what persons are there meant to be included. In our opinion, the penalty could be imposed on the respondent as an assessee. | 1[ds]6. In the present case, the matter fell to be governed by the second sub-section, because Ebenezer died before the end of his year of account. The service of the notice upon the respondent and his assessment, as if he were the assessee, were made under the second sub-section. By reason of this assessment the respondent became liable under the first sub-section to pay not of the estate of Ebenezer the tax assessed, to the extent to which Ebenezers estate was capable of meeting the charge but he himself was deemed to be the assessee.7. No doubt, the fiction made the respondent an assessee for the purpose of assessing the total income ofanswer to this question would determine the further application of the other sections of the Act. When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact, it is not. The original assessee being dead before the notice, either general or-special, to him, he could not be treated as an assessee, and the process of the Act is, by the fiction, made available against a different person like a legal-representative who is fictionally deemed to be an assessee for purposes ofare not concerned in this case with the position of the legal representative under the third sub-section of S. 24B, and are not required to consider what his position would be, if he made a default in the payment of the tax. The fiction is enacted at least for the purpose of sub-sec (2), and it is to that sub-section that we are confined in this case. Nor can the fiction in that sub-section be limited by provisions of law for a totally different situation.8. Under S. 45, if a notice of demand is issued under S. 29 on an assessee and has not been complied with, the, assessee is deemed to be in default, and under s. 46 (1), if the assessee is in default, a penalty can be imposed. All these stages the respondent went through in this case.He was himself an assessee qua the assets and liability to tax, of Ebenezer; he was, therefore, an assessee in default and liable to the imposition of penalty for this default.The High Court as well as the learned counsel for the respondent (who pressed upon us the reasons of the High Court) referred to the words of S. 29 where in addition to an "assessee" liable to pay the tax occur the words "other person" liable, to pay such tax, and observed" that the respondent, would fall to be governed by the words . "other person" liable to pay such tax and not by the words "the assessee liable to pay such tax. The High Court reasoned, therefore, that the words "an assessee" in Ss. 45 and 46 in their application are limited to an assessee, who is assessed on his own behalf and not "other person", who is not an assessee. This distinction, it observed, must be borne in mind in interpreting the word "assessee" used in Ss. 45 and , and so construing, limited the word assessee" in those two sections to an assessee proper. The words "other person" cannot apply to a legal representative, if he is an "assessed" by fiction, and the fiction has to be worked out to is logical conclusion. If he fails within the word "assessee", as has been shown above, he does not fall within the words "other person", and it is not necessary to find in this case what persons are there meant to be included. In our opinion, the penalty could be imposed on the respondent as an assessee. | 1 | 2,449 | 710 | ### 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:
a special notice under S. 22 or S. 34 his legal representative shall, on the service of the special notices, comply with those notices, and the Income-tax Officer may proceed to assess the total income of the deceased person as if the legal representative were the assessee. Sub-section (3) provides that where a person dies after he has been required to furnish a return but without having furnished such return, or where he has furnished the return but the Income-tax Officer has reason to believe it to be incorrect, the Income tax Officer may make the assessment of the total income of such deceased person and determine the tax after serving such notices as may be required under S. 22 or S. 23 upon the legal representative of the deceased person to produce the accounts, documents or other evidence,6. In the present case, the matter fell to be governed by the second sub-section, because Ebenezer died before the end of his year of account. The service of the notice upon the respondent and his assessment, as if he were the assessee, were made under the second sub-section. By reason of this assessment the respondent became liable under the first sub-section to pay not of the estate of Ebenezer the tax assessed, to the extent to which Ebenezers estate was capable of meeting the charge but he himself was deemed to be the assessee.7. No doubt, the fiction made the respondent an assessee for the purpose of assessing the total income of Ebenezer. But the question is whether the fiction came to an end after the assessment, so that he remained a mere debtor thereafter to the Department. The answer to this question would determine the further application of the other sections of the Act. When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact, it is not. The original assessee being dead before the notice, either general or-special, to him, he could not be treated as an assessee, and the process of the Act is, by the fiction, made available against a different person like a legal-representative who is fictionally deemed to be an assessee for purposes of assessment. The word "assessment" bears different meanings, and in one sense, it comprehends the entire process of computation and levy of the tax. It is in this sense that the legal representative becomes an assessee by the fiction, and it is this fiction, which has to be fully worked out, without allowing the mind to boggle", as was said in Commr. of Income-tax, Delhi v. .S. Teja Singh, 1959 Supp (1) SCR 394 : (AIR 1959 SC 352 ) applying the dictum of Lord Asquith in East End Dwellings Co.,Ltd. v. Finsbury Borough Council, 1952 AC 109 at p. 132.If we turn to the definition of "assessee", it says that an assessee means a person, by whom income-tax is payable. A legal representative who, by fiction, is deemed to be an assessee, therefore, comes within this definition, because he is a person by whom income-tax is payable, though out of the assets left by a deceased person. The assessment of the legal representative is then made under S. 23 of the Act, and he has the right to appeal under S. 30, which he would not have, if he ceased to be an assessee after the determination of the tax.We are not concerned in this case with the position of the legal representative under the third sub-section of S. 24B, and are not required to consider what his position would be, if he made a default in the payment of the tax. The fiction is enacted at least for the purpose of sub-sec (2), and it is to that sub-section that we are confined in this case. Nor can the fiction in that sub-section be limited by provisions of law for a totally different situation.8. Under S. 45, if a notice of demand is issued under S. 29 on an assessee and has not been complied with, the, assessee is deemed to be in default, and under s. 46 (1), if the assessee is in default, a penalty can be imposed. All these stages the respondent went through in this case.He was himself an assessee qua the assets and liability to tax, of Ebenezer; he was, therefore, an assessee in default and liable to the imposition of penalty for this default. The question is whether S. 29, which makes a distinction between an assessee and "other person", makes any difference.9. The High Court as well as the learned counsel for the respondent (who pressed upon us the reasons of the High Court) referred to the words of S. 29 where in addition to an "assessee" liable to pay the tax occur the words "other person" liable, to pay such tax, and observed" that the respondent, would fall to be governed by the words . "other person" liable to pay such tax and not by the words "the assessee liable to pay such tax. The High Court reasoned, therefore, that the words "an assessee" in Ss. 45 and 46 in their application are limited to an assessee, who is assessed on his own behalf and not "other person", who is not an assessee. This distinction, it observed, must be borne in mind in interpreting the word "assessee" used in Ss. 45 and , and so construing, limited the word assessee" in those two sections to an assessee proper. The words "other person" cannot apply to a legal representative, if he is an "assessed" by fiction, and the fiction has to be worked out to is logical conclusion. If he fails within the word "assessee", as has been shown above, he does not fall within the words "other person", and it is not necessary to find in this case what persons are there meant to be included. In our opinion, the penalty could be imposed on the respondent as an assessee.
### Response:
1
### Explanation:
6. In the present case, the matter fell to be governed by the second sub-section, because Ebenezer died before the end of his year of account. The service of the notice upon the respondent and his assessment, as if he were the assessee, were made under the second sub-section. By reason of this assessment the respondent became liable under the first sub-section to pay not of the estate of Ebenezer the tax assessed, to the extent to which Ebenezers estate was capable of meeting the charge but he himself was deemed to be the assessee.7. No doubt, the fiction made the respondent an assessee for the purpose of assessing the total income ofanswer to this question would determine the further application of the other sections of the Act. When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact, it is not. The original assessee being dead before the notice, either general or-special, to him, he could not be treated as an assessee, and the process of the Act is, by the fiction, made available against a different person like a legal-representative who is fictionally deemed to be an assessee for purposes ofare not concerned in this case with the position of the legal representative under the third sub-section of S. 24B, and are not required to consider what his position would be, if he made a default in the payment of the tax. The fiction is enacted at least for the purpose of sub-sec (2), and it is to that sub-section that we are confined in this case. Nor can the fiction in that sub-section be limited by provisions of law for a totally different situation.8. Under S. 45, if a notice of demand is issued under S. 29 on an assessee and has not been complied with, the, assessee is deemed to be in default, and under s. 46 (1), if the assessee is in default, a penalty can be imposed. All these stages the respondent went through in this case.He was himself an assessee qua the assets and liability to tax, of Ebenezer; he was, therefore, an assessee in default and liable to the imposition of penalty for this default.The High Court as well as the learned counsel for the respondent (who pressed upon us the reasons of the High Court) referred to the words of S. 29 where in addition to an "assessee" liable to pay the tax occur the words "other person" liable, to pay such tax, and observed" that the respondent, would fall to be governed by the words . "other person" liable to pay such tax and not by the words "the assessee liable to pay such tax. The High Court reasoned, therefore, that the words "an assessee" in Ss. 45 and 46 in their application are limited to an assessee, who is assessed on his own behalf and not "other person", who is not an assessee. This distinction, it observed, must be borne in mind in interpreting the word "assessee" used in Ss. 45 and , and so construing, limited the word assessee" in those two sections to an assessee proper. The words "other person" cannot apply to a legal representative, if he is an "assessed" by fiction, and the fiction has to be worked out to is logical conclusion. If he fails within the word "assessee", as has been shown above, he does not fall within the words "other person", and it is not necessary to find in this case what persons are there meant to be included. In our opinion, the penalty could be imposed on the respondent as an assessee.
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Dunlop India Ltd Vs. Their Workmen | Union, which was not a party to any such agreement with the appellant. If the age of retirement at 58 had been fixed in the Standing Orders of the Company after following the procedure indicated in the relevant statute, as the appellant originally did in 1955, then the position may be different. On the other hand, what the appellant did was to enter into an agreement with the Dunlop Rubber Factory Labour Union, which represented only one section of the staff employees. When that is so, such an agreement will bind only such of the staff employees who were members of the Dunlop Rubber Factory Labour Union, which was a party to the agreement. The concerned workman who was not a member of the said union was justified in contending that he was not bound by the agreements of 1961 and 1966 the Tribunal was also justified in upholding the contention.25. Mr. Pai then urged that the agreements of 1961 and 1966 conferred very many benefits on the employees and those benefits have also been availed of by the concerned workman. Therefore, he urged that the workman was bound by the provisions contained in those agreements relating to the age of retirement. The mere fact that an employee gets the benefit of higher wages fixed under the agreement, in our opinion, cannot be considered to operate as a bar to his disputing the right of the management to retire him at the age of 58 years. It is only when the clause relating to the age of retirement is sought to be enforced that he can raise a controversy. The other provisions regarding gratuity and other retirement benefits will accrue to the workman only on his retirement and therefore it cannot be said that the concerned workman had taken the benefit of those provisions before he was due to retire. Therefore, we are not impressed with this contention of Mr. Pai. The second contention is also to be rejected.26. The last contention of Mr. Pai need not detain us very long. When the order of the management directing the workman to retire on his attaining the age of 58 years was being challenged as illegal, the Tribunal had necessarily to consider what is the proper retirement age for the concerned workman. It is only when a finding is given that the concerned workman is entitled to continue beyond 58 years that the Tribunal can hold the order of the Company directing his retirement at 58 years as illegal. So the Tribunal was justified in going to that aspect. The Tribunal has relied on the decisions of this Court in (1960) 1 SCR 348 = (AIR 1959 SC 1279 ) and (1964) 2 Lab LJ 146 (SC), for holding that the concerned workman who had joined service at a time when there were no rules, regulations, agreements or Standing Orders regarding the age of superannuation, was entitled to continue in service till he attained the age of 60 years. These decisions too prima facie support the view of the Tribunal that the concerned workman, in the present case, is entitled to continue in service till he attained the age of 60 years. We have already referred to the fact that the said decisions have been explained by this Court in (1970) 1 SCR 808 = (AIR 1970 SC 512 ).27. However, the finding of the Tribunal that the concerned workman was entitled to continue in service till he attained the age of 60 years can be supported on other grounds. We have already referred to the decision of this Court in (1960) 2 SCR 51 = (AIR 1960 SC 207 ) relating to the age of retirement being 60 years in respect of the appellants staff employed in Bombay region. Though that decision related to the employees of the appellant in Bombay region, it should be noted that this Court rejected the contention of the Company that it being an all-India concern, it should have uniform conditions of service throughout the country for its employees. It was further emphasised by this Court that industrial adjudication in India being based on industry-cum-region basis, the Industrial Tribunals have jurisdiction to make necessary changes in a uniform scheme so that it might accord with the prevailing conditions in the region where the employees were working, as the changes found necessary by the Tribunal were to ensure fair conditions of service.28. We have also referred to the inter-office letter dated December 6, 1962, which further shows that even according to the appellant the concerned workman is entitled to continue in service till the age of 60 years.29. Mr. Pai has referred us to certain decisions to show that the trend in West Bengal is to fix the age of retirement as 58 years for clerical and subordinate staff, Mr. Sen Gupta, also referred us to certain decision in other regions to show that the trend is to fix the age of retirement for staff members at 60 years. But it is not necessary for us to refer to those decisions cited either by Mr. Pai or Mr. Sen Gupta. We will only refer to the decisions of this Court in Messrs. British Paints (India) Ltd. v. Its Workmen, (1966) 2 SCR 523 = (AIR 1966 SC 732 ), which relates to West Bengal region wherein this Court fixed the age of retirement both for factory workmen and the staff members in the Company concerned at 60 years. No doubt, it is pointed out in the said decision that the uniform age was fixed for the factory workmen also in that case because of the particular nature of work the factory workmen had to do, but one thing is clear, the trend in West Bengal region is to fix the age of retirement at 60 years for the clerical and subordinate staff. From this point of view the direction of the Tribunal that the appellant was entitled to continue in service till 60 years is justified. | 0[ds]27. However, the finding of the Tribunal that the concerned workman was entitled to continue in service till he attained the age of 60 years can be supported on other grounds. We have already referred to the decision of this Court in (1960) 2 SCR 51 = (AIR 1960 SC 207 ) relating to the age of retirement being 60 years in respect of the appellants staff employed in Bombay region. Though that decision related to the employees of the appellant in Bombay region, it should be noted that this Court rejected the contention of the Company that it being an all-India concern, it should have uniform conditions of service throughout the country for its employees. It was further emphasised by this Court that industrial adjudication in India being based on industry-cum-region basis, the Industrial Tribunals have jurisdiction to make necessary changes in a uniform scheme so that it might accord with the prevailing conditions in the region where the employees were working, as the changes found necessary by the Tribunal were to ensure fair conditions of service.28. We have also referred to the inter-office letter dated December 6, 1962, which further shows that even according to the appellant the concerned workman is entitled to continue in service till the age of 60 years.29. Mr. Pai has referred us to certain decisions to show that the trend in West Bengal is to fix the age of retirement as 58 years for clerical and subordinate staff, Mr. Sen Gupta, also referred us to certain decision in other regions to show that the trend is to fix the age of retirement for staff members at 60 years. But it is not necessary for us to refer to those decisions cited either by Mr. Pai or Mr. Sen Gupta. We will only refer to the decisions of this Court in Messrs. British Paints (India) Ltd. v. Its Workmen, (1966) 2 SCR 523 = (AIR 1966 SC 732 ), which relates to West Bengal region wherein this Court fixed the age of retirement both for factory workmen and the staff members in the Company concerned at 60 years. No doubt, it is pointed out in the said decision that the uniform age was fixed for the factory workmen also in that case because of the particular nature of work the factory workmen had to do, but one thing is clear, the trend in West Bengal region is to fix the age of retirement at 60 years for the clerical and subordinate staff. From this point of view the direction of the Tribunal that the appellant was entitled to continue in service till 60 years is justified. | 0 | 5,520 | 479 | ### 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:
Union, which was not a party to any such agreement with the appellant. If the age of retirement at 58 had been fixed in the Standing Orders of the Company after following the procedure indicated in the relevant statute, as the appellant originally did in 1955, then the position may be different. On the other hand, what the appellant did was to enter into an agreement with the Dunlop Rubber Factory Labour Union, which represented only one section of the staff employees. When that is so, such an agreement will bind only such of the staff employees who were members of the Dunlop Rubber Factory Labour Union, which was a party to the agreement. The concerned workman who was not a member of the said union was justified in contending that he was not bound by the agreements of 1961 and 1966 the Tribunal was also justified in upholding the contention.25. Mr. Pai then urged that the agreements of 1961 and 1966 conferred very many benefits on the employees and those benefits have also been availed of by the concerned workman. Therefore, he urged that the workman was bound by the provisions contained in those agreements relating to the age of retirement. The mere fact that an employee gets the benefit of higher wages fixed under the agreement, in our opinion, cannot be considered to operate as a bar to his disputing the right of the management to retire him at the age of 58 years. It is only when the clause relating to the age of retirement is sought to be enforced that he can raise a controversy. The other provisions regarding gratuity and other retirement benefits will accrue to the workman only on his retirement and therefore it cannot be said that the concerned workman had taken the benefit of those provisions before he was due to retire. Therefore, we are not impressed with this contention of Mr. Pai. The second contention is also to be rejected.26. The last contention of Mr. Pai need not detain us very long. When the order of the management directing the workman to retire on his attaining the age of 58 years was being challenged as illegal, the Tribunal had necessarily to consider what is the proper retirement age for the concerned workman. It is only when a finding is given that the concerned workman is entitled to continue beyond 58 years that the Tribunal can hold the order of the Company directing his retirement at 58 years as illegal. So the Tribunal was justified in going to that aspect. The Tribunal has relied on the decisions of this Court in (1960) 1 SCR 348 = (AIR 1959 SC 1279 ) and (1964) 2 Lab LJ 146 (SC), for holding that the concerned workman who had joined service at a time when there were no rules, regulations, agreements or Standing Orders regarding the age of superannuation, was entitled to continue in service till he attained the age of 60 years. These decisions too prima facie support the view of the Tribunal that the concerned workman, in the present case, is entitled to continue in service till he attained the age of 60 years. We have already referred to the fact that the said decisions have been explained by this Court in (1970) 1 SCR 808 = (AIR 1970 SC 512 ).27. However, the finding of the Tribunal that the concerned workman was entitled to continue in service till he attained the age of 60 years can be supported on other grounds. We have already referred to the decision of this Court in (1960) 2 SCR 51 = (AIR 1960 SC 207 ) relating to the age of retirement being 60 years in respect of the appellants staff employed in Bombay region. Though that decision related to the employees of the appellant in Bombay region, it should be noted that this Court rejected the contention of the Company that it being an all-India concern, it should have uniform conditions of service throughout the country for its employees. It was further emphasised by this Court that industrial adjudication in India being based on industry-cum-region basis, the Industrial Tribunals have jurisdiction to make necessary changes in a uniform scheme so that it might accord with the prevailing conditions in the region where the employees were working, as the changes found necessary by the Tribunal were to ensure fair conditions of service.28. We have also referred to the inter-office letter dated December 6, 1962, which further shows that even according to the appellant the concerned workman is entitled to continue in service till the age of 60 years.29. Mr. Pai has referred us to certain decisions to show that the trend in West Bengal is to fix the age of retirement as 58 years for clerical and subordinate staff, Mr. Sen Gupta, also referred us to certain decision in other regions to show that the trend is to fix the age of retirement for staff members at 60 years. But it is not necessary for us to refer to those decisions cited either by Mr. Pai or Mr. Sen Gupta. We will only refer to the decisions of this Court in Messrs. British Paints (India) Ltd. v. Its Workmen, (1966) 2 SCR 523 = (AIR 1966 SC 732 ), which relates to West Bengal region wherein this Court fixed the age of retirement both for factory workmen and the staff members in the Company concerned at 60 years. No doubt, it is pointed out in the said decision that the uniform age was fixed for the factory workmen also in that case because of the particular nature of work the factory workmen had to do, but one thing is clear, the trend in West Bengal region is to fix the age of retirement at 60 years for the clerical and subordinate staff. From this point of view the direction of the Tribunal that the appellant was entitled to continue in service till 60 years is justified.
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27. However, the finding of the Tribunal that the concerned workman was entitled to continue in service till he attained the age of 60 years can be supported on other grounds. We have already referred to the decision of this Court in (1960) 2 SCR 51 = (AIR 1960 SC 207 ) relating to the age of retirement being 60 years in respect of the appellants staff employed in Bombay region. Though that decision related to the employees of the appellant in Bombay region, it should be noted that this Court rejected the contention of the Company that it being an all-India concern, it should have uniform conditions of service throughout the country for its employees. It was further emphasised by this Court that industrial adjudication in India being based on industry-cum-region basis, the Industrial Tribunals have jurisdiction to make necessary changes in a uniform scheme so that it might accord with the prevailing conditions in the region where the employees were working, as the changes found necessary by the Tribunal were to ensure fair conditions of service.28. We have also referred to the inter-office letter dated December 6, 1962, which further shows that even according to the appellant the concerned workman is entitled to continue in service till the age of 60 years.29. Mr. Pai has referred us to certain decisions to show that the trend in West Bengal is to fix the age of retirement as 58 years for clerical and subordinate staff, Mr. Sen Gupta, also referred us to certain decision in other regions to show that the trend is to fix the age of retirement for staff members at 60 years. But it is not necessary for us to refer to those decisions cited either by Mr. Pai or Mr. Sen Gupta. We will only refer to the decisions of this Court in Messrs. British Paints (India) Ltd. v. Its Workmen, (1966) 2 SCR 523 = (AIR 1966 SC 732 ), which relates to West Bengal region wherein this Court fixed the age of retirement both for factory workmen and the staff members in the Company concerned at 60 years. No doubt, it is pointed out in the said decision that the uniform age was fixed for the factory workmen also in that case because of the particular nature of work the factory workmen had to do, but one thing is clear, the trend in West Bengal region is to fix the age of retirement at 60 years for the clerical and subordinate staff. From this point of view the direction of the Tribunal that the appellant was entitled to continue in service till 60 years is justified.
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