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Shagun Mahila Udyogik Sahakari San.Marya Vs. State Of Maharashtra | December, 2009, which shows that the appellant had manufactured fortified blended sukhadi premix on 12th December, 2009. Since the appellant did not have a manufacturing unit, the certificate is clearly procured for the purposes of this case. Learned senior counsel, therefore, submits that the High Court rightly dismissed the writ petition filed by the appellant herein. In reply to the submissions, Mr. Rohtagi submitted that the appellant is concerned only with transparency which must be observed in any tender process. The appellant is only desirous of getting an opportunity to participate in the tender process. 31. We have considered the submissions made by the learned counsel for the parties. We are of the considered opinion that the writ petition has been rightly dismissed by the High Court after examination of the entire issue. The High Court concluded that the appellant failed to satisfy the eligibility criteria as contained in Clause 6, as noticed earlier. The aforesaid clause requires that the tenderer should have produced the specified food for the last three consecutive years and supplied the same to Anganwadis in ICDS. Since the appellant did not possess a suitable manufacturing unit, the appellant would be rendered ineligible on this score alone. As pointed out by Mr. C.U. Singh, the appellant admitted in terms in its pleadings in I.A. No. 1 of 2010 that it does not satisfy conditions 6, 7 and 8. We could have, therefore, dismissed the appeal solely on the ground that the appellant had made a voluntary admission by which it was bound. However, keeping in view the importance of the issues involved, i.e., the provision of supplementary diet to a segment of the Indian population, which is either severely undernourished or in need of extra calories, we have chosen to examine the entire matter to ensure that the Scheme is being implemented in its letter and spirit by all the participating agencies.32. In our view, the High Court also correctly observed that the validity of the eligibility criteria contained in Clause 6 of the tender dated 7th December, 2009 has already been upheld by the Division Bench whilst dismissing the Writ Petition No. 2588 of 2009. The High Court also correctly negated the submissions of the appellant that in spite of not having a unit of its own, the appellant ought to be declared eligible. The High Court also found that in the facts and circumstances of the case, it was only respondent Nos. 4 to 6, who were suitable for grant of contract.33. We are also unable to accept the submission of Mr. Rohtagi that the original Government decision had limited the period of contract to one year. In fact, as demonstrated by the learned senior counsel for the respondents, the Government decision as well as tender condition clearly stipulated that the contract would be initially for one year. Upon completion of one year, the work of the successful candidate would be reassessed. In case, it is found that the performance has been satisfactory, the tender shall be extended for a period of two more years.34. We are also of the considered opinion that the food, which is to be supplied to the recipients as a part of the supplementary nutrition programme has to be prepared in the manner prescribed by the Government for safety and nutrient composition of the food. It can not be left to uncertainties of the machinery available with individual manufacturers.The successful supplier is duty bound to necessarily comply with all the specifications laid down by the Government in its norms. Mr. C.U. Singh and Mr. Patwalia, in our opinion, by referring to the various documents, have clearly demonstrated that the appellant is not eligible at all to be even considered in the tender process. It has also been pointed out that all the objections raised by the appellant and other Mahila Mandal / Mahila Sanstha / Mahila Bachat Gat etc. etc. were duly considered by the Government. This is evident from the letters dated 22nd February, 2010 and 23rd February, 2010.35. We are also not impressed by the submission of Mr. Rohtagi that the condition of having Rs. 1 crore over the three previous consecutive years, is either arbitrary or whimsical. Mr. C.U. Singh by making detailed reference to the counter affidavit has shown that in the State of Maharashtra, there are 34 districts having an annual value in terms of at-least Rs. 1.7 crores per district. Therefore, the condition of asking for minimum Rs. 1 crore turn over for the last three years can not be said to be arbitrary. In fact, the condition would be of utmost importance.36. We also find substance in the submission of Mr. C.U. Singh and Mr. Patwalia that EOI had deliberately stressed on the need of precise measurements for the preparation of the food. The supplier is required to provide a fine mix of all kinds of ingredients including the revised intake of proteins and calories to the precise level. In fact, the level of precision is earmarked for each kind of food. The concept behind the same can not be permitted to be demonized by referring to it as food prepared by “automated machines”. The procedure adopted is necessary to ensure that there is “zero infection” in the food which is going to be consumed by infants and the children who are already under nourished. It cannot be over emphasised that, since the beneficiaries of the Dense Energy Food and Fortified Blended Mixture are infants from the age group of 6 months to 3 years and pregnant and lactating mothers, it was all the more desirable to have fully automated plants. Such procedure avoids the use of human hands in processes like - handling, cleaning, grinding, extrusion, mixing etc., all of which are done automatically.37. We are of the considered opinion that the aforesaid considerations can not be said to be extraneous to the purpose for which EOI was floated. 38. Taking into consideration, all the facts and circumstances of the case, | 0[ds]We are of the considered opinion that the writ petition has been rightly dismissed by the High Court after examination of the entire issue. The High Court concluded that the appellant failed to satisfy the eligibility criteria as contained in Clause 6, as noticed earlier. The aforesaid clause requires that the tenderer should have produced the specified food for the last three consecutive years and supplied the same to Anganwadis in ICDS. Since the appellant did not possess a suitable manufacturing unit, the appellant would be rendered ineligible on this score alone. As pointed out by Mr. C.U. Singh, the appellant admitted in terms in its pleadings in I.A. No. 1 of 2010 that it does not satisfy conditions 6, 7 and 8. We could have, therefore, dismissed the appeal solely on the ground that the appellant had made a voluntary admission by which it was bound. However, keeping in view the importance of the issues involved, i.e., the provision of supplementary diet to a segment of the Indian population, which is either severely undernourished or in need of extra calories, we have chosen to examine the entire matter to ensure that the Scheme is being implemented in its letter and spirit by all the participating agencies.32. In our view, the High Court also correctly observed that the validity of the eligibility criteria contained in Clause 6 of the tender dated 7th December, 2009 has already been upheld by the Division Bench whilst dismissing the Writ Petition No. 2588 of 2009. The High Court also correctly negated the submissions of the appellant that in spite of not having a unit of its own, the appellant ought to be declared eligible. The High Court also found that in the facts and circumstances of the case, it was only respondent Nos. 4 to 6, who were suitable for grant of contract.33. We are also unable to accept the submission of Mr. Rohtagi that the original Government decision had limited the period of contract to one year. In fact, as demonstrated by the learned senior counsel for the respondents, the Government decision as well as tender condition clearly stipulated that the contract would be initially for one year. Upon completion of one year, the work of the successful candidate would be reassessed. In case, it is found that the performance has been satisfactory, the tender shall be extended for a period of two more years.34. We are also of the considered opinion that the food, which is to be supplied to the recipients as a part of the supplementary nutrition programme has to be prepared in the manner prescribed by the Government for safety and nutrient composition of the food. It can not be left to uncertainties of the machinery available with individual manufacturers.The successful supplier is duty bound to necessarily comply with all the specifications laid down by the Government in its norms. Mr. C.U. Singh and Mr. Patwalia, in our opinion, by referring to the various documents, have clearly demonstrated that the appellant is not eligible at all to be even considered in the tender process. It has also been pointed out that all the objections raised by the appellant and other Mahila Mandal / Mahila Sanstha / Mahila Bachat Gat etc. etc. were duly considered by the Government. This is evident from the letters dated 22nd February, 2010 and 23rd February, 2010.35. We are also not impressed by the submission of Mr. Rohtagi that the condition of having Rs. 1 crore over the three previous consecutive years, is either arbitrary or whimsical. Mr. C.U. Singh by making detailed reference to the counter affidavit has shown that in the State of Maharashtra, there are 34 districts having an annual value in terms of at-least Rs. 1.7 crores per district. Therefore, the condition of asking for minimum Rs. 1 crore turn over for the last three years can not be said to be arbitrary. In fact, the condition would be of utmost importance.36. We also find substance in the submission of Mr. C.U. Singh and Mr. Patwalia that EOI had deliberately stressed on the need of precise measurements for the preparation of the food. The supplier is required to provide a fine mix of all kinds of ingredients including the revised intake of proteins and calories to the precise level. In fact, the level of precision is earmarked for each kind of food. The concept behind the same can not be permitted to be demonized by referring to it as food prepared by. The procedure adopted is necessary to ensure that there isin the food which is going to be consumed by infants and the children who are already under nourished. It cannot be over emphasised that, since the beneficiaries of the Dense Energy Food and Fortified Blended Mixture are infants from the age group of 6 months to 3 years and pregnant and lactating mothers, it was all the more desirable to have fully automated plants. Such procedure avoids the use of human hands in processes like - handling, cleaning, grinding, extrusion, mixing etc., all of which are done automatically.37. We are of the considered opinion that the aforesaid considerations can not be said to be extraneous to the purpose for which EOI was floated. | 0 | 6,648 | 962 | ### 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:
December, 2009, which shows that the appellant had manufactured fortified blended sukhadi premix on 12th December, 2009. Since the appellant did not have a manufacturing unit, the certificate is clearly procured for the purposes of this case. Learned senior counsel, therefore, submits that the High Court rightly dismissed the writ petition filed by the appellant herein. In reply to the submissions, Mr. Rohtagi submitted that the appellant is concerned only with transparency which must be observed in any tender process. The appellant is only desirous of getting an opportunity to participate in the tender process. 31. We have considered the submissions made by the learned counsel for the parties. We are of the considered opinion that the writ petition has been rightly dismissed by the High Court after examination of the entire issue. The High Court concluded that the appellant failed to satisfy the eligibility criteria as contained in Clause 6, as noticed earlier. The aforesaid clause requires that the tenderer should have produced the specified food for the last three consecutive years and supplied the same to Anganwadis in ICDS. Since the appellant did not possess a suitable manufacturing unit, the appellant would be rendered ineligible on this score alone. As pointed out by Mr. C.U. Singh, the appellant admitted in terms in its pleadings in I.A. No. 1 of 2010 that it does not satisfy conditions 6, 7 and 8. We could have, therefore, dismissed the appeal solely on the ground that the appellant had made a voluntary admission by which it was bound. However, keeping in view the importance of the issues involved, i.e., the provision of supplementary diet to a segment of the Indian population, which is either severely undernourished or in need of extra calories, we have chosen to examine the entire matter to ensure that the Scheme is being implemented in its letter and spirit by all the participating agencies.32. In our view, the High Court also correctly observed that the validity of the eligibility criteria contained in Clause 6 of the tender dated 7th December, 2009 has already been upheld by the Division Bench whilst dismissing the Writ Petition No. 2588 of 2009. The High Court also correctly negated the submissions of the appellant that in spite of not having a unit of its own, the appellant ought to be declared eligible. The High Court also found that in the facts and circumstances of the case, it was only respondent Nos. 4 to 6, who were suitable for grant of contract.33. We are also unable to accept the submission of Mr. Rohtagi that the original Government decision had limited the period of contract to one year. In fact, as demonstrated by the learned senior counsel for the respondents, the Government decision as well as tender condition clearly stipulated that the contract would be initially for one year. Upon completion of one year, the work of the successful candidate would be reassessed. In case, it is found that the performance has been satisfactory, the tender shall be extended for a period of two more years.34. We are also of the considered opinion that the food, which is to be supplied to the recipients as a part of the supplementary nutrition programme has to be prepared in the manner prescribed by the Government for safety and nutrient composition of the food. It can not be left to uncertainties of the machinery available with individual manufacturers.The successful supplier is duty bound to necessarily comply with all the specifications laid down by the Government in its norms. Mr. C.U. Singh and Mr. Patwalia, in our opinion, by referring to the various documents, have clearly demonstrated that the appellant is not eligible at all to be even considered in the tender process. It has also been pointed out that all the objections raised by the appellant and other Mahila Mandal / Mahila Sanstha / Mahila Bachat Gat etc. etc. were duly considered by the Government. This is evident from the letters dated 22nd February, 2010 and 23rd February, 2010.35. We are also not impressed by the submission of Mr. Rohtagi that the condition of having Rs. 1 crore over the three previous consecutive years, is either arbitrary or whimsical. Mr. C.U. Singh by making detailed reference to the counter affidavit has shown that in the State of Maharashtra, there are 34 districts having an annual value in terms of at-least Rs. 1.7 crores per district. Therefore, the condition of asking for minimum Rs. 1 crore turn over for the last three years can not be said to be arbitrary. In fact, the condition would be of utmost importance.36. We also find substance in the submission of Mr. C.U. Singh and Mr. Patwalia that EOI had deliberately stressed on the need of precise measurements for the preparation of the food. The supplier is required to provide a fine mix of all kinds of ingredients including the revised intake of proteins and calories to the precise level. In fact, the level of precision is earmarked for each kind of food. The concept behind the same can not be permitted to be demonized by referring to it as food prepared by “automated machines”. The procedure adopted is necessary to ensure that there is “zero infection” in the food which is going to be consumed by infants and the children who are already under nourished. It cannot be over emphasised that, since the beneficiaries of the Dense Energy Food and Fortified Blended Mixture are infants from the age group of 6 months to 3 years and pregnant and lactating mothers, it was all the more desirable to have fully automated plants. Such procedure avoids the use of human hands in processes like - handling, cleaning, grinding, extrusion, mixing etc., all of which are done automatically.37. We are of the considered opinion that the aforesaid considerations can not be said to be extraneous to the purpose for which EOI was floated. 38. Taking into consideration, all the facts and circumstances of the case,
### Response:
0
### Explanation:
We are of the considered opinion that the writ petition has been rightly dismissed by the High Court after examination of the entire issue. The High Court concluded that the appellant failed to satisfy the eligibility criteria as contained in Clause 6, as noticed earlier. The aforesaid clause requires that the tenderer should have produced the specified food for the last three consecutive years and supplied the same to Anganwadis in ICDS. Since the appellant did not possess a suitable manufacturing unit, the appellant would be rendered ineligible on this score alone. As pointed out by Mr. C.U. Singh, the appellant admitted in terms in its pleadings in I.A. No. 1 of 2010 that it does not satisfy conditions 6, 7 and 8. We could have, therefore, dismissed the appeal solely on the ground that the appellant had made a voluntary admission by which it was bound. However, keeping in view the importance of the issues involved, i.e., the provision of supplementary diet to a segment of the Indian population, which is either severely undernourished or in need of extra calories, we have chosen to examine the entire matter to ensure that the Scheme is being implemented in its letter and spirit by all the participating agencies.32. In our view, the High Court also correctly observed that the validity of the eligibility criteria contained in Clause 6 of the tender dated 7th December, 2009 has already been upheld by the Division Bench whilst dismissing the Writ Petition No. 2588 of 2009. The High Court also correctly negated the submissions of the appellant that in spite of not having a unit of its own, the appellant ought to be declared eligible. The High Court also found that in the facts and circumstances of the case, it was only respondent Nos. 4 to 6, who were suitable for grant of contract.33. We are also unable to accept the submission of Mr. Rohtagi that the original Government decision had limited the period of contract to one year. In fact, as demonstrated by the learned senior counsel for the respondents, the Government decision as well as tender condition clearly stipulated that the contract would be initially for one year. Upon completion of one year, the work of the successful candidate would be reassessed. In case, it is found that the performance has been satisfactory, the tender shall be extended for a period of two more years.34. We are also of the considered opinion that the food, which is to be supplied to the recipients as a part of the supplementary nutrition programme has to be prepared in the manner prescribed by the Government for safety and nutrient composition of the food. It can not be left to uncertainties of the machinery available with individual manufacturers.The successful supplier is duty bound to necessarily comply with all the specifications laid down by the Government in its norms. Mr. C.U. Singh and Mr. Patwalia, in our opinion, by referring to the various documents, have clearly demonstrated that the appellant is not eligible at all to be even considered in the tender process. It has also been pointed out that all the objections raised by the appellant and other Mahila Mandal / Mahila Sanstha / Mahila Bachat Gat etc. etc. were duly considered by the Government. This is evident from the letters dated 22nd February, 2010 and 23rd February, 2010.35. We are also not impressed by the submission of Mr. Rohtagi that the condition of having Rs. 1 crore over the three previous consecutive years, is either arbitrary or whimsical. Mr. C.U. Singh by making detailed reference to the counter affidavit has shown that in the State of Maharashtra, there are 34 districts having an annual value in terms of at-least Rs. 1.7 crores per district. Therefore, the condition of asking for minimum Rs. 1 crore turn over for the last three years can not be said to be arbitrary. In fact, the condition would be of utmost importance.36. We also find substance in the submission of Mr. C.U. Singh and Mr. Patwalia that EOI had deliberately stressed on the need of precise measurements for the preparation of the food. The supplier is required to provide a fine mix of all kinds of ingredients including the revised intake of proteins and calories to the precise level. In fact, the level of precision is earmarked for each kind of food. The concept behind the same can not be permitted to be demonized by referring to it as food prepared by. The procedure adopted is necessary to ensure that there isin the food which is going to be consumed by infants and the children who are already under nourished. It cannot be over emphasised that, since the beneficiaries of the Dense Energy Food and Fortified Blended Mixture are infants from the age group of 6 months to 3 years and pregnant and lactating mothers, it was all the more desirable to have fully automated plants. Such procedure avoids the use of human hands in processes like - handling, cleaning, grinding, extrusion, mixing etc., all of which are done automatically.37. We are of the considered opinion that the aforesaid considerations can not be said to be extraneous to the purpose for which EOI was floated.
|
Kailash Nath Agarwal Vs. Pradeshiya Indst.&Inv.Corp.Of U.P | words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision may not be disregarded". 27. Since the Legislature has expressly chosen to make a distinction between the suits for recovery of the money and enforcement of guarantees and proceedings for the recovery of money, that must be given effect to. 28. Furthermore, the Parliament must be taken to be aware of the decision in Maharashtra Tubes and the fact that the word proceeding used in Section 22 (1) had been widely construed to include proceedings for recovery of dues by State Financial Corporation as arrears of land revenue. The deliberate choice of the word suit in the circumstances would indicate that Parliament intended to limit the ambit of the amendment introduced to particular modes for the recovery of money or enforcement of guarantees. 29. One of the reasons for the word proceeding in Section 22(1) being construed widely by this Court in Maharashtra Tubes was that the proceedings were against the company itself. Having regard to the object of the Act viz., if possible to revive the company, as also the operation of the various sections towards this end, the Court held that it would be unreasonable to give such meaning to the word proceeding as would result in dealing a death blow to the Company so that the entire procedure envisaged under the SICA would be set at naught. 30. We have been unable to find a corresponding reason for widening the scope of the word suit so as to cover proceedings against the guarantor of an industrial company. The object for enacting the SICA and for introducing the 1994 amendment was to facilitate the rehabilitation or the winding up of sick industrial companies. It is not the stated object of the Act to protect any other person or body. If the creditor enforces the guarantee in respect of the loan granted to the industrial company, we do not see how the provisions of the Act would be rendered nugatory or in any way affected. All that could happen would be that the guarantor would step into the shoes of the creditor vis-a-vis the company to the extent of the liability met. 31. It is true that this Court in Patheja Bros. Forgings & Stampings Vs. ICICI Ltd. (supra) construed the 1994 amendment to section 22(1) to hold: "For our purpose, therefore, the relevant words are: "no suit. for the enforcement . of any guarantee in respect of any loans or advance granted to the industrial company" shall lie without the consent of the Board or the appellate authority. The words are crystal clear. There is no ambiguity therein. It must, therefore, be held that no suit for the enforcement of a guarantee in respect of a loan or advance granted to the industrial company concerned will lie or can be proceeded with, without the sanction of the Board or the appellate authority under the said Act." 32. This is in keeping with the well established principle of statutory interpretation that where the language of the provision is explicit the language of the statute must prevail. 33. The appellants have, however, sought to draw sustenance from the following passage in the judgment: "The argument on behalf of the first respondent is that while this provision provides for the continuation of proceedings against the industrial company, there is no provision in the said Act which provides for the continuation of any held-up proceeding against the guarantor of a loan or advance to such company and that, therefore, Section 22 should be read as applying only to a suit against the industrial company and not a guarantor. Apart from the fact that, as indicated above, the language of Section 22 is explicit, the scheme would provide for the repayment of the loan or advance, and, therefore, would take within its ambit the claim on the guarantee; the question of proceeding with the suit against the guarantor would not arise. On the other hand, if the industrial company cannot be revived by a scheme, the embargo under Section 22 would cease to operate." (Emphasis ours) 34. These observations do not mean that when the words used are unambiguous, other extrinsic interpretative aids such as the objects of the statute, or the difficulties that would be faced by creditors will be relevant in interpreting the expression. The Court in Pathejas case merely observed that the creditor could recover its sum from the principal debtor under the scheme and, therefore, the claim on the guarantee would not arise if the amount is so recovered under the scheme. We do not read the observations quoted as holding that protection of guarantors of loans to a sick company is an object of the 1994 amendment which object must colour our interpretation of the amendment. Till 1994 no protection was afforded to the guarantors under the Act at all. A limited protection has been given in 1994. The expression used being clear and unambiguous, it is not for us to question the wisdom of the legislature in giving the limited protection it did or why such protection was necessary at all.35. Finally, the phrase introduced by the 1994 amendment relates to the pre-decretal stage because recovery proceedings by way of execution is already covered under the first half of sub-section (1) of Section 22. If the procedure under the U.P. Act is covered under the word proceeding in the first limb of Section 22(1) of SICA, which it is according to Maharashtra Tubes, it is not a suit for recovery under the second limb of that Section. As rightly contended by learned counsel appearing for PICUP, the proceedings under the U.P. Act are really recovery proceedings within the meaning of the word proceeding as defined in Maharashtra Tubes. Since Section 22(1) only prohibits recovery against the industrial company, there is no protection afforded to guarantors against recovery proceedings under the U.P. Act. | 0[ds]30. We have been unable to find a corresponding reason for widening the scope of the word suit so as to cover proceedings against the guarantor of an industrial company. The object for enacting the SICA and for introducing the 1994 amendment was to facilitate the rehabilitation or the winding up of sick industrial companies. It is not the stated object of the Act to protect any other person or body. If the creditor enforces the guarantee in respect of the loan granted to the industrial company, we do not see how the provisions of the Act would be rendered nugatory or in any way affected. All that could happen would be that the guarantor would step into the shoes of the creditor vis-a-vis the company to the extent of the liability met.This is in keeping with the well established principle of statutory interpretation that where the language of the provision is explicit the language of the statute must prevail.These observations do not mean that when the words used are unambiguous, other extrinsic interpretative aids such as the objects of the statute, or the difficulties that would be faced by creditors will be relevant in interpreting the expression. The Court in Pathejas case merely observed that the creditor could recover its sum from the principal debtor under the scheme and, therefore, the claim on the guarantee would not arise if the amount is so recovered under the scheme. We do not read the observations quoted as holding that protection of guarantors of loans to a sick company is an object of the 1994 amendment which object must colour our interpretation of the amendment. Till 1994 no protection was afforded to the guarantors under the Act at all. A limited protection has been given in 1994. The expression used being clear and unambiguous, it is not for us to question the wisdom of the legislature in giving the limited protection it did or why such protection was necessary at all.35. Finally, the phrase introduced by the 1994 amendment relates to the pre-decretal stage because recovery proceedings by way of execution is already covered under the first half of sub-section (1) of Section 22. If the procedure under the U.P. Act is covered under the word proceeding in the first limb of Section 22(1) of SICA, which it is according to Maharashtra Tubes, it is not a suit for recovery under the second limb of that Section. As rightly contended by learned counsel appearing for PICUP, the proceedings under the U.P. Act are really recovery proceedings within the meaning of the word proceeding as defined in Maharashtra Tubes. Since Section 22(1) only prohibits recovery against the industrial company, there is no protection afforded to guarantors against recovery proceedings under the U.P. Act. | 0 | 4,885 | 501 | ### 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:
words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision may not be disregarded". 27. Since the Legislature has expressly chosen to make a distinction between the suits for recovery of the money and enforcement of guarantees and proceedings for the recovery of money, that must be given effect to. 28. Furthermore, the Parliament must be taken to be aware of the decision in Maharashtra Tubes and the fact that the word proceeding used in Section 22 (1) had been widely construed to include proceedings for recovery of dues by State Financial Corporation as arrears of land revenue. The deliberate choice of the word suit in the circumstances would indicate that Parliament intended to limit the ambit of the amendment introduced to particular modes for the recovery of money or enforcement of guarantees. 29. One of the reasons for the word proceeding in Section 22(1) being construed widely by this Court in Maharashtra Tubes was that the proceedings were against the company itself. Having regard to the object of the Act viz., if possible to revive the company, as also the operation of the various sections towards this end, the Court held that it would be unreasonable to give such meaning to the word proceeding as would result in dealing a death blow to the Company so that the entire procedure envisaged under the SICA would be set at naught. 30. We have been unable to find a corresponding reason for widening the scope of the word suit so as to cover proceedings against the guarantor of an industrial company. The object for enacting the SICA and for introducing the 1994 amendment was to facilitate the rehabilitation or the winding up of sick industrial companies. It is not the stated object of the Act to protect any other person or body. If the creditor enforces the guarantee in respect of the loan granted to the industrial company, we do not see how the provisions of the Act would be rendered nugatory or in any way affected. All that could happen would be that the guarantor would step into the shoes of the creditor vis-a-vis the company to the extent of the liability met. 31. It is true that this Court in Patheja Bros. Forgings & Stampings Vs. ICICI Ltd. (supra) construed the 1994 amendment to section 22(1) to hold: "For our purpose, therefore, the relevant words are: "no suit. for the enforcement . of any guarantee in respect of any loans or advance granted to the industrial company" shall lie without the consent of the Board or the appellate authority. The words are crystal clear. There is no ambiguity therein. It must, therefore, be held that no suit for the enforcement of a guarantee in respect of a loan or advance granted to the industrial company concerned will lie or can be proceeded with, without the sanction of the Board or the appellate authority under the said Act." 32. This is in keeping with the well established principle of statutory interpretation that where the language of the provision is explicit the language of the statute must prevail. 33. The appellants have, however, sought to draw sustenance from the following passage in the judgment: "The argument on behalf of the first respondent is that while this provision provides for the continuation of proceedings against the industrial company, there is no provision in the said Act which provides for the continuation of any held-up proceeding against the guarantor of a loan or advance to such company and that, therefore, Section 22 should be read as applying only to a suit against the industrial company and not a guarantor. Apart from the fact that, as indicated above, the language of Section 22 is explicit, the scheme would provide for the repayment of the loan or advance, and, therefore, would take within its ambit the claim on the guarantee; the question of proceeding with the suit against the guarantor would not arise. On the other hand, if the industrial company cannot be revived by a scheme, the embargo under Section 22 would cease to operate." (Emphasis ours) 34. These observations do not mean that when the words used are unambiguous, other extrinsic interpretative aids such as the objects of the statute, or the difficulties that would be faced by creditors will be relevant in interpreting the expression. The Court in Pathejas case merely observed that the creditor could recover its sum from the principal debtor under the scheme and, therefore, the claim on the guarantee would not arise if the amount is so recovered under the scheme. We do not read the observations quoted as holding that protection of guarantors of loans to a sick company is an object of the 1994 amendment which object must colour our interpretation of the amendment. Till 1994 no protection was afforded to the guarantors under the Act at all. A limited protection has been given in 1994. The expression used being clear and unambiguous, it is not for us to question the wisdom of the legislature in giving the limited protection it did or why such protection was necessary at all.35. Finally, the phrase introduced by the 1994 amendment relates to the pre-decretal stage because recovery proceedings by way of execution is already covered under the first half of sub-section (1) of Section 22. If the procedure under the U.P. Act is covered under the word proceeding in the first limb of Section 22(1) of SICA, which it is according to Maharashtra Tubes, it is not a suit for recovery under the second limb of that Section. As rightly contended by learned counsel appearing for PICUP, the proceedings under the U.P. Act are really recovery proceedings within the meaning of the word proceeding as defined in Maharashtra Tubes. Since Section 22(1) only prohibits recovery against the industrial company, there is no protection afforded to guarantors against recovery proceedings under the U.P. Act.
### Response:
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### Explanation:
30. We have been unable to find a corresponding reason for widening the scope of the word suit so as to cover proceedings against the guarantor of an industrial company. The object for enacting the SICA and for introducing the 1994 amendment was to facilitate the rehabilitation or the winding up of sick industrial companies. It is not the stated object of the Act to protect any other person or body. If the creditor enforces the guarantee in respect of the loan granted to the industrial company, we do not see how the provisions of the Act would be rendered nugatory or in any way affected. All that could happen would be that the guarantor would step into the shoes of the creditor vis-a-vis the company to the extent of the liability met.This is in keeping with the well established principle of statutory interpretation that where the language of the provision is explicit the language of the statute must prevail.These observations do not mean that when the words used are unambiguous, other extrinsic interpretative aids such as the objects of the statute, or the difficulties that would be faced by creditors will be relevant in interpreting the expression. The Court in Pathejas case merely observed that the creditor could recover its sum from the principal debtor under the scheme and, therefore, the claim on the guarantee would not arise if the amount is so recovered under the scheme. We do not read the observations quoted as holding that protection of guarantors of loans to a sick company is an object of the 1994 amendment which object must colour our interpretation of the amendment. Till 1994 no protection was afforded to the guarantors under the Act at all. A limited protection has been given in 1994. The expression used being clear and unambiguous, it is not for us to question the wisdom of the legislature in giving the limited protection it did or why such protection was necessary at all.35. Finally, the phrase introduced by the 1994 amendment relates to the pre-decretal stage because recovery proceedings by way of execution is already covered under the first half of sub-section (1) of Section 22. If the procedure under the U.P. Act is covered under the word proceeding in the first limb of Section 22(1) of SICA, which it is according to Maharashtra Tubes, it is not a suit for recovery under the second limb of that Section. As rightly contended by learned counsel appearing for PICUP, the proceedings under the U.P. Act are really recovery proceedings within the meaning of the word proceeding as defined in Maharashtra Tubes. Since Section 22(1) only prohibits recovery against the industrial company, there is no protection afforded to guarantors against recovery proceedings under the U.P. Act.
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Tarinikamal Pandit and Others Vs. Perfulla Kumar Chatterjee (Dead) By L.Rs | issuing a cheque in favour of the third plaintiff with a direction that the third plaintiff should pay the sum of Rs. 1, 000 to the defendant towards expenses. A cheque was no doubt drawn by the first plaintiff in favour of the third plaintiff but there is nothing to indicate that this amount was to be paid to the defendant. The third plaintiff did not obtain any receipt from the defendant. The High Court rightly rejected the plea on behalf of the first plaintiff that the proceeds of the cheque were paid to the defendant. On the record there is hardly any acceptable evidence for establishing the payment of Rs. 13, 500 by the first plaintiff to the defendant or the payment of Rs. 3, 500 each by the plaintiffs 2 and 3 to the defendant.There is no explanation by the plaintiffs as to how the conveyance came to be registered in the name of the defendant only when the agreement was that it should be taken in the name of the three plaintiffs and the defendant jointly. The agreement contemplated taking of the conveyance in the names of the three plaintiffs and the defendant and in fact the application made by the defendant to the court prayed that the sale be confirmed in favour of the three plaintiffs and the defendant and the conveyance issued in their joint names. But the application for confirmation in the joint names was not pressed and the conveyance was ultimately made in favour of the first defendant alone. There is no explanation as to why the plaintiffs did not insist on the bid being confirmed in the names of all of them and the conveyance issued in their joint names. Equally on the side of the defendant there is no explanation as to why the signed the agreement which provided that the sale should be for the benefit of all of them and as to why he applied to the court praying for the confirmation of the sale in favour of all of them. Neither has the defendant denied receipt of Rs. 10, 000 from each of the plaintiffs 2 and 3. There is no provision for payment of interest by the defendant to plaintiffs 2 and 3 for the sums advanced. If it had been loan simpliciter there could be no explanation for absence of provision for payment of interest. On a close analysis of the evidence led on behalf of the plaintiffs and the defendant we agree with the High Court that neither the version of the plaintiffs nor that of the defendant discloses the entire truth. The conclusion we arrive at on the evidence is that the plaintiffs have failed to prove any prior agreement before the defendant made his bids for Rs. 30, 000 and later for Rs. 40, 000 and paid the deposits amounting to Rs. 10, 000 by himself. Plaintiffs 2 an d 3 have failed to prove that they have paid Rs. 3, 500 each towards expenses in addition to payment of Rs. 10, 000 by each of them which is admitted. The first plaintiff has totally failed in proving that he had paid any part of the consideration. On the side of the defendant there is no explanation as to why he subscribed to the agreement agreeing to share the property along with the three plaintiffs and for his applying to the court for confirmation of the sale in favour of all of them. Neither is there any explanation by him as to why plaintiffs 2 and 3 advanced Rs. 20, 000 without interest.Taking all the circumstances into account we feel the irresistible inference is that the defendant having made the bid by himself later on found himself badly in need of money to pay the balance of the bid amount. In trying to find the money he sought the help of the plaintiffs and received payment of Rs. 20, 000 from plaintiffs 2 and 3. The crucial question is wh ether this amount was received merely as a loan as contended by the defendant or given on the agreement that plaintiffs 2 and 3 should be entitled to a share each. The conduct of the defendant shows that while he badly needed the money he was not willing to share the property with them for the amount. Equally plaintiffs 2 and 3 wanted the share in the property for the money advanced by them. It is clear that the money was not advanced as a loan. It may be that the plaintiffs 2 and 3 were insisting on a hard bargain but it cannot be denied in the circumstances in which the defendant was placed that he had accepted it. The condition insisted upon by plaintiffs 2 and 3 might not have been fair but the agreement arrived at in the circumstances cannot be said to be due to undue influence. The relief to which the plaintiffs are entitled to under the agreement cannot be denied. The High Court after observing that plaintiffs 2 and 3 who are businessmen would not have lent a large sum of money without charging interest and that it is not likely that the plaintiffs would have been so charitable towards the defendant who was a stranger was of the view that it was not necessary to examine the defendants financial position and record a finding on the point for the purpose of appeal. While holding that the defendants version also does not disclose the entire truth the High Court held that would not help the plaintiffs who have to prove the case they set up in the plaint. On the short ground that the agreement dated 2nd April, 1960 does not reflect the true nature of the transaction the High Court held that the suit must fail. We are of the view that if the amount was not advanced as a loan but paid towards acquiring of a share in the property the relief cannot be denied. | 1[ds]We find it difficult to accept the story for plaintiffs 2 and 3 were reluctant to part with Rs. 10, 000 each without receipt even though the first plaintiff assured that there was no need for a receipt. In fact th e money was not parted with by them till the second plaintiffs son accompanied the defendant to Calcutta and paid it in person to the Receiver. In such circumstances, it is not possible to accept the plea of plaintiffs 2 and 3 that they did not insist on a receipt for payment of Rs. 3, 500 each. In this connection, the evidence of P.W. 1 Kshetry that out of the sum of Rs. 30, 000 paid in cash Rs. 27, 000 was handed over to him by Narendra Kumar Aggarwal and only the balance was paid by the defendant was relied on by the plaintiffs to show that the share of plaintiffs 2 and 3 of Rs. 13, 500 each was paid. According to the defendant second plaintiffs son Narendra gave him Rs. 20, 000 and he had Rs. 10, 000 and he and Narendra counted Rs . 30, 000 and handed over the sum of Rs. 30, 000 to Kshetry, in the presence of the Judge. On the evidence the High Court came to the conclusion that the money was counted by Narendra and the defendant before it was paid to Kshetry and if Narendra handed to the Solicitor a sum of Rs. 27, 000 after counting, the inference that Rs. 27, 000 belonged to plaintiffs is not justified. We agree with the view taken by the High Court. We therefore find that plaintiffs 2 and 3 have not proved that t hey paid Rs. 3, 500 each towards the expenses. The evidence relating to payment by the first plaintiff is even worseThe High Court rightly rejected the plea on behalf of the first plaintiff that the proceeds of the cheque were paid to the defendant. On the record there is hardly any acceptable evidence for establishing the payment of Rs. 13, 500 by the first plaintiff to the defendant or the payment of Rs. 3, 500 each by the plaintiffs 2 and 3 to the defendant.There is no explanation by the plaintiffs as to how the conveyance came to be registered in the name of the defendant only when the agreement was that it should be taken in the name of the three plaintiffs and the defendant jointly. The agreement contemplated taking of the conveyance in the names of the three plaintiffs and the defendant and in fact the application made by the defendant to the court prayed that the sale be confirmed in favour of the three plaintiffs and the defendant and the conveyance issued in their joint names. But the application for confirmation in the joint names was not pressed and the conveyance was ultimately made in favour of the first defendant alone. There is no explanation as to why the plaintiffs did not insist on the bid being confirmed in the names of all of them and the conveyance issued in their joint names. Equally on the side of the defendant there is no explanation as to why the signed the agreement which provided that the sale should be for the benefit of all of them and as to why he applied to the court praying for the confirmation of the sale in favour of all of them. Neither has the defendant denied receipt of Rs. 10, 000 from each of the plaintiffs 2 and 3. There is no provision for payment of interest by the defendant to plaintiffs 2 and 3 for the sums advanced. If it had been loan simpliciter there could be no explanation for absence of provision for payment of interest. On a close analysis of the evidence led on behalf of the plaintiffs and the defendant we agree with the High Court that neither the version of the plaintiffs nor that of the defendant discloses the entire truth. The conclusion we arrive at on the evidence is that the plaintiffs have failed to prove any prior agreement before the defendant made his bids for Rs. 30, 000 and later for Rs. 40, 000 and paid the deposits amounting to Rs. 10, 000 by himself. Plaintiffs 2 an d 3 have failed to prove that they have paid Rs. 3, 500 each towards expenses in addition to payment of Rs. 10, 000 by each of them which is admitted. The first plaintiff has totally failed in proving that he had paid any part of the consideration. On the side of the defendant there is no explanation as to why he subscribed to the agreement agreeing to share the property along with the three plaintiffs and for his applying to the court for confirmation of the sale in favour of all of them. Neither is there any explanation by him as to why plaintiffs 2 and 3 advanced Rs. 20, 000 without interestTaking all the circumstances into account we feel the irresistible inference is that the defendant having made the bid by himself later on found himself badly in need of money to pay the balance of the bid amount. In trying to find the money he sought the help of the plaintiffs and received payment of Rs. 20, 000 from plaintiffs 2 and 3.The crucial question is wh ether this amount was received merely as a loan as contended by the defendant or given on the agreement that plaintiffs 2 and 3 should be entitled to a share each.The conduct of the defendant shows that while he badly needed the money he was not willing to share the property with them for the amount. Equally plaintiffs 2 and 3 wanted the share in the property for the money advanced by them. It is clear that the money was not advanced as a loan. It may be that the plaintiffs 2 and 3 were insisting on a hard bargain but it cannot be denied in the circumstances in which the defendant was placed that he had accepted it. The condition insisted upon by plaintiffs 2 and 3 might not have been fair but the agreement arrived at in the circumstances cannot be said to be due to undue influenceOn the short ground that the agreement dated 2nd April, 1960 does not reflect the true nature of the transaction the High Court held that the suit must fail. We are of the view that if the amount was not advanced as a loan but paid towards acquiring of a share in the property the relief cannot be deniedWhen th e court makes an order confirming the sale under order 21, Rule 92, the sale becomes absolute. After the sale becomes absolute under Rule 94 the court shall grant a certificate specifying the properties sold and the name of the person who at the tim e of the sale is declared to be the purchaser. Such certificate is required to bear the day and the date on which the sale became absolute. The certificate by the court referred to in sec. 66 is a certificate under order 21, Rule 94. The procedure envisaged for sale generally and sale of immovable property under Order 21 is sale by a public auction. Sale by a court through the Receiver appointed by court is not contemplated under these provisions. In a sale by a Receiver a certificate to the purchaser under Order 21, Rule 94, is not given by the Court. Therefore, the prohibition under sec. 66 cannot be invoked in the case of a sale by the Receiver. A Receiver is appointed under Order 40, Rule 1, and a property can be sold by the Receiver on the directions of the court even by private negotiations. The requirement of s. 66 of the C.P.C. is a certificate by the court as prescribed. In this case the conveyance Ex. 5 was in accordance with the original side Rules of the High Court. In the view we have taken that s. 66 is not applicable to sale by Receiver it is not necessary to go into the question whether a sale by the Receiver under the Rules of the Calcutta High Court would come within the purview of s . 66. Section 66 refers to execution of sales only and has no application to a sale held by a Receiver. In this view the objection raised by the learned counsel for the defendant has to be rejected. | 1 | 4,954 | 1,531 | ### Instruction:
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issuing a cheque in favour of the third plaintiff with a direction that the third plaintiff should pay the sum of Rs. 1, 000 to the defendant towards expenses. A cheque was no doubt drawn by the first plaintiff in favour of the third plaintiff but there is nothing to indicate that this amount was to be paid to the defendant. The third plaintiff did not obtain any receipt from the defendant. The High Court rightly rejected the plea on behalf of the first plaintiff that the proceeds of the cheque were paid to the defendant. On the record there is hardly any acceptable evidence for establishing the payment of Rs. 13, 500 by the first plaintiff to the defendant or the payment of Rs. 3, 500 each by the plaintiffs 2 and 3 to the defendant.There is no explanation by the plaintiffs as to how the conveyance came to be registered in the name of the defendant only when the agreement was that it should be taken in the name of the three plaintiffs and the defendant jointly. The agreement contemplated taking of the conveyance in the names of the three plaintiffs and the defendant and in fact the application made by the defendant to the court prayed that the sale be confirmed in favour of the three plaintiffs and the defendant and the conveyance issued in their joint names. But the application for confirmation in the joint names was not pressed and the conveyance was ultimately made in favour of the first defendant alone. There is no explanation as to why the plaintiffs did not insist on the bid being confirmed in the names of all of them and the conveyance issued in their joint names. Equally on the side of the defendant there is no explanation as to why the signed the agreement which provided that the sale should be for the benefit of all of them and as to why he applied to the court praying for the confirmation of the sale in favour of all of them. Neither has the defendant denied receipt of Rs. 10, 000 from each of the plaintiffs 2 and 3. There is no provision for payment of interest by the defendant to plaintiffs 2 and 3 for the sums advanced. If it had been loan simpliciter there could be no explanation for absence of provision for payment of interest. On a close analysis of the evidence led on behalf of the plaintiffs and the defendant we agree with the High Court that neither the version of the plaintiffs nor that of the defendant discloses the entire truth. The conclusion we arrive at on the evidence is that the plaintiffs have failed to prove any prior agreement before the defendant made his bids for Rs. 30, 000 and later for Rs. 40, 000 and paid the deposits amounting to Rs. 10, 000 by himself. Plaintiffs 2 an d 3 have failed to prove that they have paid Rs. 3, 500 each towards expenses in addition to payment of Rs. 10, 000 by each of them which is admitted. The first plaintiff has totally failed in proving that he had paid any part of the consideration. On the side of the defendant there is no explanation as to why he subscribed to the agreement agreeing to share the property along with the three plaintiffs and for his applying to the court for confirmation of the sale in favour of all of them. Neither is there any explanation by him as to why plaintiffs 2 and 3 advanced Rs. 20, 000 without interest.Taking all the circumstances into account we feel the irresistible inference is that the defendant having made the bid by himself later on found himself badly in need of money to pay the balance of the bid amount. In trying to find the money he sought the help of the plaintiffs and received payment of Rs. 20, 000 from plaintiffs 2 and 3. The crucial question is wh ether this amount was received merely as a loan as contended by the defendant or given on the agreement that plaintiffs 2 and 3 should be entitled to a share each. The conduct of the defendant shows that while he badly needed the money he was not willing to share the property with them for the amount. Equally plaintiffs 2 and 3 wanted the share in the property for the money advanced by them. It is clear that the money was not advanced as a loan. It may be that the plaintiffs 2 and 3 were insisting on a hard bargain but it cannot be denied in the circumstances in which the defendant was placed that he had accepted it. The condition insisted upon by plaintiffs 2 and 3 might not have been fair but the agreement arrived at in the circumstances cannot be said to be due to undue influence. The relief to which the plaintiffs are entitled to under the agreement cannot be denied. The High Court after observing that plaintiffs 2 and 3 who are businessmen would not have lent a large sum of money without charging interest and that it is not likely that the plaintiffs would have been so charitable towards the defendant who was a stranger was of the view that it was not necessary to examine the defendants financial position and record a finding on the point for the purpose of appeal. While holding that the defendants version also does not disclose the entire truth the High Court held that would not help the plaintiffs who have to prove the case they set up in the plaint. On the short ground that the agreement dated 2nd April, 1960 does not reflect the true nature of the transaction the High Court held that the suit must fail. We are of the view that if the amount was not advanced as a loan but paid towards acquiring of a share in the property the relief cannot be denied.
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names of the three plaintiffs and the defendant and in fact the application made by the defendant to the court prayed that the sale be confirmed in favour of the three plaintiffs and the defendant and the conveyance issued in their joint names. But the application for confirmation in the joint names was not pressed and the conveyance was ultimately made in favour of the first defendant alone. There is no explanation as to why the plaintiffs did not insist on the bid being confirmed in the names of all of them and the conveyance issued in their joint names. Equally on the side of the defendant there is no explanation as to why the signed the agreement which provided that the sale should be for the benefit of all of them and as to why he applied to the court praying for the confirmation of the sale in favour of all of them. Neither has the defendant denied receipt of Rs. 10, 000 from each of the plaintiffs 2 and 3. There is no provision for payment of interest by the defendant to plaintiffs 2 and 3 for the sums advanced. If it had been loan simpliciter there could be no explanation for absence of provision for payment of interest. On a close analysis of the evidence led on behalf of the plaintiffs and the defendant we agree with the High Court that neither the version of the plaintiffs nor that of the defendant discloses the entire truth. The conclusion we arrive at on the evidence is that the plaintiffs have failed to prove any prior agreement before the defendant made his bids for Rs. 30, 000 and later for Rs. 40, 000 and paid the deposits amounting to Rs. 10, 000 by himself. Plaintiffs 2 an d 3 have failed to prove that they have paid Rs. 3, 500 each towards expenses in addition to payment of Rs. 10, 000 by each of them which is admitted. The first plaintiff has totally failed in proving that he had paid any part of the consideration. On the side of the defendant there is no explanation as to why he subscribed to the agreement agreeing to share the property along with the three plaintiffs and for his applying to the court for confirmation of the sale in favour of all of them. Neither is there any explanation by him as to why plaintiffs 2 and 3 advanced Rs. 20, 000 without interestTaking all the circumstances into account we feel the irresistible inference is that the defendant having made the bid by himself later on found himself badly in need of money to pay the balance of the bid amount. In trying to find the money he sought the help of the plaintiffs and received payment of Rs. 20, 000 from plaintiffs 2 and 3.The crucial question is wh ether this amount was received merely as a loan as contended by the defendant or given on the agreement that plaintiffs 2 and 3 should be entitled to a share each.The conduct of the defendant shows that while he badly needed the money he was not willing to share the property with them for the amount. Equally plaintiffs 2 and 3 wanted the share in the property for the money advanced by them. It is clear that the money was not advanced as a loan. It may be that the plaintiffs 2 and 3 were insisting on a hard bargain but it cannot be denied in the circumstances in which the defendant was placed that he had accepted it. The condition insisted upon by plaintiffs 2 and 3 might not have been fair but the agreement arrived at in the circumstances cannot be said to be due to undue influenceOn the short ground that the agreement dated 2nd April, 1960 does not reflect the true nature of the transaction the High Court held that the suit must fail. We are of the view that if the amount was not advanced as a loan but paid towards acquiring of a share in the property the relief cannot be deniedWhen th e court makes an order confirming the sale under order 21, Rule 92, the sale becomes absolute. After the sale becomes absolute under Rule 94 the court shall grant a certificate specifying the properties sold and the name of the person who at the tim e of the sale is declared to be the purchaser. Such certificate is required to bear the day and the date on which the sale became absolute. The certificate by the court referred to in sec. 66 is a certificate under order 21, Rule 94. The procedure envisaged for sale generally and sale of immovable property under Order 21 is sale by a public auction. Sale by a court through the Receiver appointed by court is not contemplated under these provisions. In a sale by a Receiver a certificate to the purchaser under Order 21, Rule 94, is not given by the Court. Therefore, the prohibition under sec. 66 cannot be invoked in the case of a sale by the Receiver. A Receiver is appointed under Order 40, Rule 1, and a property can be sold by the Receiver on the directions of the court even by private negotiations. The requirement of s. 66 of the C.P.C. is a certificate by the court as prescribed. In this case the conveyance Ex. 5 was in accordance with the original side Rules of the High Court. In the view we have taken that s. 66 is not applicable to sale by Receiver it is not necessary to go into the question whether a sale by the Receiver under the Rules of the Calcutta High Court would come within the purview of s . 66. Section 66 refers to execution of sales only and has no application to a sale held by a Receiver. In this view the objection raised by the learned counsel for the defendant has to be rejected.
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Narbada Prasad Vs. Chhagan Lal And Ors | speeches and had therefore come forward to depose truthfully as to what had happened. This witness no doubt spoke about Kannod but he lent assurance to the statements of P. Ws. 2, (Balchand) P. W. 7 (Babulal) and P. W. 15 (Chandergopal) about Khategoan. The learned Judge although he examined the two incidents separately, seemed to have viewed the entire propaganda of Kinkerji is integrated an as drawn the conclusion from both aspects of the case taken together. Therefore the case comes to this, that the witnesses who spoke about the speech at Khategaon were not unanimous as to the version of the speech, but that in our opinion is not a circumstance of vital importance, because speeches were also made at Kannod in which the returned candidate made similar observations about the sin of gohatya. The witnesses here are P. W. 4 (Narsingh Dass), P. W. 8 (Mazharul Haq) and P. W. 10 (K. L. Tiwari). We shall now refer to what they stated. P. W. 4 (Narsingh Dass) stated that on February 16, 1967 there was a meeting in his village in front of Ramniwas Somanis house. This Somani was the election agent of the returned candidate. At this meeting both Somani and Kinkarji spoke. When he went there Kinkarji was speaking. This is the version which he gave of the speech:"The Congress gets cows killed so you should not vote for Congress, but you should put your stamp on the Deepak our emblem. If you still vote for Congress you shall get the sin of killing a cow. P. W. 8 (Mazharul Haq) also said that Kinkarji recited some slokas and when he came to the end of the speech he said:"Congress gets cows killed. The Congress candidate Manjula Bai Wagle eats cows flesh. We have to bring Hindu Raj; put the seal on the deepak mark." P. W. 10s (Kunji Lal Tiwaris ) version was that Kinkarji said that the Congress was getting the cows killed. Manjula Bai should not be given any votes. If she was voted for there would be a sin. He also spoke that the Congressmen were doing black marketing. 12. It thus appears that at Kannod also there was a repetition of the same kind of speech which the other witnesses stated had been made at Khategaon. The question is: do we believe these witnesses or not? In our judgment there is ample evidence in this case that there was a reference to cow slaughter and the campaign of the Jan Sang that cow slaughter should be abolished in India. One cannot say that it is wrong to make such a propaganda. It would be perfectly legitimate for any party to promise that if it came into power it would abolish cow slaughter. That is not the gravamen of the charge. The gravamen of the charge is that it was added that if the voters voted for the Congress Candidate, they would be guilty of the sin of gohatya and here the law of election steps in.Section 123 provides that it is an election offence of undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right when any such person, as is referred to therein, induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure. 13. The question is whether in stating that if they voted for the Congress or a Congress candidate, they would be committing the sin of gohatya, amounted to an attempt to induce the voters to believe that they would become or would be rendered an object of divine displeasure or spiritual censure. In our opinion a statement of this kind falls within this provision of the section. It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore, it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to remind them that they would be objects of divine displeasure or spiritual censure. Kinkarji went beyond the permitted limits of canvassing and exhortation when he added to the legitimate manifesto of his party this observation that by voting for the Congress or the Congress candidate the voters would be objects of divine displeasure or spiritual censure. In our opinion both spiritual censure and divine displeasure are implicit in the speeches as made. The case, therefore, falls clearly within S. 123 (2) (ii) of the Representation of the People Act, 1951. 14. It will be encumbering this judgment if we record the incidents which relate to the election agent, except to say that the election agent Somani made similar speeches and the fact has been well established by reliable evidence. We are, accordingly satisfied that the returned candidate was guilty of corrupt practice and the High Court was right in holding that the election of the returned candidate should be avoided. 15. We may point out that there was a further statement that the Congress candidate Manjula Bai ate beef. Manjula Bai did not appear in the witness-box to deny this. In fact she showed little interest in the election petition and is reported to have left the matter to the elector who filed this petition. No one on her behalf appeared to deny this fact and therefore we leave the matter there. We do not express any opinion that any corrupt practice in relation to that statement was committed either in fact or in law. | 0[ds]It is a well-understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded.Even the certificate of the Tehsildar was not a certified or a true copy of the entry. It only gave the gist of the entry taken from the affidavit. It contains a mistake because the village "Dholgaon" is mentioned without the addition of the word "Kalan. It appears that there are two villages, Dholgaon Kalan and Dholgaon Khurd. The entry in the electoral roll clearly shows that it is Dhalgaon Kalan. In other words the certificate was inaccurate. The affidavit of Ram Kishen was also inaccurate inasmuch as it described the house as No. 91 whereas in Electoral Roll the house is given the number 91/2.We, however, do not go by these small inaccuracies because again the law is that which can be made certain is certain, but the fact is clear that the requirements of S. 33 (5) had to be and were not complied with. The rejection of the nomination paper of Ram Kishen by the Returning Office was thus justified. Ram Kishen explained that he was running about trying to get the other evidence and indeed he did arrive at 5 p. m. having earlier sent a telegram that he was coming with the required evidence. Unfortunately both the telegram and Ram Kishen arrived after the rejection of the nomination paper and therefore the Returning Officer could not recall what he had ordered. We are satisfied that the learned Single Judge erred in holding that the nomination paper of Ram Kishen was wrongly rejected. It was rightly rejected12. It thus appears that at Kannod also there was a repetition of the same kind of speech which the other witnesses stated had been made at Khategaon. The question is: do we believe these witnesses or not? In our judgment there is ample evidence in this case that there was a reference to cow slaughter and the campaign of the Jan Sang that cow slaughter should be abolished in India. One cannot say that it is wrong to make such a propaganda. It would be perfectly legitimate for any party to promise that if it came into power it would abolish cow slaughter. That is not the gravamen of the charge. The gravamen of the charge is that it was added that if the voters voted for the Congress Candidate, they would be guilty of the sin of gohatya and here the law of election steps in.Section 123 provides that it is an election offence of undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right when any such person, as is referred to therein, induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censureIt is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore, it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to remind them that they would be objects of divine displeasure or spiritual censure. Kinkarji went beyond the permitted limits of canvassing and exhortation when he added to the legitimate manifesto of his party this observation that by voting for the Congress or the Congress candidate the voters would be objects of divine displeasure or spiritual censure. In our opinion both spiritual censure and divine displeasure are implicit in the speeches as made. The case, therefore, falls clearly within S. 123 (2) (ii) of the Representation of the People Act, 195114. It will be encumbering this judgment if we record the incidents which relate to the election agent, except to say that the election agent Somani made similar speeches and the fact has been well established by reliable evidence. We are, accordingly satisfied that the returned candidate was guilty of corrupt practice and the High Court was right in holding that the election of the returned candidate should be avoided15. We may point out that there was a further statement that the Congress candidate Manjula Bai ate beef. Manjula Bai did not appear in the witness-box to deny this. In fact she showed little interest in the election petition and is reported to have left the matter to the elector who filed this petition. No one on her behalf appeared to deny this fact and therefore we leave the matter there. We do not express any opinion that any corrupt practice in relation to that statement was committed either in fact or in law. | 0 | 3,987 | 921 | ### Instruction:
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speeches and had therefore come forward to depose truthfully as to what had happened. This witness no doubt spoke about Kannod but he lent assurance to the statements of P. Ws. 2, (Balchand) P. W. 7 (Babulal) and P. W. 15 (Chandergopal) about Khategoan. The learned Judge although he examined the two incidents separately, seemed to have viewed the entire propaganda of Kinkerji is integrated an as drawn the conclusion from both aspects of the case taken together. Therefore the case comes to this, that the witnesses who spoke about the speech at Khategaon were not unanimous as to the version of the speech, but that in our opinion is not a circumstance of vital importance, because speeches were also made at Kannod in which the returned candidate made similar observations about the sin of gohatya. The witnesses here are P. W. 4 (Narsingh Dass), P. W. 8 (Mazharul Haq) and P. W. 10 (K. L. Tiwari). We shall now refer to what they stated. P. W. 4 (Narsingh Dass) stated that on February 16, 1967 there was a meeting in his village in front of Ramniwas Somanis house. This Somani was the election agent of the returned candidate. At this meeting both Somani and Kinkarji spoke. When he went there Kinkarji was speaking. This is the version which he gave of the speech:"The Congress gets cows killed so you should not vote for Congress, but you should put your stamp on the Deepak our emblem. If you still vote for Congress you shall get the sin of killing a cow. P. W. 8 (Mazharul Haq) also said that Kinkarji recited some slokas and when he came to the end of the speech he said:"Congress gets cows killed. The Congress candidate Manjula Bai Wagle eats cows flesh. We have to bring Hindu Raj; put the seal on the deepak mark." P. W. 10s (Kunji Lal Tiwaris ) version was that Kinkarji said that the Congress was getting the cows killed. Manjula Bai should not be given any votes. If she was voted for there would be a sin. He also spoke that the Congressmen were doing black marketing. 12. It thus appears that at Kannod also there was a repetition of the same kind of speech which the other witnesses stated had been made at Khategaon. The question is: do we believe these witnesses or not? In our judgment there is ample evidence in this case that there was a reference to cow slaughter and the campaign of the Jan Sang that cow slaughter should be abolished in India. One cannot say that it is wrong to make such a propaganda. It would be perfectly legitimate for any party to promise that if it came into power it would abolish cow slaughter. That is not the gravamen of the charge. The gravamen of the charge is that it was added that if the voters voted for the Congress Candidate, they would be guilty of the sin of gohatya and here the law of election steps in.Section 123 provides that it is an election offence of undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right when any such person, as is referred to therein, induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure. 13. The question is whether in stating that if they voted for the Congress or a Congress candidate, they would be committing the sin of gohatya, amounted to an attempt to induce the voters to believe that they would become or would be rendered an object of divine displeasure or spiritual censure. In our opinion a statement of this kind falls within this provision of the section. It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore, it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to remind them that they would be objects of divine displeasure or spiritual censure. Kinkarji went beyond the permitted limits of canvassing and exhortation when he added to the legitimate manifesto of his party this observation that by voting for the Congress or the Congress candidate the voters would be objects of divine displeasure or spiritual censure. In our opinion both spiritual censure and divine displeasure are implicit in the speeches as made. The case, therefore, falls clearly within S. 123 (2) (ii) of the Representation of the People Act, 1951. 14. It will be encumbering this judgment if we record the incidents which relate to the election agent, except to say that the election agent Somani made similar speeches and the fact has been well established by reliable evidence. We are, accordingly satisfied that the returned candidate was guilty of corrupt practice and the High Court was right in holding that the election of the returned candidate should be avoided. 15. We may point out that there was a further statement that the Congress candidate Manjula Bai ate beef. Manjula Bai did not appear in the witness-box to deny this. In fact she showed little interest in the election petition and is reported to have left the matter to the elector who filed this petition. No one on her behalf appeared to deny this fact and therefore we leave the matter there. We do not express any opinion that any corrupt practice in relation to that statement was committed either in fact or in law.
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It is a well-understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded.Even the certificate of the Tehsildar was not a certified or a true copy of the entry. It only gave the gist of the entry taken from the affidavit. It contains a mistake because the village "Dholgaon" is mentioned without the addition of the word "Kalan. It appears that there are two villages, Dholgaon Kalan and Dholgaon Khurd. The entry in the electoral roll clearly shows that it is Dhalgaon Kalan. In other words the certificate was inaccurate. The affidavit of Ram Kishen was also inaccurate inasmuch as it described the house as No. 91 whereas in Electoral Roll the house is given the number 91/2.We, however, do not go by these small inaccuracies because again the law is that which can be made certain is certain, but the fact is clear that the requirements of S. 33 (5) had to be and were not complied with. The rejection of the nomination paper of Ram Kishen by the Returning Office was thus justified. Ram Kishen explained that he was running about trying to get the other evidence and indeed he did arrive at 5 p. m. having earlier sent a telegram that he was coming with the required evidence. Unfortunately both the telegram and Ram Kishen arrived after the rejection of the nomination paper and therefore the Returning Officer could not recall what he had ordered. We are satisfied that the learned Single Judge erred in holding that the nomination paper of Ram Kishen was wrongly rejected. It was rightly rejected12. It thus appears that at Kannod also there was a repetition of the same kind of speech which the other witnesses stated had been made at Khategaon. The question is: do we believe these witnesses or not? In our judgment there is ample evidence in this case that there was a reference to cow slaughter and the campaign of the Jan Sang that cow slaughter should be abolished in India. One cannot say that it is wrong to make such a propaganda. It would be perfectly legitimate for any party to promise that if it came into power it would abolish cow slaughter. That is not the gravamen of the charge. The gravamen of the charge is that it was added that if the voters voted for the Congress Candidate, they would be guilty of the sin of gohatya and here the law of election steps in.Section 123 provides that it is an election offence of undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right when any such person, as is referred to therein, induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censureIt is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore, it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to remind them that they would be objects of divine displeasure or spiritual censure. Kinkarji went beyond the permitted limits of canvassing and exhortation when he added to the legitimate manifesto of his party this observation that by voting for the Congress or the Congress candidate the voters would be objects of divine displeasure or spiritual censure. In our opinion both spiritual censure and divine displeasure are implicit in the speeches as made. The case, therefore, falls clearly within S. 123 (2) (ii) of the Representation of the People Act, 195114. It will be encumbering this judgment if we record the incidents which relate to the election agent, except to say that the election agent Somani made similar speeches and the fact has been well established by reliable evidence. We are, accordingly satisfied that the returned candidate was guilty of corrupt practice and the High Court was right in holding that the election of the returned candidate should be avoided15. We may point out that there was a further statement that the Congress candidate Manjula Bai ate beef. Manjula Bai did not appear in the witness-box to deny this. In fact she showed little interest in the election petition and is reported to have left the matter to the elector who filed this petition. No one on her behalf appeared to deny this fact and therefore we leave the matter there. We do not express any opinion that any corrupt practice in relation to that statement was committed either in fact or in law.
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Ramagya Prasad Gupta & Ors Vs. Murli Prasad | other members of his family were interested in his one-anna share in the partnership whether he had formed a sub-partnership, or whether he had entered into an agreement with defendants 12 to 14 as regards his share in the partnership were all questions in which the appellants were not concerned for the simple reason that Parasnath Prasad alone was a partner in the firm. It is settled law that when the manager of a joint family becomes a partner in a firm, the other members of the family do not thereby become partners therein although they might have interest in his share in the partnership." If.....a partner has agreed to share his profits with a stranger, and the latter seeks an account of those profits, he should bring his action against that one partner alone, and not make the others parties" (Lindley on Partnership, 12th Edn. P. 494). The reason is that there is no. privity of contract between the other partners and the stranger. Likewise, for the same reason, when a partner files a suit for dissolution of the partnership and for account, the stranger in whose favour there is an agreement by a partner should not be made a party. It is, no. doubt, true the trial Court, by its decree, declared shares of Jagdish Narain and defendants 12 and 14 in the partnership assets. But that was not because they were partners entitled to share in the assets of the partnership but because the court thought that if their shares are declared, it would avoid another litigation between them and Parasnath Prasad. In other words, Jagdish Narain had no. right to a share in the partnership assets in any independent capacity, but he derived his right only through the plaintiff in the suit. It is a mistake to suppose that Jagdish Narain had been declared entitled to a share in the partnership assets in his own right. That Jagdish Narain and defendants Nos. 12 and 14 derived their right to share in the partnership assets through Parasnath Prasad, the plaintiff , and that there shares were carved out from the one anna share of Parasnath Prasad is clear form Para 11 and the decretal portion of the Judgment of the trial Court in Suit No. 68 of 1954. It was the one anna share of Parasnath Prasad that was divided between Parasnath Prasad and defendants 12 to 13 half and half. A mechanical reading of the decree will not throw any light on this question. As justice Brandeis said, "knowledge is essential to understanding and understanding should precede judging" (1923) 264 US 504 at p. 520 Jay Burns Baking Co. v. Charles W. Bryan Knowledge of the reasons by the trial Court impleaded Jagdish Narain as a party to the suit can be obtained only by reading the judgment of the trial Court. That knowledge alone will read to an understanding of the reason why the Court passed a decree declaring that Jagdish Narain was also entitled to a share in the partnership and the character in which or the basis on which he was declared entitled to a share in the partnership assets. That understanding must precede the process of judging whether he was a necessary party to the suit or to these appeals.36. Leaving aside all these considerations, let me assume that Jagdish Narain was interested in the assets of the partnership jointly with the other partners, even so, I should think these appeals have not abated. If under Order 41, Rule 4 of the Code of Civil Procedure. It was open to the appellants to appeal to this Court from the whole decree, for the reason that the decree proceeded on a ground common to all the respondents before the High Court, namely, that the partnership was illegal and, therefore, no. suit for dissolution of it lay, and, for this Court to reverse or vary the decree in favour of a non-appealing respondent and, therefore, set aside the decree against Jagdish Narain passed by the High Court, then it would be clear from the ruling of this Court in Mahabir Prasad v. Jage Ram, (1971) 1 SCC 265 = (AIR 1971 SC 742 ) that there will be no. abatement of these appeals, even if the legal representatives of Jagdish Narain were not impleaded in the appeals. The facts of that case were : one Mahabir Prasad, his mother Gunwanti Devi and his wife Saroj Devi (Plaintiffs) got a decree against Juge Ram and two others (defendants) for the amount of rent due from them. Their application for execution was dismissed by the learned Subordinate Judge, Delhi. Mahibir Prasad alone preferred an appeal to the High Court against the order and impleaded Gunwanti Devi and Saroj Devi as party-respondents. Saroj Devi died and the legal representatives were not brought on record within the period of limitation and her name was struck off from the array of respondents "subject to all just exception". The High Court dismissed the appeal on the ground that it abated in its entirety. Mahabir Prasad appealed to the Supreme Court. Shah, C. J., speaking for the Court, after observing that the power of the appellate Court under Order 41, Rule 4, to vary or modify the decree of a subordinate Court arises when one of the persons out of many against whom a decree or an order has been made on a ground which was common to him and others has appealed, said :"Competence of the Appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party respondent and on his death his heirs have not been brought on the record."37. I would hold that the appeals have not abated.ORDER BY THE COURT | 0[ds]20. We do not think that there is any substance in either of the two contentions. So far as the first contention is concerned it is true that Parasnath represented the joint family when the partnership had come into existence but much water had flown under the bridge thereafter. Jagdish Narain and his two brothers Kuldip and Kedar had applied to be made parties to the suit on the ground that they had separated not only amongst themselves but also from Parasnath. There was an award dt. 30-4-1949 and on the basis of the award a compromise decree was passed on 20-9-1951. The suit had been filed in 1954 and at the time of the suit, Parasnath, the plaintiff in the suit, was no. longer the karta of the family and could not represent the interest of Jagdish Narain or his two brothers Kuldip and Kedar. As a matter of fact, as already shown in the narrative of facts, they raised a serious contest to the suit of Parasnath on the ground of conflict of interest and the Trial Court had held in their favour. Parasnath did not appeal against the decree and even in the present appeals the share of Jagdish Narain and his two brothers as awarded by the Trial Court is not challenged. In fact they have asked that the decree in favour of Murli Prasad given by the High Court be set aside and the decree of the Trial Court be restored. Under these circumstances it will be wrong to say that in the present appeals the interest of deceased Jagdish Narain is fully represented by Parasnath or anybodyregard to the clear position of law in this respect the failure to bring on record the heirs or legal representatives of deceased Jagdish Narain, one of the sharers in the subject matter of the suit, must inevitably lead to the dismissal of the appeals. That brings the case squarely in the second test referred to in the decision of this Court in Nathu Rams case referred to above.In all such cases even the first test would be satisfied. There is a High Court decree which says that neither deceased Jagdish Narain nor anybody else was entitled to a share in the subject matter as against. Murli Prasad who is held to be the sole proprietor of the business. If the present appellants were to succeed it would lead to the courts coming to a decision that the deceased Jagdish Narain was entitled to a share in the subject matter of the suit as against Murli Prasad and the other alleged partners-a decision which would be in conflict with the decision of the High Court and will be contradictory to it though it has become final with respect to the subject matter between Murli Prasad and the deceased respondent.24. In view of the position discussed above it must be held that the appeals cannot be proceeded with and must be dismissed. No. order as to costs. | 0 | 8,941 | 529 | ### Instruction:
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other members of his family were interested in his one-anna share in the partnership whether he had formed a sub-partnership, or whether he had entered into an agreement with defendants 12 to 14 as regards his share in the partnership were all questions in which the appellants were not concerned for the simple reason that Parasnath Prasad alone was a partner in the firm. It is settled law that when the manager of a joint family becomes a partner in a firm, the other members of the family do not thereby become partners therein although they might have interest in his share in the partnership." If.....a partner has agreed to share his profits with a stranger, and the latter seeks an account of those profits, he should bring his action against that one partner alone, and not make the others parties" (Lindley on Partnership, 12th Edn. P. 494). The reason is that there is no. privity of contract between the other partners and the stranger. Likewise, for the same reason, when a partner files a suit for dissolution of the partnership and for account, the stranger in whose favour there is an agreement by a partner should not be made a party. It is, no. doubt, true the trial Court, by its decree, declared shares of Jagdish Narain and defendants 12 and 14 in the partnership assets. But that was not because they were partners entitled to share in the assets of the partnership but because the court thought that if their shares are declared, it would avoid another litigation between them and Parasnath Prasad. In other words, Jagdish Narain had no. right to a share in the partnership assets in any independent capacity, but he derived his right only through the plaintiff in the suit. It is a mistake to suppose that Jagdish Narain had been declared entitled to a share in the partnership assets in his own right. That Jagdish Narain and defendants Nos. 12 and 14 derived their right to share in the partnership assets through Parasnath Prasad, the plaintiff , and that there shares were carved out from the one anna share of Parasnath Prasad is clear form Para 11 and the decretal portion of the Judgment of the trial Court in Suit No. 68 of 1954. It was the one anna share of Parasnath Prasad that was divided between Parasnath Prasad and defendants 12 to 13 half and half. A mechanical reading of the decree will not throw any light on this question. As justice Brandeis said, "knowledge is essential to understanding and understanding should precede judging" (1923) 264 US 504 at p. 520 Jay Burns Baking Co. v. Charles W. Bryan Knowledge of the reasons by the trial Court impleaded Jagdish Narain as a party to the suit can be obtained only by reading the judgment of the trial Court. That knowledge alone will read to an understanding of the reason why the Court passed a decree declaring that Jagdish Narain was also entitled to a share in the partnership and the character in which or the basis on which he was declared entitled to a share in the partnership assets. That understanding must precede the process of judging whether he was a necessary party to the suit or to these appeals.36. Leaving aside all these considerations, let me assume that Jagdish Narain was interested in the assets of the partnership jointly with the other partners, even so, I should think these appeals have not abated. If under Order 41, Rule 4 of the Code of Civil Procedure. It was open to the appellants to appeal to this Court from the whole decree, for the reason that the decree proceeded on a ground common to all the respondents before the High Court, namely, that the partnership was illegal and, therefore, no. suit for dissolution of it lay, and, for this Court to reverse or vary the decree in favour of a non-appealing respondent and, therefore, set aside the decree against Jagdish Narain passed by the High Court, then it would be clear from the ruling of this Court in Mahabir Prasad v. Jage Ram, (1971) 1 SCC 265 = (AIR 1971 SC 742 ) that there will be no. abatement of these appeals, even if the legal representatives of Jagdish Narain were not impleaded in the appeals. The facts of that case were : one Mahabir Prasad, his mother Gunwanti Devi and his wife Saroj Devi (Plaintiffs) got a decree against Juge Ram and two others (defendants) for the amount of rent due from them. Their application for execution was dismissed by the learned Subordinate Judge, Delhi. Mahibir Prasad alone preferred an appeal to the High Court against the order and impleaded Gunwanti Devi and Saroj Devi as party-respondents. Saroj Devi died and the legal representatives were not brought on record within the period of limitation and her name was struck off from the array of respondents "subject to all just exception". The High Court dismissed the appeal on the ground that it abated in its entirety. Mahabir Prasad appealed to the Supreme Court. Shah, C. J., speaking for the Court, after observing that the power of the appellate Court under Order 41, Rule 4, to vary or modify the decree of a subordinate Court arises when one of the persons out of many against whom a decree or an order has been made on a ground which was common to him and others has appealed, said :"Competence of the Appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party respondent and on his death his heirs have not been brought on the record."37. I would hold that the appeals have not abated.ORDER BY THE COURT
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20. We do not think that there is any substance in either of the two contentions. So far as the first contention is concerned it is true that Parasnath represented the joint family when the partnership had come into existence but much water had flown under the bridge thereafter. Jagdish Narain and his two brothers Kuldip and Kedar had applied to be made parties to the suit on the ground that they had separated not only amongst themselves but also from Parasnath. There was an award dt. 30-4-1949 and on the basis of the award a compromise decree was passed on 20-9-1951. The suit had been filed in 1954 and at the time of the suit, Parasnath, the plaintiff in the suit, was no. longer the karta of the family and could not represent the interest of Jagdish Narain or his two brothers Kuldip and Kedar. As a matter of fact, as already shown in the narrative of facts, they raised a serious contest to the suit of Parasnath on the ground of conflict of interest and the Trial Court had held in their favour. Parasnath did not appeal against the decree and even in the present appeals the share of Jagdish Narain and his two brothers as awarded by the Trial Court is not challenged. In fact they have asked that the decree in favour of Murli Prasad given by the High Court be set aside and the decree of the Trial Court be restored. Under these circumstances it will be wrong to say that in the present appeals the interest of deceased Jagdish Narain is fully represented by Parasnath or anybodyregard to the clear position of law in this respect the failure to bring on record the heirs or legal representatives of deceased Jagdish Narain, one of the sharers in the subject matter of the suit, must inevitably lead to the dismissal of the appeals. That brings the case squarely in the second test referred to in the decision of this Court in Nathu Rams case referred to above.In all such cases even the first test would be satisfied. There is a High Court decree which says that neither deceased Jagdish Narain nor anybody else was entitled to a share in the subject matter as against. Murli Prasad who is held to be the sole proprietor of the business. If the present appellants were to succeed it would lead to the courts coming to a decision that the deceased Jagdish Narain was entitled to a share in the subject matter of the suit as against Murli Prasad and the other alleged partners-a decision which would be in conflict with the decision of the High Court and will be contradictory to it though it has become final with respect to the subject matter between Murli Prasad and the deceased respondent.24. In view of the position discussed above it must be held that the appeals cannot be proceeded with and must be dismissed. No. order as to costs.
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BCH ELECTRIC LIMITED Vs. PRADEEP MEHRA | the rates prescribed in the manner laid down in the Appendix, is to be done only in the case of employees in the Second category. 21. The intent of the Trust Deed and the Scheme is thus clear that the governing principles as regards the amount to be calculated and the rates to be applied have to be in accordance with the provisions of the Act, if an employee is covered by the provisions of the Act. If the amount is to be so calculated according to the provisions of the Act, in case of employees covered by the provisions of the Act, there is no other alternative which is offered by the Company or which is part of any award or agreement or contract entered into between the employer and employees. Thus, no reliance could be placed on Section 4(5) of the Act to submit that the employees are entitled to some greater advantage than what is available under the Act. As stated earlier, for Section 4(5) to apply there must be two alternatives, one in terms of the Act and one as per the award or agreement or contract with the employer. The Scheme on which heavy reliance was placed to submit that it afforded and made available better terms of gratuity itself emphasizes that in case of the employees who are covered under the Act, the amount payable as gratuity shall be in terms of the provisions of the Act. The Scheme does not therefore offer to the employees covered by the Act any other alternative apart from what is payable under the Act. 22. Rather than making available an alternative to the model and modalities of calculation of amount of gratuity, as placed on statute book by the provisions of the Act, the Trust Deed and the Scheme contemplates two kinds of employees. One, who are covered under the provisions of the Act and the other, who are not so covered. The historical background and the changes that the provisions of Section 2(e) and Section 4 have undergone show that not all employees were initially sought to be covered under the Act. Those, who were in wage-brackets greater than what was stipulated in Section 2(e) till it was finally amended to do away with the wage-bracket, were not covered by the Act. The Trust Deed and the Scheme sought to devise an apparatus and make provision for those who were otherwise not covered by the Act and for this reason contemplated two kinds of employees. The Trust Deed and the Scheme were executed and formulated in the year 1979 when the wage-bracket was a definite parameter for an employee to be covered under the Act. The intent of the Trust Deed and the Scheme has to be understood in that perspective. The idea was not to afford to the employees who are covered by the provisions of the Act, a package better than what was made available by the Act, but it was to extend similar benefit to those who would not be covered by the Act. 23. In Beed District Central Cooperative Bank Ltd. (2006) 8 SCC 514 , the gratuity scheme provided by the employer had better rate for computing gratuity but the ceiling limit was lower; whereas the entitlement under the provisions of the Act was at a lesser rate but the ceiling prescribed by the Act was higher than what was provided by the employer. This Court laid down that an employee must take complete package as offered by the employer or that which is available under the Act and he could not have synthesis or combination of some of the terms under the scheme provided by the employer while retaining the other terms offered by the Act. That was a situation where two alternatives were available to the employee. The High Court in the present case, however, distinguished said decision on the ground that the Scheme of the appellant itself provided for the rates as per Section 4(2) of the Act but without upper limit under Section 4(3) of the Act . In our view, the High Court failed to consider the effect and impact of Rule 6(b) of the scheme. The Single Judge did refer to said Rule 6(b) but found that the Rule was so broadly drafted that it could not be construed to contemplate the ceiling limit under Section 4(3) of the Act. In our view, the true import of Rule 6(b) which gets further emphasized by stipulation in the Appendix to the Scheme was lost sight of by the authorities under the Act and by the High Court. If an employee is covered by the provisions of the Act, according to said Rule 6(b), the amount of gratuity has to be calculated in accordance with the provisions of the Act. The Appendix to the Scheme reiterates the same principle. Thus, in case of such an employee the gratuity has to be calculated in accordance with the provisions of the Act and while so calculating, not only the basic principle available in Section 4(2) as to how the gratuity is to be calculated must be applied but also the ceiling which is part of Section 4(3) must also apply. The rates and the modalities of calculations of gratuity as available under the Scheme of the Rules are to apply only to those employees who are not covered by the provisions of the Act. 24. We have, therefore, no hesitation in holding that the Authorities under the Act and the High Court erred in accepting the claim preferred by the respondent. We hold that the appellant was right in going by the provisions of the Act in the present matter and by the ceiling prescribed under Section 4(3) of the Act. Any mistakes on its part in making some extra payments to some of the other employees would not create a right in favour of others in the face of the stipulations in the Trust Deed and the Scheme. | 1[ds]16. Thus, as on the day, when the respondent resigned from his service, that is on 01.06.2012, the relevant ceiling in Sub-Section (3) of Section 4 was at the level of ten lakh rupees and for an employee to be covered by the definition obtaining in Section 2(e) of the Act, there was no wage-bracket or ceilingSimilar submissions were advanced on behalf of the appellant before the High Court, as noted by the Single Judge. However, the submissions were rejected after placing reliance on Section 4(5) of the Act21. The intent of the Trust Deed and the Scheme is thus clear that the governing principles as regards the amount to be calculated and the rates to be applied have to be in accordance with the provisions of the Act, if an employee is covered by the provisions of the Act. If the amount is to be so calculated according to the provisions of the Act, in case of employees covered by the provisions of the Act, there is no other alternative which is offered by the Company or which is part of any award or agreement or contract entered into between the employer and employees. Thus, no reliance could be placed on Section 4(5) of the Act to submit that the employees are entitled to some greater advantage than what is available under the Act. As stated earlier, for Section 4(5) to apply there must be two alternatives, one in terms of the Act and one as per the award or agreement or contract with the employer. The Scheme on which heavy reliance was placed to submit that it afforded and made available better terms of gratuity itself emphasizes that in case of the employees who are covered under the Act, the amount payable as gratuity shall be in terms of the provisions of the Act. The Scheme does not therefore offer to theemployees covered by the Act any other alternative apart from what is payable under the Act22. Rather than making available an alternative to the model and modalities of calculation of amount of gratuity, as placed on statute book by the provisions of the Act, the Trust Deed and the Scheme contemplates two kinds of employees. One, who are covered under the provisions of the Act and the other, who are not so covered. The historical background and the changes that the provisions of Section 2(e) and Section 4 have undergone show that not all employees were initially sought to be covered under the Act. Those, who were in wage-brackets greater than what was stipulated in Section 2(e) till it was finally amended to do away with the wage-bracket, were not covered by the Act. The Trust Deed and the Scheme sought to devise an apparatus and make provision for those who were otherwise not covered by the Act and for this reason contemplated two kinds of employees. The Trust Deed and the Scheme were executed and formulated in the year 1979 when the wage-bracket was a definite parameter for an employee to be covered under the Act. The intent of the Trust Deed and the Scheme has to be understood in that perspective. The idea was not to afford to the employees who are covered by the provisions of the Act, a package better than what was made available by the Act, butit was to extend similar benefit to those who would not be covered by the ActIn our view, the High Court failed to consider the effect and impact of Rule 6(b) of the scheme. The Single Judge did refer to said Rule 6(b) but found that the Rule was so broadly drafted that it could not be construed to contemplate the ceiling limit under Section 4(3) of the Act. In our view, the true import of Rule 6(b) which gets further emphasized bystipulation in the Appendix to the Scheme was lost sight of by the authorities under the Act and by the High Court. If an employee is covered by the provisions of the Act, according to said Rule 6(b), the amount of gratuity has to be calculated in accordance with the provisions of the Act. The Appendix to the Scheme reiterates the same principle. Thus, in case of such an employee the gratuity has to be calculated in accordance with the provisions of the Act and while so calculating, not only the basic principle available in Section 4(2) as to how the gratuity is to be calculated must be applied but also the ceiling which is part of Section 4(3) must also apply. The rates and the modalities of calculations of gratuity as available under the Scheme of the Rules are to apply only to those employees who are not covered by the provisions of the Act24. We have, therefore, no hesitation in holding that the Authorities under the Act and the High Court erred in accepting the claim preferred by the respondent. We hold that the appellant was right in going by the provisions of the Act in the present matter and by the ceiling prescribed under Section 4(3) of the Act. Any mistakes on its part in making some extra payments to some of the other employees would not create a right in favour of others in the face of the stipulations in the Trust Deed and the Scheme. | 1 | 8,543 | 991 | ### 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:
the rates prescribed in the manner laid down in the Appendix, is to be done only in the case of employees in the Second category. 21. The intent of the Trust Deed and the Scheme is thus clear that the governing principles as regards the amount to be calculated and the rates to be applied have to be in accordance with the provisions of the Act, if an employee is covered by the provisions of the Act. If the amount is to be so calculated according to the provisions of the Act, in case of employees covered by the provisions of the Act, there is no other alternative which is offered by the Company or which is part of any award or agreement or contract entered into between the employer and employees. Thus, no reliance could be placed on Section 4(5) of the Act to submit that the employees are entitled to some greater advantage than what is available under the Act. As stated earlier, for Section 4(5) to apply there must be two alternatives, one in terms of the Act and one as per the award or agreement or contract with the employer. The Scheme on which heavy reliance was placed to submit that it afforded and made available better terms of gratuity itself emphasizes that in case of the employees who are covered under the Act, the amount payable as gratuity shall be in terms of the provisions of the Act. The Scheme does not therefore offer to the employees covered by the Act any other alternative apart from what is payable under the Act. 22. Rather than making available an alternative to the model and modalities of calculation of amount of gratuity, as placed on statute book by the provisions of the Act, the Trust Deed and the Scheme contemplates two kinds of employees. One, who are covered under the provisions of the Act and the other, who are not so covered. The historical background and the changes that the provisions of Section 2(e) and Section 4 have undergone show that not all employees were initially sought to be covered under the Act. Those, who were in wage-brackets greater than what was stipulated in Section 2(e) till it was finally amended to do away with the wage-bracket, were not covered by the Act. The Trust Deed and the Scheme sought to devise an apparatus and make provision for those who were otherwise not covered by the Act and for this reason contemplated two kinds of employees. The Trust Deed and the Scheme were executed and formulated in the year 1979 when the wage-bracket was a definite parameter for an employee to be covered under the Act. The intent of the Trust Deed and the Scheme has to be understood in that perspective. The idea was not to afford to the employees who are covered by the provisions of the Act, a package better than what was made available by the Act, but it was to extend similar benefit to those who would not be covered by the Act. 23. In Beed District Central Cooperative Bank Ltd. (2006) 8 SCC 514 , the gratuity scheme provided by the employer had better rate for computing gratuity but the ceiling limit was lower; whereas the entitlement under the provisions of the Act was at a lesser rate but the ceiling prescribed by the Act was higher than what was provided by the employer. This Court laid down that an employee must take complete package as offered by the employer or that which is available under the Act and he could not have synthesis or combination of some of the terms under the scheme provided by the employer while retaining the other terms offered by the Act. That was a situation where two alternatives were available to the employee. The High Court in the present case, however, distinguished said decision on the ground that the Scheme of the appellant itself provided for the rates as per Section 4(2) of the Act but without upper limit under Section 4(3) of the Act . In our view, the High Court failed to consider the effect and impact of Rule 6(b) of the scheme. The Single Judge did refer to said Rule 6(b) but found that the Rule was so broadly drafted that it could not be construed to contemplate the ceiling limit under Section 4(3) of the Act. In our view, the true import of Rule 6(b) which gets further emphasized by stipulation in the Appendix to the Scheme was lost sight of by the authorities under the Act and by the High Court. If an employee is covered by the provisions of the Act, according to said Rule 6(b), the amount of gratuity has to be calculated in accordance with the provisions of the Act. The Appendix to the Scheme reiterates the same principle. Thus, in case of such an employee the gratuity has to be calculated in accordance with the provisions of the Act and while so calculating, not only the basic principle available in Section 4(2) as to how the gratuity is to be calculated must be applied but also the ceiling which is part of Section 4(3) must also apply. The rates and the modalities of calculations of gratuity as available under the Scheme of the Rules are to apply only to those employees who are not covered by the provisions of the Act. 24. We have, therefore, no hesitation in holding that the Authorities under the Act and the High Court erred in accepting the claim preferred by the respondent. We hold that the appellant was right in going by the provisions of the Act in the present matter and by the ceiling prescribed under Section 4(3) of the Act. Any mistakes on its part in making some extra payments to some of the other employees would not create a right in favour of others in the face of the stipulations in the Trust Deed and the Scheme.
### Response:
1
### Explanation:
16. Thus, as on the day, when the respondent resigned from his service, that is on 01.06.2012, the relevant ceiling in Sub-Section (3) of Section 4 was at the level of ten lakh rupees and for an employee to be covered by the definition obtaining in Section 2(e) of the Act, there was no wage-bracket or ceilingSimilar submissions were advanced on behalf of the appellant before the High Court, as noted by the Single Judge. However, the submissions were rejected after placing reliance on Section 4(5) of the Act21. The intent of the Trust Deed and the Scheme is thus clear that the governing principles as regards the amount to be calculated and the rates to be applied have to be in accordance with the provisions of the Act, if an employee is covered by the provisions of the Act. If the amount is to be so calculated according to the provisions of the Act, in case of employees covered by the provisions of the Act, there is no other alternative which is offered by the Company or which is part of any award or agreement or contract entered into between the employer and employees. Thus, no reliance could be placed on Section 4(5) of the Act to submit that the employees are entitled to some greater advantage than what is available under the Act. As stated earlier, for Section 4(5) to apply there must be two alternatives, one in terms of the Act and one as per the award or agreement or contract with the employer. The Scheme on which heavy reliance was placed to submit that it afforded and made available better terms of gratuity itself emphasizes that in case of the employees who are covered under the Act, the amount payable as gratuity shall be in terms of the provisions of the Act. The Scheme does not therefore offer to theemployees covered by the Act any other alternative apart from what is payable under the Act22. Rather than making available an alternative to the model and modalities of calculation of amount of gratuity, as placed on statute book by the provisions of the Act, the Trust Deed and the Scheme contemplates two kinds of employees. One, who are covered under the provisions of the Act and the other, who are not so covered. The historical background and the changes that the provisions of Section 2(e) and Section 4 have undergone show that not all employees were initially sought to be covered under the Act. Those, who were in wage-brackets greater than what was stipulated in Section 2(e) till it was finally amended to do away with the wage-bracket, were not covered by the Act. The Trust Deed and the Scheme sought to devise an apparatus and make provision for those who were otherwise not covered by the Act and for this reason contemplated two kinds of employees. The Trust Deed and the Scheme were executed and formulated in the year 1979 when the wage-bracket was a definite parameter for an employee to be covered under the Act. The intent of the Trust Deed and the Scheme has to be understood in that perspective. The idea was not to afford to the employees who are covered by the provisions of the Act, a package better than what was made available by the Act, butit was to extend similar benefit to those who would not be covered by the ActIn our view, the High Court failed to consider the effect and impact of Rule 6(b) of the scheme. The Single Judge did refer to said Rule 6(b) but found that the Rule was so broadly drafted that it could not be construed to contemplate the ceiling limit under Section 4(3) of the Act. In our view, the true import of Rule 6(b) which gets further emphasized bystipulation in the Appendix to the Scheme was lost sight of by the authorities under the Act and by the High Court. If an employee is covered by the provisions of the Act, according to said Rule 6(b), the amount of gratuity has to be calculated in accordance with the provisions of the Act. The Appendix to the Scheme reiterates the same principle. Thus, in case of such an employee the gratuity has to be calculated in accordance with the provisions of the Act and while so calculating, not only the basic principle available in Section 4(2) as to how the gratuity is to be calculated must be applied but also the ceiling which is part of Section 4(3) must also apply. The rates and the modalities of calculations of gratuity as available under the Scheme of the Rules are to apply only to those employees who are not covered by the provisions of the Act24. We have, therefore, no hesitation in holding that the Authorities under the Act and the High Court erred in accepting the claim preferred by the respondent. We hold that the appellant was right in going by the provisions of the Act in the present matter and by the ceiling prescribed under Section 4(3) of the Act. Any mistakes on its part in making some extra payments to some of the other employees would not create a right in favour of others in the face of the stipulations in the Trust Deed and the Scheme.
|
Hdfc Bank Ltd Vs. Kumari Reshma | Court failed to appreciate that at the relevant time the offending vehicle was under the requisition of Respondent No. 1 – State of Assam under the provisions of the Assam Act. Therefore, Respondent No. 1 was squarely covered under the definition of owner as contained in Section 2(30) of the 1988 Act. The High Court failed to appreciate the underlying legislative intention in including in the definition of owner a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hire-purchase agreement to the effect that a person in control and possession of the vehicle should be construed as the owner and not alone the registered owner. The High Court further failed to appreciate the legislative intention that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The High Court also failed to appreciate that Section 146 of the 1988 Act requires that no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy meeting the requirements of Chapter XI of the 1988 Act and the State Government has violated the statutory provisions of the 1988 Act. (Emphasis supplied) 23. In the present case, as the facts have been unfurled, the appellant bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was subject of an agreement of hypothecation and was in possession and control under the respondent no.2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Kachraji Rayamalji (supra), in our considered opinion, was inappropriate because in the instant case all the documents were filed by the bank. In the said case, two-Judge Bench of this Court had doubted the relationship between the appellant and the respondent therein from the hire-purchase agreement. Be that as it may, the said case rested on its own facts. The decision in Kailash Nath Kothari (supra), the Court fastened the liability on the Corporation regard being had to the definition of the owner who was in control and possession of the vehicle. Similar to the effect is the judgment in Deepa Devi (supra). Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the insurance company. In the case of Degala Satyanarayanamma (supra), the learned Judges distinguished the ratio in Deepa Devi (supra) on the ground that it hinged on its special facts and fastened the liability on the insurer. In Kulsum (supra), the principle stated in Kailash Nath Kothari (supra) was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the owner. 24. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration. 25. In Purnya Kala Devi (supra), a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-in-interest of the appellant, Centurion Bank, was the registered owner along with respondent no.2. The respondent no. 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the respondent no.2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent no.2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable. 26. | 1[ds]In the present case, as the facts have been unfurled, the appellant bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was subject of an agreement of hypothecation and was in possession and control under the respondent no.2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Kachraji Rayamalji (supra), in our considered opinion, was inappropriate because in the instant case all the documents were filed by the bank. In the said case, two-Judge Bench of this Court had doubted the relationship between the appellant and the respondent therein from the hire-purchase agreement. Be that as it may, the said case rested on its own facts. The decision in Kailash Nath Kothari (supra), the Court fastened the liability on the Corporation regard being had to the definition of the owner who was in control and possession of the vehicle. Similar to the effect is the judgment in Deepa Devi (supra). Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the insurance company. In the case of Degala Satyanarayanamma (supra), the learned Judges distinguished the ratio in Deepa Devi (supra) on the ground that it hinged on its special facts and fastened the liability on the insurer. In Kulsum (supra), the principle stated in Kailash Nath Kothari (supra) was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the ownerOn a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exonerationIn Purnya Kala Devi (supra), a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-in-interest of the appellant, Centurion Bank, was the registered owner along with respondent no.2. The respondent no. 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the respondent no.2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent no.2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable10. On a plain reading of the aforesaid definition, it is demonstrable that a person in whose name a motor vehicle stands registered is the owner of the vehicle and, where motor vehicle is the subject ofor an agreement of hypothecation, the person in possession of the vehicle under that agreement is the owner. It also stipulates that in case of a minor, the guardian of such a minor shall be treated as the owner. Thus, the intention of the legislature in case of a minor is mandated to treat the guardian of such a minor as the owner. This is the first exception to the definition of the term owner. The second exception that has been carved out is that in relation to a motor vehicle, which is the subject ofor an agreement of lease or an agreement of hypothecation, the person in possession of vehicle under that agreement is the owner. Be it noted, the legislature has deliberately carved out these exceptions from registered owners thereby making the guardian of a minor liable, and the person in possession of the vehicle under the agreements mentioned in the dictionary clause to be the owners for the purposes of this Act12. After so holding, the Court repelled the submission of the counsel for the appellant that there was no evidence to show the appellant had any right to control the driver of the truck. The Court opined that in the circumstances of the case, the logical inference must be that, had the documents that set out the true relationship between the appellant and the second respondent been produced, they would have shown that the appellant had a right to exercise control in the matter of the plying of the truck and the driver thereofIn the present case, as the facts have been unfurled, the appellant bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was subject of an agreement of hypothecation and was in possession and control under the respondent no.2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Kachraji Rayamalji (supra), in our considered opinion, was inappropriate because in the instant case all the documents were filed by the bank. In the said case,e Bench of this Court had doubted the relationship between the appellant and the respondent therein from theagreement. Be that as it may, the said case rested on its own facts. The decision in Kailash Nath Kothari (supra), the Court fastened the liability on the Corporation regard being had to the definition of the owner who was in control and possession of the vehicle. Similar to the effect is the judgment in Deepa Devi (supra). Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the insurance company. In the case of Degala Satyanarayanamma (supra), the learned Judges distinguished the ratio in Deepa Devi (supra) on the ground that it hinged on its special facts and fastened the liability on the insurer. In Kulsum (supra), the principle stated in Kailash Nath Kothari (supra) was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the ownerOn a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exonerationIn Purnya Kala Devi (supra), ae Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, thet of the appellant, Centurion Bank, was the registered owner along with respondent no.2. The respondent no. 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the respondent no.2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent no.2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly | 1 | 6,696 | 2,010 | ### 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:
Court failed to appreciate that at the relevant time the offending vehicle was under the requisition of Respondent No. 1 – State of Assam under the provisions of the Assam Act. Therefore, Respondent No. 1 was squarely covered under the definition of owner as contained in Section 2(30) of the 1988 Act. The High Court failed to appreciate the underlying legislative intention in including in the definition of owner a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hire-purchase agreement to the effect that a person in control and possession of the vehicle should be construed as the owner and not alone the registered owner. The High Court further failed to appreciate the legislative intention that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The High Court also failed to appreciate that Section 146 of the 1988 Act requires that no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy meeting the requirements of Chapter XI of the 1988 Act and the State Government has violated the statutory provisions of the 1988 Act. (Emphasis supplied) 23. In the present case, as the facts have been unfurled, the appellant bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was subject of an agreement of hypothecation and was in possession and control under the respondent no.2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Kachraji Rayamalji (supra), in our considered opinion, was inappropriate because in the instant case all the documents were filed by the bank. In the said case, two-Judge Bench of this Court had doubted the relationship between the appellant and the respondent therein from the hire-purchase agreement. Be that as it may, the said case rested on its own facts. The decision in Kailash Nath Kothari (supra), the Court fastened the liability on the Corporation regard being had to the definition of the owner who was in control and possession of the vehicle. Similar to the effect is the judgment in Deepa Devi (supra). Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the insurance company. In the case of Degala Satyanarayanamma (supra), the learned Judges distinguished the ratio in Deepa Devi (supra) on the ground that it hinged on its special facts and fastened the liability on the insurer. In Kulsum (supra), the principle stated in Kailash Nath Kothari (supra) was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the owner. 24. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration. 25. In Purnya Kala Devi (supra), a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-in-interest of the appellant, Centurion Bank, was the registered owner along with respondent no.2. The respondent no. 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the respondent no.2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent no.2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable. 26.
### Response:
1
### Explanation:
minor shall be treated as the owner. Thus, the intention of the legislature in case of a minor is mandated to treat the guardian of such a minor as the owner. This is the first exception to the definition of the term owner. The second exception that has been carved out is that in relation to a motor vehicle, which is the subject ofor an agreement of lease or an agreement of hypothecation, the person in possession of vehicle under that agreement is the owner. Be it noted, the legislature has deliberately carved out these exceptions from registered owners thereby making the guardian of a minor liable, and the person in possession of the vehicle under the agreements mentioned in the dictionary clause to be the owners for the purposes of this Act12. After so holding, the Court repelled the submission of the counsel for the appellant that there was no evidence to show the appellant had any right to control the driver of the truck. The Court opined that in the circumstances of the case, the logical inference must be that, had the documents that set out the true relationship between the appellant and the second respondent been produced, they would have shown that the appellant had a right to exercise control in the matter of the plying of the truck and the driver thereofIn the present case, as the facts have been unfurled, the appellant bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was subject of an agreement of hypothecation and was in possession and control under the respondent no.2. The High Court has proceeded both in the main judgment as well as in the review that the financier steps into the shoes of the owner. Reliance placed on Kachraji Rayamalji (supra), in our considered opinion, was inappropriate because in the instant case all the documents were filed by the bank. In the said case,e Bench of this Court had doubted the relationship between the appellant and the respondent therein from theagreement. Be that as it may, the said case rested on its own facts. The decision in Kailash Nath Kothari (supra), the Court fastened the liability on the Corporation regard being had to the definition of the owner who was in control and possession of the vehicle. Similar to the effect is the judgment in Deepa Devi (supra). Be it stated, in the said case the Court ruled that the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and the insurance company. In the case of Degala Satyanarayanamma (supra), the learned Judges distinguished the ratio in Deepa Devi (supra) on the ground that it hinged on its special facts and fastened the liability on the insurer. In Kulsum (supra), the principle stated in Kailash Nath Kothari (supra) was distinguished and taking note of the fact that at the relevant time, the vehicle in question was insured with it and the policy was very much in force and hence, the insurer was liable to indemnify the ownerOn a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exonerationIn Purnya Kala Devi (supra), ae Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, thet of the appellant, Centurion Bank, was the registered owner along with respondent no.2. The respondent no. 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the respondent no.2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent no.2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly
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ER. K. ARUMUGAM Vs. V. BALAKRISHNAN | learned Single Judge erred in entertaining the contempt petition. Apart from entertaining the contempt petition, the learned Single Judge further fell in error in issuing positive direction to the authorities to pay further compensation at the rate of Rs.600/- per sq. ft., which, in our considered view, is arbitrary and unsustainable. 15. The learned senior counsel Mr. Ramamoorthy appearing for the Board submitted that when the contempt petition came up for hearing on 25.11.2016, the learned Single Judge issued oral instructions to the TWAD Board and the appellant Board was compelled to take further steps in fixing the higher land value. It is stated that though no orders were passed by the learned Single Judge on 25.11.2016, oral directions were issued by the learned Single Judge. The same is reflected in the proceeding of the District Collector dated 30.11.2016 as seen from the following:- ….Thereafter, the land owner filed the contempt of court petition in No.2626/2016 before the Chennai High Court. When the aforesaid case was on trial, on 25.11.2016, as per the instructions given by the honourable judge, today (30.11.2016) the Superintending Engineer of the TWAD Board and the District Registrar Kanchipuram, in the meeting held with them, it is informed to the land owner as follows….. Though much reliance was placed upon the proceedings of the District Collector dated 30.11.2016, we are constrained to observe that the said proceeding of the District Collector dated 30.11.2016 fixing the land value at the rate of Rs.500/- per sq. ft. as on 30.11.2016 was passed under the fear of contempt of court which, in our view, is liable to be quashed. In any event, when the entry into land was way back in 1990-91, the first respondent cannot claim that compensation be paid to him on the value of the land fixed in the year 2016 as of 30.11.2016. 16. The learned senior counsel appearing for the first respondent placed reliance upon the statement of the learned Additional Advocate General who represented the Board in the Contempt Petition No.2626/2016 who has stated ….that the court should confirm itself to order compensation at the rate of Rs.500/- per sq. ft. This contention does not merit acceptance. Be it noted that when the matter was heard by the learned Single Judge on 13.02.2017, no affidavit has been filed by any responsible officer that the compensation may be paid to the first respondent at the rate of Rs.500/- per sq. ft. Since we are quashing the order of the District Collector dated 30.11.2016, in our considered view, the first respondent cannot fall back upon statement of the learned Additional Advocate General made in the court. The respondent cannot take advantage of such oral concession made by the learned Additional Advocate General. 17. In the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed. Observing that in the contempt jurisdiction, the court cannot travel beyond the four corners of the order which is alleged to have been floated, in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others v. M. George Ravishekaran and others (2014) 3 SCC 373 , speaking for the Bench, Justice Ranjan Gogoi held as under:- 19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self- determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. T arak Nath Ganguly (2002) 5 SCC 352 , V.M. Manohar Prasad v. N. Ratnam Raju (2004) 13 SCC 610, Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami (2008) 5 SCC 339 and Union of India v. Subedar Devassy PV (2006) 1 SCC 613. [underlining added] Applying the above principles to the present case, it is clear that the Single Judge fell in error in entertaining the contempt petition and further erred in directing the TWAD Board to pay compensation at the rate of Rs.600/- per sq. ft. which works out to more than Rs.4,00,00,000/-. It is public money and having implications on the public exchequer, the public money cannot be allowed to be taken away by an individual by filing contempt petition thereby arm-twisting the authorities. The order passed by the learned Single Judge affirmed by the Division Bench is ex-facie erroneous and liable to be set aside. | 1[ds]12. A party can be proceeded for disobedience of the order of the court only when there is willful disobedience and non- compliance of the order passed by the court. On perusal of the order dated 03.02.2016 passed in Writ Petition No.3874/2016, it is seen that in the said order, court has only directed the authorities to ensure fair and reasonable compensation be sanctioned to the first respondent and be paid at the earliest. The officers quickly acted in order to comply with the direction of the High Court. When the direction was only to consider the case of the first respondent for ensuring fair and reasonable compensation and having regard to the swift action taken by the appellant and other officials, in our view, there was no disobedience of the order of the court, much less wilful disobedience to invoke contempt jurisdiction13. After the State Level Committee remitted the matter to the District Collector, the District Collector conducted a detailed enquiry and took into consideration the prevailing guideline value as on 01.04.2012. After examining the report of the Sub-Registrar, Walajabad and taking into consideration the guideline value, by proceeding dated 23.05.2016 the District Collector fixed the land value at Rs.200/- per sq. ft. which was the guideline value as on 01.04.2012. As pointed out earlier, the total value of the land was arrived at Rs.75,42,800/- and the interest at the rate of 12% totalling Rs.1,11,80,723/- was paid to the first respondent which the first respondent received under protest. In compliance of the order of the High Court, the District Collector passed the order fixing the land value at the rate of Rs.200/- per sq. ft. as on 01.04.2012 (though the land came to be in occupation of TWAD Board way back in 1991). The first respondent has not challenged the said compensation fixed at the rate of Rs.200/- sq. ft. as on 01.04.2012 in the manner known to law. In compliance of the order of the High Court, when the amount has been paid to the first respondent, in our considered view, there was no disobedience or non-compliance of the order of the court to entertain the contempt petition14. In Sushila Raje Holkar v. Anil Kak (Retired) (2008) 14 SCC 392 , the Supreme Court held that whether contempt has been committed or not is not a matter of mechanical application of mind. In a given case, it has to be tested having regard to the subject matter of the proceeding in which it is made and the nexus between the alleged contumacious act. In the Writ Petition No.3874/2016, the High Court only directed TWAD Board and its officials to ensure just and reasonable compensation be paid to the first respondent which has been duly complied with by the Board by paying the compensation fixing the land value at the rate of Rs.200/- per sq. ft. as on 01.04.2012 as per guideline value. In compliance with the order passed by the High Court, when the compensation has been paid to the first respondent, there was no question of disobedience of the order of the court to maintain the contempt petition. Without appreciating that the order of the High Court has been duly complied with, the learned Single Judge erred in entertaining the contempt petition. Apart from entertaining the contempt petition, the learned Single Judge further fell in error in issuing positive direction to the authorities to pay further compensation at the rate of Rs.600/- per sq. ft., which, in our considered view, is arbitrary and unsustainableThough much reliance was placed upon the proceedings of the District Collector dated 30.11.2016, we are constrained to observe that the said proceeding of the District Collector dated 30.11.2016 fixing the land value at the rate of Rs.500/- per sq. ft. as on 30.11.2016 was passed under the fear of contempt of court which, in our view, is liable to be quashed. In any event, when the entry into land was way back in 1990-91, the first respondent cannot claim that compensation be paid to him on the value of the land fixed in the year 2016 as of 30.11.201616. The learned senior counsel appearing for the first respondent placed reliance upon the statement of the learned Additional Advocate General who represented the Board in the Contempt Petition No.2626/2016 who has stated ….that the court should confirm itself to order compensation at the rate of Rs.500/- per sq. ft. This contention does not merit acceptance. Be it noted that when the matter was heard by the learned Single Judge on 13.02.2017, no affidavit has been filed by any responsible officer that the compensation may be paid to the first respondent at the rate of Rs.500/- per sq. ft. Since we are quashing the order of the District Collector dated 30.11.2016, in our considered view, the first respondent cannot fall back upon statement of the learned Additional Advocate General made in the court. The respondent cannot take advantage of such oral concession made by the learned Additional Advocate GeneralApplying the above principles to the present case, it is clear that the Single Judge fell in error in entertaining the contempt petition and further erred in directing the TWAD Board to pay compensation at the rate of Rs.600/- per sq. ft. which works out to more than Rs.4,00,00,000/-. It is public money and having implications on the public exchequer, the public money cannot be allowed to be taken away by an individual by filing contempt petition thereby arm-twisting the authorities. The order passed by the learned Single Judge affirmed by the Division Bench is ex-facie erroneous and liable to be set aside. | 1 | 3,418 | 1,017 | ### Instruction:
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learned Single Judge erred in entertaining the contempt petition. Apart from entertaining the contempt petition, the learned Single Judge further fell in error in issuing positive direction to the authorities to pay further compensation at the rate of Rs.600/- per sq. ft., which, in our considered view, is arbitrary and unsustainable. 15. The learned senior counsel Mr. Ramamoorthy appearing for the Board submitted that when the contempt petition came up for hearing on 25.11.2016, the learned Single Judge issued oral instructions to the TWAD Board and the appellant Board was compelled to take further steps in fixing the higher land value. It is stated that though no orders were passed by the learned Single Judge on 25.11.2016, oral directions were issued by the learned Single Judge. The same is reflected in the proceeding of the District Collector dated 30.11.2016 as seen from the following:- ….Thereafter, the land owner filed the contempt of court petition in No.2626/2016 before the Chennai High Court. When the aforesaid case was on trial, on 25.11.2016, as per the instructions given by the honourable judge, today (30.11.2016) the Superintending Engineer of the TWAD Board and the District Registrar Kanchipuram, in the meeting held with them, it is informed to the land owner as follows….. Though much reliance was placed upon the proceedings of the District Collector dated 30.11.2016, we are constrained to observe that the said proceeding of the District Collector dated 30.11.2016 fixing the land value at the rate of Rs.500/- per sq. ft. as on 30.11.2016 was passed under the fear of contempt of court which, in our view, is liable to be quashed. In any event, when the entry into land was way back in 1990-91, the first respondent cannot claim that compensation be paid to him on the value of the land fixed in the year 2016 as of 30.11.2016. 16. The learned senior counsel appearing for the first respondent placed reliance upon the statement of the learned Additional Advocate General who represented the Board in the Contempt Petition No.2626/2016 who has stated ….that the court should confirm itself to order compensation at the rate of Rs.500/- per sq. ft. This contention does not merit acceptance. Be it noted that when the matter was heard by the learned Single Judge on 13.02.2017, no affidavit has been filed by any responsible officer that the compensation may be paid to the first respondent at the rate of Rs.500/- per sq. ft. Since we are quashing the order of the District Collector dated 30.11.2016, in our considered view, the first respondent cannot fall back upon statement of the learned Additional Advocate General made in the court. The respondent cannot take advantage of such oral concession made by the learned Additional Advocate General. 17. In the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed. Observing that in the contempt jurisdiction, the court cannot travel beyond the four corners of the order which is alleged to have been floated, in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others v. M. George Ravishekaran and others (2014) 3 SCC 373 , speaking for the Bench, Justice Ranjan Gogoi held as under:- 19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self- determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. T arak Nath Ganguly (2002) 5 SCC 352 , V.M. Manohar Prasad v. N. Ratnam Raju (2004) 13 SCC 610, Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami (2008) 5 SCC 339 and Union of India v. Subedar Devassy PV (2006) 1 SCC 613. [underlining added] Applying the above principles to the present case, it is clear that the Single Judge fell in error in entertaining the contempt petition and further erred in directing the TWAD Board to pay compensation at the rate of Rs.600/- per sq. ft. which works out to more than Rs.4,00,00,000/-. It is public money and having implications on the public exchequer, the public money cannot be allowed to be taken away by an individual by filing contempt petition thereby arm-twisting the authorities. The order passed by the learned Single Judge affirmed by the Division Bench is ex-facie erroneous and liable to be set aside.
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12. A party can be proceeded for disobedience of the order of the court only when there is willful disobedience and non- compliance of the order passed by the court. On perusal of the order dated 03.02.2016 passed in Writ Petition No.3874/2016, it is seen that in the said order, court has only directed the authorities to ensure fair and reasonable compensation be sanctioned to the first respondent and be paid at the earliest. The officers quickly acted in order to comply with the direction of the High Court. When the direction was only to consider the case of the first respondent for ensuring fair and reasonable compensation and having regard to the swift action taken by the appellant and other officials, in our view, there was no disobedience of the order of the court, much less wilful disobedience to invoke contempt jurisdiction13. After the State Level Committee remitted the matter to the District Collector, the District Collector conducted a detailed enquiry and took into consideration the prevailing guideline value as on 01.04.2012. After examining the report of the Sub-Registrar, Walajabad and taking into consideration the guideline value, by proceeding dated 23.05.2016 the District Collector fixed the land value at Rs.200/- per sq. ft. which was the guideline value as on 01.04.2012. As pointed out earlier, the total value of the land was arrived at Rs.75,42,800/- and the interest at the rate of 12% totalling Rs.1,11,80,723/- was paid to the first respondent which the first respondent received under protest. In compliance of the order of the High Court, the District Collector passed the order fixing the land value at the rate of Rs.200/- per sq. ft. as on 01.04.2012 (though the land came to be in occupation of TWAD Board way back in 1991). The first respondent has not challenged the said compensation fixed at the rate of Rs.200/- sq. ft. as on 01.04.2012 in the manner known to law. In compliance of the order of the High Court, when the amount has been paid to the first respondent, in our considered view, there was no disobedience or non-compliance of the order of the court to entertain the contempt petition14. In Sushila Raje Holkar v. Anil Kak (Retired) (2008) 14 SCC 392 , the Supreme Court held that whether contempt has been committed or not is not a matter of mechanical application of mind. In a given case, it has to be tested having regard to the subject matter of the proceeding in which it is made and the nexus between the alleged contumacious act. In the Writ Petition No.3874/2016, the High Court only directed TWAD Board and its officials to ensure just and reasonable compensation be paid to the first respondent which has been duly complied with by the Board by paying the compensation fixing the land value at the rate of Rs.200/- per sq. ft. as on 01.04.2012 as per guideline value. In compliance with the order passed by the High Court, when the compensation has been paid to the first respondent, there was no question of disobedience of the order of the court to maintain the contempt petition. Without appreciating that the order of the High Court has been duly complied with, the learned Single Judge erred in entertaining the contempt petition. Apart from entertaining the contempt petition, the learned Single Judge further fell in error in issuing positive direction to the authorities to pay further compensation at the rate of Rs.600/- per sq. ft., which, in our considered view, is arbitrary and unsustainableThough much reliance was placed upon the proceedings of the District Collector dated 30.11.2016, we are constrained to observe that the said proceeding of the District Collector dated 30.11.2016 fixing the land value at the rate of Rs.500/- per sq. ft. as on 30.11.2016 was passed under the fear of contempt of court which, in our view, is liable to be quashed. In any event, when the entry into land was way back in 1990-91, the first respondent cannot claim that compensation be paid to him on the value of the land fixed in the year 2016 as of 30.11.201616. The learned senior counsel appearing for the first respondent placed reliance upon the statement of the learned Additional Advocate General who represented the Board in the Contempt Petition No.2626/2016 who has stated ….that the court should confirm itself to order compensation at the rate of Rs.500/- per sq. ft. This contention does not merit acceptance. Be it noted that when the matter was heard by the learned Single Judge on 13.02.2017, no affidavit has been filed by any responsible officer that the compensation may be paid to the first respondent at the rate of Rs.500/- per sq. ft. Since we are quashing the order of the District Collector dated 30.11.2016, in our considered view, the first respondent cannot fall back upon statement of the learned Additional Advocate General made in the court. The respondent cannot take advantage of such oral concession made by the learned Additional Advocate GeneralApplying the above principles to the present case, it is clear that the Single Judge fell in error in entertaining the contempt petition and further erred in directing the TWAD Board to pay compensation at the rate of Rs.600/- per sq. ft. which works out to more than Rs.4,00,00,000/-. It is public money and having implications on the public exchequer, the public money cannot be allowed to be taken away by an individual by filing contempt petition thereby arm-twisting the authorities. The order passed by the learned Single Judge affirmed by the Division Bench is ex-facie erroneous and liable to be set aside.
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JAGMOHAN SINGH DHILLON ETC Vs. SATWANT SINGH & ORS | be carried forwarding under the 1972 and 1982 un amended rules... 14. The above judgment has attained finality. The learned Single Judge took the view that since the vacancies were vacancies from 1979 upto 1982, the twenty percent reservation as provided under 1972 Rules shall govern. The judgment of Ishwar Singh, thus, only had laid down with regard to percentage of reservation of the vacancies, which was held to be twenty percent in view of the vacancies occurring prior to the enforcement of 1982 Rules. 15. The above proposition cannot be extended to the determination of the seniority. The question of determination of seniority comes only after a person enters into service and becomes a member of service. Under 1972 Rules, it cannot be held that the fact that vacancies were in existent prior to enforcement of 1982 Rules, and appointment of a person subsequent to enforcement of 1982 Rules, he shall be entitled to the benefit of Rule 4, i.e., to add his military services for the purposes of his seniority, especially when the benefit which was available for the purposes of seniority under Rule 4 of 1972 Rules is no longer continued under 1982 Rules, as noted above. 16. We have noticed that 1982 Rules specifically repealed the 1972 Rules, thus, the Rule 4 of 1972 Rules which provided for benefit of seniority of Army service was no longer entitled to be counted for seniority for personnel who was appointed after enforcement of 1982 Rules. The judgment of Ishwar Singh of Punjab and Haryana High Court which only determined the percentage of reserved vacancies which were to be reserved for Army personnel could not be held to be relevant regarding determination of seniority in the facts of the present case. 17. We may notice the judgment of this Court in R.K. Barwal and others versus State of Himachal Pradesh and others, (2017) 16 SCC 803. This Court had occasion to consider in the above case Demobilized Armed Forces Personnel (Reservation of Vacancies in the H.P. State Non-Technical Services) Rules, 1972, where Rule 5 provided for counting of approved military service for purpose of determining seniority on joining civilian post. The Court held that persons joining Armed Forces during emergency period vis-à-vis persons joining Armed Forces during peacetime, there is a reasonable classification and benefit which was available for adding seniority to persons joining Armed Forces during emergency cannot be extended to persons joining Armed Forces during peacetime. 18. This Court held that normal rule of fixing of seniority is with reference to the date of entry into the service and there has to be very weighty reason for departure from this rule. Following observations were made in paragraph 27: - 27... After all, if the benefit of armed force services rendered is extended to each and every ex-serviceman for the purpose of seniority, it may result in far reaching implications. Examples in this behalf are given by the private respondents, as noted above. This Court cannot shy away from the normal rule of fixing the seniority, as enunciated in the cases of Direct Recruitment Class II Engineering Officers Association as well as Aghore Nath Dey, i.e. the seniority of an officer in service is determined with reference to the date of his entry in the service, which is consistent with the requirement of Articles 14 and 16 of the Constitution. There have to be very weighty reasons for departure from this rule. Otherwise, it may disturb the equilibrium by making many direct recruits junior to such ex-servicemen even when such direct recruits joined the services in civil posts much earlier than the ex- servicemen. Thus, an exceptional category carved out for giving such a benefit only to those who were commissioned in Armed Forces during war time cannot be extended to each and every ex-serviceman merely because he has served in Armed Forces. 19. Under 1982 Rules, there is no indication that the benefit which was available to Armed Forces Personnel under Rule 4 of 1972 Rules are continued or any right has been accrued on the appellant under 1972 Rules which he is entitled to avail regarding seniority. 20. Learned Single Judge in its judgment dated 31.07.2007 has heavily relied on Ishwar Singhs case holding that with regard to reservation of vacancies, i.e., 1972 Rules have been made applicable, the 1972 Rules also need to be applied for determination of seniority. The percentage of vacancies which are reserved for Armed Forces Personnel were held to be calculated as per 1972 Rules since the vacancies have occurred prior to 1982 Rules. The above judgment of learned Single Judge in Ishwar Singh cannot be relied for determination of seniority which is entirely a different concept and determination of seniority is governed by seniority rules enforced at the time of appointment of the personnel. The view of learned Single Judge that the appellant shall be deemed to be appointed under 1972 Rules cannot be approved. 21. The Division Bench has rightly taken the view that saving clause under Rule 9(3) does not extend any benefit to the appellant since there is nothing to show that any right of weightage for army services for seniority has already accrued before he joined services. Saving clause in Rule 9(3) cannot be availed by the appellant. We fully endorse the above view of the Division Bench taken in the impugned order. 22. Another judgment relied by the appellant is the judgment of Punjab and Haryana High Court in State of Punjab and other versus Dr. Balbir Bharadwaj, LPA No.168 of 2004, decided on 29.01.2007 has rightly been distinguished by the Division Bench in the impugned judgment. 23. We, thus, hold that the appellant was not entitled to claim benefit of military service for purpose of seniority for appointment to Punjab Civil Service(Executive Branch) since the benefit of Rule 4(1) of 1972 Rules was not continued in 1982 Rules. His seniority was to be governed by statutory rules applicable after the enforcement of 1982 Rules. | 0[ds]12. From the facts brought on the record, it is clear that the advertisement against which the appellant was appointed was issued on 01.05.1982, i.e., after the enforcement of 1982 Rules. The appellant was appointed in pursuance of the advertisement by appointment order dated 18.03.1986. Although 1972 Rules have been repealed but in the 1982 Rules, as per Rule 9(3), nothing in 1982 rules was to be construed as depriving any person of any right which had accrued under the rules in force immediately before the commencement of the Rules 1982. Before enforcement of 1982 Rules admittedly, 1972 Rules were enforced.Ishwar Singh and others versus State of Punjab.In the above case, one of the questions was as to whether for the vacancies which were advertised under 1982 Rules, the reservation for the Armed Forces Personnel shall be twenty percent or fifteen percent and whether the benefit of ex-servicemen as contained in 1982 Rules shall be applicable with respect to vacancies which arose prior to enforcement of 1982 Rules. In paragraph 50 of the judgment, following was observed: -50. Both the aforesaid decisions fully support the petitioners for the contention that the reservation quota in the vacancies, which occurred before 12.02.1982 would be 20 percent for the Ex. Servicemen and from 12.02.1982 it would be 15 percent. The carry forward rule under the 1972 rules as well as the 1982 rules till before amendment of 1984 was far a period of four years and it was amended by the 1984 amendment, which came into effect from 30th April, 1984. Therefore, when the advertisements was made on 01.05.1982 for recruitment, the left over vacancies from 1979 upto 1982 had to be taken into consideration and similarly the vacancies which occurred thereafter would also be taken not of for providing the relevant quota of 10 percent or 15 percent, as the case may be. As noted above, on the basis of the posts would be made available to the category of Ex. Servicemen. The vacancies which occurred on or after 30th April, 1984 would be carried forward on the basis of the 1984 amended rules. Whereas earlier unfilled vacancies would be carried forwarding under the 1972 and 1982 un amended rules...14. The above judgment has attained finality. The learned Single Judge took the view that since the vacancies were vacancies from 1979 upto 1982, the twenty percent reservation as provided under 1972 Rules shall govern. The judgment of Ishwar Singh, thus, only had laid down with regard to percentage of reservation of the vacancies, which was held to be twenty percent in view of the vacancies occurring prior to the enforcement of 1982 Rules.15. The above proposition cannot be extended to the determination of the seniority. The question of determination of seniority comes only after a person enters into service and becomes a member of service. Under 1972 Rules, it cannot be held that the fact that vacancies were in existent prior to enforcement of 1982 Rules, and appointment of a person subsequent to enforcement of 1982 Rules, he shall be entitled to the benefit of Rule 4, i.e., to add his military services for the purposes of his seniority, especially when the benefit which was available for the purposes of seniority under Rule 4 of 1972 Rules is no longer continued under 1982 Rules, as noted above.16. We have noticed that 1982 Rules specifically repealed the 1972 Rules, thus, the Rule 4 of 1972 Rules which provided for benefit of seniority of Army service was no longer entitled to be counted for seniority for personnel who was appointed after enforcement of 1982 Rules. The judgment of Ishwar Singh of Punjab and Haryana High Court which only determined the percentage of reserved vacancies which were to be reserved for Army personnel could not be held to be relevant regarding determination of seniority in the facts of the present case.17. We may notice the judgment of this Court in R.K. Barwal and others versus State of Himachal Pradesh and others, (2017) 16 SCC 803. This Court had occasion to consider in the above case Demobilized Armed Forces Personnel (Reservation of Vacancies in the H.P. State Non-Technical Services) Rules, 1972, where Rule 5 provided for counting of approved military service for purpose of determining seniority on joining civilian post. The Court held that persons joining Armed Forces during emergency period vis-à-vis persons joining Armed Forces during peacetime, there is a reasonable classification and benefit which was available for adding seniority to persons joining Armed Forces during emergency cannot be extended to persons joining Armed Forces during peacetime.18. This Court held that normal rule of fixing of seniority is with reference to the date of entry into the service and there has to be very weighty reason for departure from this rule. Following observations were made in paragraph 27: -27... After all, if the benefit of armed force services rendered is extended to each and every ex-serviceman for the purpose of seniority, it may result in far reaching implications. Examples in this behalf are given by the private respondents, as noted above. This Court cannot shy away from the normal rule of fixing the seniority, as enunciated in the cases of Direct Recruitment Class II Engineering Officers Association as well as Aghore Nath Dey, i.e. the seniority of an officer in service is determined with reference to the date of his entry in the service, which is consistent with the requirement of Articles 14 and 16 of the Constitution. There have to be very weighty reasons for departure from this rule. Otherwise, it may disturb the equilibrium by making many direct recruits junior to such ex-servicemen even when such direct recruits joined the services in civil posts much earlier than the ex- servicemen. Thus, an exceptional category carved out for giving such a benefit only to those who were commissioned in Armed Forces during war time cannot be extended to each and every ex-serviceman merely because he has served in Armed Forces.19. Under 1982 Rules, there is no indication that the benefit which was available to Armed Forces Personnel under Rule 4 of 1972 Rules are continued or any right has been accrued on the appellant under 1972 Rules which he is entitled to avail regarding seniority.20. Learned Single Judge in its judgment dated 31.07.2007 has heavily relied on Ishwar Singhs case holding that with regard to reservation of vacancies, i.e., 1972 Rules have been made applicable, the 1972 Rules also need to be applied for determination of seniority. The percentage of vacancies which are reserved for Armed Forces Personnel were held to be calculated as per 1972 Rules since the vacancies have occurred prior to 1982 Rules. The above judgment of learned Single Judge in Ishwar Singh cannot be relied for determination of seniority which is entirely a different concept and determination of seniority is governed by seniority rules enforced at the time of appointment of the personnel. The view of learned Single Judge that the appellant shall be deemed to be appointed under 1972 Rules cannot be approved.21. The Division Bench has rightly taken the view that saving clause under Rule 9(3) does not extend any benefit to the appellant since there is nothing to show that any right of weightage for army services for seniority has already accrued before he joined services. Saving clause in Rule 9(3) cannot be availed by the appellant. We fully endorse the above view of the Division Bench taken in the impugned order.22. Another judgment relied by the appellant is the judgment of Punjab and Haryana High Court in State of Punjab and other versus Dr. Balbir Bharadwaj, LPA No.168 of 2004, decided on 29.01.2007 has rightly been distinguished by the Division Bench in the impugned judgment.23. We, thus, hold that the appellant was not entitled to claim benefit of military service for purpose of seniority for appointment to Punjab Civil Service(Executive Branch) since the benefit of Rule 4(1) of 1972 Rules was not continued in 1982 Rules. His seniority was to be governed by statutory rules applicable after the enforcement of 1982 Rules. | 0 | 3,283 | 1,477 | ### 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:
be carried forwarding under the 1972 and 1982 un amended rules... 14. The above judgment has attained finality. The learned Single Judge took the view that since the vacancies were vacancies from 1979 upto 1982, the twenty percent reservation as provided under 1972 Rules shall govern. The judgment of Ishwar Singh, thus, only had laid down with regard to percentage of reservation of the vacancies, which was held to be twenty percent in view of the vacancies occurring prior to the enforcement of 1982 Rules. 15. The above proposition cannot be extended to the determination of the seniority. The question of determination of seniority comes only after a person enters into service and becomes a member of service. Under 1972 Rules, it cannot be held that the fact that vacancies were in existent prior to enforcement of 1982 Rules, and appointment of a person subsequent to enforcement of 1982 Rules, he shall be entitled to the benefit of Rule 4, i.e., to add his military services for the purposes of his seniority, especially when the benefit which was available for the purposes of seniority under Rule 4 of 1972 Rules is no longer continued under 1982 Rules, as noted above. 16. We have noticed that 1982 Rules specifically repealed the 1972 Rules, thus, the Rule 4 of 1972 Rules which provided for benefit of seniority of Army service was no longer entitled to be counted for seniority for personnel who was appointed after enforcement of 1982 Rules. The judgment of Ishwar Singh of Punjab and Haryana High Court which only determined the percentage of reserved vacancies which were to be reserved for Army personnel could not be held to be relevant regarding determination of seniority in the facts of the present case. 17. We may notice the judgment of this Court in R.K. Barwal and others versus State of Himachal Pradesh and others, (2017) 16 SCC 803. This Court had occasion to consider in the above case Demobilized Armed Forces Personnel (Reservation of Vacancies in the H.P. State Non-Technical Services) Rules, 1972, where Rule 5 provided for counting of approved military service for purpose of determining seniority on joining civilian post. The Court held that persons joining Armed Forces during emergency period vis-à-vis persons joining Armed Forces during peacetime, there is a reasonable classification and benefit which was available for adding seniority to persons joining Armed Forces during emergency cannot be extended to persons joining Armed Forces during peacetime. 18. This Court held that normal rule of fixing of seniority is with reference to the date of entry into the service and there has to be very weighty reason for departure from this rule. Following observations were made in paragraph 27: - 27... After all, if the benefit of armed force services rendered is extended to each and every ex-serviceman for the purpose of seniority, it may result in far reaching implications. Examples in this behalf are given by the private respondents, as noted above. This Court cannot shy away from the normal rule of fixing the seniority, as enunciated in the cases of Direct Recruitment Class II Engineering Officers Association as well as Aghore Nath Dey, i.e. the seniority of an officer in service is determined with reference to the date of his entry in the service, which is consistent with the requirement of Articles 14 and 16 of the Constitution. There have to be very weighty reasons for departure from this rule. Otherwise, it may disturb the equilibrium by making many direct recruits junior to such ex-servicemen even when such direct recruits joined the services in civil posts much earlier than the ex- servicemen. Thus, an exceptional category carved out for giving such a benefit only to those who were commissioned in Armed Forces during war time cannot be extended to each and every ex-serviceman merely because he has served in Armed Forces. 19. Under 1982 Rules, there is no indication that the benefit which was available to Armed Forces Personnel under Rule 4 of 1972 Rules are continued or any right has been accrued on the appellant under 1972 Rules which he is entitled to avail regarding seniority. 20. Learned Single Judge in its judgment dated 31.07.2007 has heavily relied on Ishwar Singhs case holding that with regard to reservation of vacancies, i.e., 1972 Rules have been made applicable, the 1972 Rules also need to be applied for determination of seniority. The percentage of vacancies which are reserved for Armed Forces Personnel were held to be calculated as per 1972 Rules since the vacancies have occurred prior to 1982 Rules. The above judgment of learned Single Judge in Ishwar Singh cannot be relied for determination of seniority which is entirely a different concept and determination of seniority is governed by seniority rules enforced at the time of appointment of the personnel. The view of learned Single Judge that the appellant shall be deemed to be appointed under 1972 Rules cannot be approved. 21. The Division Bench has rightly taken the view that saving clause under Rule 9(3) does not extend any benefit to the appellant since there is nothing to show that any right of weightage for army services for seniority has already accrued before he joined services. Saving clause in Rule 9(3) cannot be availed by the appellant. We fully endorse the above view of the Division Bench taken in the impugned order. 22. Another judgment relied by the appellant is the judgment of Punjab and Haryana High Court in State of Punjab and other versus Dr. Balbir Bharadwaj, LPA No.168 of 2004, decided on 29.01.2007 has rightly been distinguished by the Division Bench in the impugned judgment. 23. We, thus, hold that the appellant was not entitled to claim benefit of military service for purpose of seniority for appointment to Punjab Civil Service(Executive Branch) since the benefit of Rule 4(1) of 1972 Rules was not continued in 1982 Rules. His seniority was to be governed by statutory rules applicable after the enforcement of 1982 Rules.
### Response:
0
### Explanation:
the 1984 amended rules. Whereas earlier unfilled vacancies would be carried forwarding under the 1972 and 1982 un amended rules...14. The above judgment has attained finality. The learned Single Judge took the view that since the vacancies were vacancies from 1979 upto 1982, the twenty percent reservation as provided under 1972 Rules shall govern. The judgment of Ishwar Singh, thus, only had laid down with regard to percentage of reservation of the vacancies, which was held to be twenty percent in view of the vacancies occurring prior to the enforcement of 1982 Rules.15. The above proposition cannot be extended to the determination of the seniority. The question of determination of seniority comes only after a person enters into service and becomes a member of service. Under 1972 Rules, it cannot be held that the fact that vacancies were in existent prior to enforcement of 1982 Rules, and appointment of a person subsequent to enforcement of 1982 Rules, he shall be entitled to the benefit of Rule 4, i.e., to add his military services for the purposes of his seniority, especially when the benefit which was available for the purposes of seniority under Rule 4 of 1972 Rules is no longer continued under 1982 Rules, as noted above.16. We have noticed that 1982 Rules specifically repealed the 1972 Rules, thus, the Rule 4 of 1972 Rules which provided for benefit of seniority of Army service was no longer entitled to be counted for seniority for personnel who was appointed after enforcement of 1982 Rules. The judgment of Ishwar Singh of Punjab and Haryana High Court which only determined the percentage of reserved vacancies which were to be reserved for Army personnel could not be held to be relevant regarding determination of seniority in the facts of the present case.17. We may notice the judgment of this Court in R.K. Barwal and others versus State of Himachal Pradesh and others, (2017) 16 SCC 803. This Court had occasion to consider in the above case Demobilized Armed Forces Personnel (Reservation of Vacancies in the H.P. State Non-Technical Services) Rules, 1972, where Rule 5 provided for counting of approved military service for purpose of determining seniority on joining civilian post. The Court held that persons joining Armed Forces during emergency period vis-à-vis persons joining Armed Forces during peacetime, there is a reasonable classification and benefit which was available for adding seniority to persons joining Armed Forces during emergency cannot be extended to persons joining Armed Forces during peacetime.18. This Court held that normal rule of fixing of seniority is with reference to the date of entry into the service and there has to be very weighty reason for departure from this rule. Following observations were made in paragraph 27: -27... After all, if the benefit of armed force services rendered is extended to each and every ex-serviceman for the purpose of seniority, it may result in far reaching implications. Examples in this behalf are given by the private respondents, as noted above. This Court cannot shy away from the normal rule of fixing the seniority, as enunciated in the cases of Direct Recruitment Class II Engineering Officers Association as well as Aghore Nath Dey, i.e. the seniority of an officer in service is determined with reference to the date of his entry in the service, which is consistent with the requirement of Articles 14 and 16 of the Constitution. There have to be very weighty reasons for departure from this rule. Otherwise, it may disturb the equilibrium by making many direct recruits junior to such ex-servicemen even when such direct recruits joined the services in civil posts much earlier than the ex- servicemen. Thus, an exceptional category carved out for giving such a benefit only to those who were commissioned in Armed Forces during war time cannot be extended to each and every ex-serviceman merely because he has served in Armed Forces.19. Under 1982 Rules, there is no indication that the benefit which was available to Armed Forces Personnel under Rule 4 of 1972 Rules are continued or any right has been accrued on the appellant under 1972 Rules which he is entitled to avail regarding seniority.20. Learned Single Judge in its judgment dated 31.07.2007 has heavily relied on Ishwar Singhs case holding that with regard to reservation of vacancies, i.e., 1972 Rules have been made applicable, the 1972 Rules also need to be applied for determination of seniority. The percentage of vacancies which are reserved for Armed Forces Personnel were held to be calculated as per 1972 Rules since the vacancies have occurred prior to 1982 Rules. The above judgment of learned Single Judge in Ishwar Singh cannot be relied for determination of seniority which is entirely a different concept and determination of seniority is governed by seniority rules enforced at the time of appointment of the personnel. The view of learned Single Judge that the appellant shall be deemed to be appointed under 1972 Rules cannot be approved.21. The Division Bench has rightly taken the view that saving clause under Rule 9(3) does not extend any benefit to the appellant since there is nothing to show that any right of weightage for army services for seniority has already accrued before he joined services. Saving clause in Rule 9(3) cannot be availed by the appellant. We fully endorse the above view of the Division Bench taken in the impugned order.22. Another judgment relied by the appellant is the judgment of Punjab and Haryana High Court in State of Punjab and other versus Dr. Balbir Bharadwaj, LPA No.168 of 2004, decided on 29.01.2007 has rightly been distinguished by the Division Bench in the impugned judgment.23. We, thus, hold that the appellant was not entitled to claim benefit of military service for purpose of seniority for appointment to Punjab Civil Service(Executive Branch) since the benefit of Rule 4(1) of 1972 Rules was not continued in 1982 Rules. His seniority was to be governed by statutory rules applicable after the enforcement of 1982 Rules.
|
Kaloji Talusappa Gangavathi Vs. Khyanagouda & Others | Shah, J. 1. Against the decree dismissing his suit for recovery of the amount due under a mortgage and a promissory note executed by the defendants, the plaintiff has appealed to this Court with special leave. 2. The plaintiff carries on the business of a money-lender at Raichur which was formerly in the State of Hyderabad, but which is, since the States Reorganization Act, 1956, within the State of Mysore. The plaintiff instituted a suit in the Court of the District Judge, Raichur, against the defendants for a decree for Rs. 17,790/- claiming that the defendants were indebted to the plaintiff for Rs. 6,000/- and interest under a deed of mortage executed by them on June 20, 1949; Rs. 3,000/- and interest under a promissory note dated September 22, 1956; and certain sums of money under other transactions. 3. The defendants raised several contentions one of which alone is relevant. They contended that at the date of the transactions the plaintiff had not obtained a licence under the Hyderabad Money Lenders Act 5 of 1349 Fasli, and on that account he was not entitled to sue for the amounts due under the mortgage deed and the promissory note. 4. The Trial Court held that the plaintiffs suit for a decree for the amounts due under the mortgage deed and the promissory note was not maintainable. The decree of the Trial Court was confirmed in appeal to the Mysore High Court. The High Court of Mysore confirmed the decree of the Trial Court. 5. The plaintiff was at the date of the transactions in dispute a money-lender as defined in Section 2 (7) of the Hyderabad Money Lenders Act 5 of 1349 Fasli. The relevant provisions of the Act are as follows : By Section 2 (7) a "money-lender" means "a person including a pawn-broker, who, within the meaning of this Act, only advances loan in the ordinary course of his business or does so along with other business, x x x x" By Section 3, insofar as it was relevant, it is provided : "(1) x x x x x (2) Every money-lender , in order to get his name registered, shall present an application in writing in the prescribed form to the competent officer and the said officer shall on such application being presented, register the applicants name and grant a licence in the prescribed form and within prescribed period : x x x x x (5) (a) No money-lender shall carry on in any district the business of money-lending without obtaining a licence provided for in sub-section (2). (b) if any person contravenes the provisions of clause (a), he shall be punished with rigorous imprisonment for a term which may extend to six months or with fine or with both. x x x" Section 9 provides, insofar as it is material : "Notwithstanding anything contained in any law for the time being in force, in every suit relating to a loan - (1) x x x x x (2) if it is proved that the plaintiff is a money-lender as defined in sub-section (7) of Section 2, but does not hold a licence granted under Section 3, the Court shall dismiss his suit; x x x x x" The plaintiff had not obtained a licence when he advanced money to the defendants on the transactions of mortgage and promissory note. By virtue of sub-s. (5) (a) of S. 3 the plaintiff was prohibited from carrying on in any district the business of money-lending without obtaining a licence provided for in sub-s (2). Section 9 (2) expressly provides that a suit filed by a money-lender who did not hold a licence granted under S. 3 shall be dismissed. In the present case the plaintiff did not hold any licence. There is no dispute that the amount advanced under the transactions of the mortgage and the promissory note constituted loans. Since the plaintiff was at the date of transactions carrying on business as a money-lender without a licence, the Court was bound to dismiss his suit for recovery of the amounts advanced in the course of his business as a money-lender.6. It was urged by an application filed in this Court (C. M. P. No. 1744 of 1970) that the plaintiff should be allowed to raise in this Court as contention that the provisions of S. 9 (2) of the Hyderabad Money Lenders Act 5 of 1349 Fasli were unconstitutional and contravened the fundamental rights guaranteed under Arts. 19 (1) (f) and (g) and 31 of the Constitution. In this case, no question of any right to acquire, hold or dispose of property arises, nor of any claim of deprivation of property. In the circumstances the plaintiff cannot obviously claim the guarantee of Arts. 19 (1) (f) and 31.It is true that the Act places a restriction upon a money-lender in carrying on his business in money-lending. But the question whether the restrictions imposed by the Act are not reasonable was never raised in the Court of First Instance and the High Court, and we would not at this late stage be justified in allowing the plaintiff to raise the question which requires a fresh pleading on questions of fact. In order to curb malpractices of the money-lender in the course of his business and to protect unwary debtors, the Legislature has imposed stringent restrictions upon him in requiring him to obtain a licence, maintain and furnish accounts and carry out other obligations. Practically every stage in India has enacted statutes imposing restrictions upon money-lenders. Whether the conditions in the State of Hyderabad when the Act was enacted were so different that it was not necessary to impose restrictions upon the money-lenders can only be decided on a proper plea and on a full consideration thereof after hearing the State. | 0[ds]The plaintiff had not obtained a licence when he advanced money to the defendants on the transactions of mortgage and promissory note. By virtue of. (5) (a) of S. 3 the plaintiff was prohibited from carrying on in any district the business ofg without obtaining a licence provided for ins (2). Section 9 (2) expressly provides that a suit filed by ar who did not hold a licence granted under S. 3 shall be dismissed. In the present case the plaintiff did not hold any licence. There is no dispute that the amount advanced under the transactions of the mortgage and the promissory note constituted loans. Since the plaintiff was at the date of transactions carrying on business as a6. It was urged by an application filed in this Court (C. M. P. No. 1744 of 1970) that the plaintiff should be allowed to raise in this Court as contention that the provisions of S. 9 (2) of the Hyderabad Money Lenders Act 5 of 1349 Fasli were unconstitutional and contravened the fundamental rights guaranteed under Arts. 19 (1) (f) and (g) and 31 of the Constitution.In this case, no question of any right to acquire, hold or dispose of property arises, nor of any claim of deprivation of property. In the circumstances the plaintiff cannot obviously claim the guarantee of Arts. 19 (1) (f) and 31.It is true that the Act places a restriction upon ar in carrying on his business in. But the question whether the restrictions imposed by the Act are not reasonable was never raised in the Court of First Instance and the High Court, and we would not at this late stage be justified in allowing the plaintiff to raise the question which requires a fresh pleading on questions of fact. In order to curb malpractices of ther in the course of his business and to protect unwary debtors, the Legislature has imposed stringent restrictions upon him in requiring him to obtain a licence, maintain and furnish accounts and carry out other obligations. Practically every stage in India has enacted statutes imposing restrictions upon. Whether the conditions in the State of Hyderabad when the Act was enacted were so different that it was not necessary to impose restrictions upon thes can only be decided on a proper plea and on a full consideration thereof after hearing the State. | 0 | 1,095 | 442 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
Shah, J. 1. Against the decree dismissing his suit for recovery of the amount due under a mortgage and a promissory note executed by the defendants, the plaintiff has appealed to this Court with special leave. 2. The plaintiff carries on the business of a money-lender at Raichur which was formerly in the State of Hyderabad, but which is, since the States Reorganization Act, 1956, within the State of Mysore. The plaintiff instituted a suit in the Court of the District Judge, Raichur, against the defendants for a decree for Rs. 17,790/- claiming that the defendants were indebted to the plaintiff for Rs. 6,000/- and interest under a deed of mortage executed by them on June 20, 1949; Rs. 3,000/- and interest under a promissory note dated September 22, 1956; and certain sums of money under other transactions. 3. The defendants raised several contentions one of which alone is relevant. They contended that at the date of the transactions the plaintiff had not obtained a licence under the Hyderabad Money Lenders Act 5 of 1349 Fasli, and on that account he was not entitled to sue for the amounts due under the mortgage deed and the promissory note. 4. The Trial Court held that the plaintiffs suit for a decree for the amounts due under the mortgage deed and the promissory note was not maintainable. The decree of the Trial Court was confirmed in appeal to the Mysore High Court. The High Court of Mysore confirmed the decree of the Trial Court. 5. The plaintiff was at the date of the transactions in dispute a money-lender as defined in Section 2 (7) of the Hyderabad Money Lenders Act 5 of 1349 Fasli. The relevant provisions of the Act are as follows : By Section 2 (7) a "money-lender" means "a person including a pawn-broker, who, within the meaning of this Act, only advances loan in the ordinary course of his business or does so along with other business, x x x x" By Section 3, insofar as it was relevant, it is provided : "(1) x x x x x (2) Every money-lender , in order to get his name registered, shall present an application in writing in the prescribed form to the competent officer and the said officer shall on such application being presented, register the applicants name and grant a licence in the prescribed form and within prescribed period : x x x x x (5) (a) No money-lender shall carry on in any district the business of money-lending without obtaining a licence provided for in sub-section (2). (b) if any person contravenes the provisions of clause (a), he shall be punished with rigorous imprisonment for a term which may extend to six months or with fine or with both. x x x" Section 9 provides, insofar as it is material : "Notwithstanding anything contained in any law for the time being in force, in every suit relating to a loan - (1) x x x x x (2) if it is proved that the plaintiff is a money-lender as defined in sub-section (7) of Section 2, but does not hold a licence granted under Section 3, the Court shall dismiss his suit; x x x x x" The plaintiff had not obtained a licence when he advanced money to the defendants on the transactions of mortgage and promissory note. By virtue of sub-s. (5) (a) of S. 3 the plaintiff was prohibited from carrying on in any district the business of money-lending without obtaining a licence provided for in sub-s (2). Section 9 (2) expressly provides that a suit filed by a money-lender who did not hold a licence granted under S. 3 shall be dismissed. In the present case the plaintiff did not hold any licence. There is no dispute that the amount advanced under the transactions of the mortgage and the promissory note constituted loans. Since the plaintiff was at the date of transactions carrying on business as a money-lender without a licence, the Court was bound to dismiss his suit for recovery of the amounts advanced in the course of his business as a money-lender.6. It was urged by an application filed in this Court (C. M. P. No. 1744 of 1970) that the plaintiff should be allowed to raise in this Court as contention that the provisions of S. 9 (2) of the Hyderabad Money Lenders Act 5 of 1349 Fasli were unconstitutional and contravened the fundamental rights guaranteed under Arts. 19 (1) (f) and (g) and 31 of the Constitution. In this case, no question of any right to acquire, hold or dispose of property arises, nor of any claim of deprivation of property. In the circumstances the plaintiff cannot obviously claim the guarantee of Arts. 19 (1) (f) and 31.It is true that the Act places a restriction upon a money-lender in carrying on his business in money-lending. But the question whether the restrictions imposed by the Act are not reasonable was never raised in the Court of First Instance and the High Court, and we would not at this late stage be justified in allowing the plaintiff to raise the question which requires a fresh pleading on questions of fact. In order to curb malpractices of the money-lender in the course of his business and to protect unwary debtors, the Legislature has imposed stringent restrictions upon him in requiring him to obtain a licence, maintain and furnish accounts and carry out other obligations. Practically every stage in India has enacted statutes imposing restrictions upon money-lenders. Whether the conditions in the State of Hyderabad when the Act was enacted were so different that it was not necessary to impose restrictions upon the money-lenders can only be decided on a proper plea and on a full consideration thereof after hearing the State.
### Response:
0
### Explanation:
The plaintiff had not obtained a licence when he advanced money to the defendants on the transactions of mortgage and promissory note. By virtue of. (5) (a) of S. 3 the plaintiff was prohibited from carrying on in any district the business ofg without obtaining a licence provided for ins (2). Section 9 (2) expressly provides that a suit filed by ar who did not hold a licence granted under S. 3 shall be dismissed. In the present case the plaintiff did not hold any licence. There is no dispute that the amount advanced under the transactions of the mortgage and the promissory note constituted loans. Since the plaintiff was at the date of transactions carrying on business as a6. It was urged by an application filed in this Court (C. M. P. No. 1744 of 1970) that the plaintiff should be allowed to raise in this Court as contention that the provisions of S. 9 (2) of the Hyderabad Money Lenders Act 5 of 1349 Fasli were unconstitutional and contravened the fundamental rights guaranteed under Arts. 19 (1) (f) and (g) and 31 of the Constitution.In this case, no question of any right to acquire, hold or dispose of property arises, nor of any claim of deprivation of property. In the circumstances the plaintiff cannot obviously claim the guarantee of Arts. 19 (1) (f) and 31.It is true that the Act places a restriction upon ar in carrying on his business in. But the question whether the restrictions imposed by the Act are not reasonable was never raised in the Court of First Instance and the High Court, and we would not at this late stage be justified in allowing the plaintiff to raise the question which requires a fresh pleading on questions of fact. In order to curb malpractices of ther in the course of his business and to protect unwary debtors, the Legislature has imposed stringent restrictions upon him in requiring him to obtain a licence, maintain and furnish accounts and carry out other obligations. Practically every stage in India has enacted statutes imposing restrictions upon. Whether the conditions in the State of Hyderabad when the Act was enacted were so different that it was not necessary to impose restrictions upon thes can only be decided on a proper plea and on a full consideration thereof after hearing the State.
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John Tinson and Co. Pvt. Ltd and others Vs. Mrs. Surjeet Malhan and Another | completion of the transaction to put on rails the company which was running in losses. It would appear that as per the agreement, subsequent transactions were to be completed and in furtherance thereof, it appears that the shares, admittedly, were entrusted to Mr. Bhagat with a blank transfer form. Thereafter, the disputes arose between them. In consequence, the suits came to be laid by the respondents against the appellants. 5. The principal contention raised by Shri P. N. Lekhi, learned senior counsel for the Appellant, is that Mrs. Malhan had admitted in her evidence that her husband had delivered her shares to Bhagat and that she never objected to the transfer and that, therefore, there was an implied consent for the transfer of her shares in favour of Bhagat. Equally, it is contended that when B. K. Malhan had transferred the shares, though they were not registered with the previous consent of the Board of Directors and they were not duly registered in the register maintained by the Registrar in that behalf, there was a complete transaction; the Division Bench, therefore, is not right in reversing the judgment of the single Judge. We find no force in the contentions. 6. There should be consensus ad idem for a concluded contract and it is seen that Section 25(1) of the Contract Act contemplates that when a transfer is without consideration, it is a void contract. It is an admitted position that there is no concluded contract between Smt. Surjeet and Bhagat. The acquiescence did not amount to consent unless Smt. Surjeet Malhan expressly authorised her husband to transfer her shares. The transfer as contemplated in this case is only for a sum of Re. 1/-. As a consequence, in the eye of law, there is no consideration and, therefore, the transfer agreement is void. The question then is : whether the wife had consented to the transfer ? It is an admitted position that she had not given authority by any letter in writing otherwise to her husband to transfer her shares in favour of Mr. Bhagat. Shri Lekhi sought to rely upon a judgment of this Court in Vasudev Ramchandra Shelat v. Pranlal Jayanand Thakar, 1974(2) SCC 323, in which the Privy Council judgment rendered in M.P. Barucha v. W. Sarabhai and Co., 53 Ind App 92, was approved of. He contended that once the shares with blank transfer forms were entrusted, the contract is complete and, therefore, there is a concluded contract between Bhagat and the respondents. We find no force in the contention. The transaction was between the broker and the purchaser. After the broker purchased the shares on behalf of the company with blank transfer forms, the shares were entrusted. It was, therefore, concluded that the moment the shares were entrusted, being movable property, the contract was complete and, therefore, it was a valid transfer. In this case, there was no direct transaction between Mrs. Surjeet Malhan and Mr. Bhagat. It is not even the case of the appellant that Mr. Malhan had been authorised to entrust those shares and blank transfer forms to Bhagat. Under these circumstances, without any specific authority by the owner of the shares, i.e., Mrs. Surjeet Malhan in favour of third party, including her husband, he gets no right to transfer her shares; nor Bhagat gets and right and title in the shares held by Mrs. Malhan. Even the judgment cited by Shri Lekhi in Balkrishna Gupta v. Swadeshi Polytex Ltd., 1985(2) SCC 167, does not help the appellants. In that case the question was whether the appellant was a shareholder. This Court relying upon the concept of ownership of right discussed in Dais on Jurisprudence held that an owner may be divested of his claims etc. arising from the right owned to such extent that he may be left with no immediate practical benefit. He remains the owner of nonetheless because his interest will outlast that of other persons in the thing owned. The owner possesses that right which ultimately enables him to enjoy all rights in the thing owned by attracting towards himself those rights in the thing owned which for the time being belong to others, by getting rid of the corresponding burdens. In that case, similar to transfer of shares without being registered in the company, it was held that he was holder of the shares. The ratio therein also has no application to the facts in this case. Accordingly, we hold that the transfer of shares held by Mrs. Malhan in favour of the appellants is invalid in law. 7. The next question is : whether the transfer of the shares held by Mr. B. K. Malhan is valid in law ? In that behalf clause (8) of the Articles of Association is relevant. It is now well settled legal position that Article of Association of a private company is a contract between the parties. Clause (8) reads that No transfer of any share in the capital of the company shall be made or registered without the previous sanction of the Directors. It is an admitted position that no previous sanction has been obtained from the Directors for transfer of the shares held by Mr. Malhan. Shri Lekhi contends that Mr. Malhan being the only Director, since his father had already resigned and he had entrusted the shares to the appellant. Bhagat, there is a transfer in the eye of law. We are unable to agree with the learned counsel. The concept of previous sanction of the Directors connotes that there should be a written resolution accepting the transfer from Mr. Malhan in favour of Bhagat and such previous sanction should be preceded by handing over of the shares. In this case, such an action was not done and, therefore, even the transfer of the shares held by Mr. Malhan in favour of the appellant is not valid in law. The Division Bench of the High Court, therefore, was right in granting the decree as prayed for. | 0[ds]6. There should be consensus ad idem for a concluded contract and it is seen that Section 25(1) of the Contract Act contemplates that when a transfer is without consideration, it is a void contract. It is an admitted position that there is no concluded contract between Smt. Surjeet and Bhagat. The acquiescence did not amount to consent unless Smt. Surjeet Malhan expressly authorised her husband to transfer her shares. The transfer as contemplated in this case is only for a sum of Re. 1/-. As a consequence, in the eye of law, there is no consideration and, therefore, the transfer agreement is voidIt is an admitted position that she had not given authority by any letter in writing otherwise to her husband to transfer her shares in favour of Mr. BhagatWe find no force in the contention. The transaction was between the broker and the purchaser. After the broker purchased the shares on behalf of the company with blank transfer forms, the shares were entrusted. It was, therefore, concluded that the moment the shares were entrusted, being movable property, the contract was complete and, therefore, it was a valid transfer. In this case, there was no direct transaction between Mrs. Surjeet Malhan and Mr. Bhagat. It is not even the case of the appellant that Mr. Malhan had been authorised to entrust those shares and blank transfer forms to Bhagat. Under these circumstances, without any specific authority by the owner of the shares, i.e., Mrs. Surjeet Malhan in favour of third party, including her husband, he gets no right to transfer her shares; nor Bhagat gets and right and title in the shares held by Mrs. MalhanIt is now well settled legal position that Article of Association of a private company is a contract between the parties. Clause (8) reads that No transfer of any share in the capital of the company shall be made or registered without the previous sanction of the Directors. It is an admitted position that no previous sanction has been obtained from the Directors for transfer of the shares held by Mr. MalhanWe are unable to agree with the learned counsel. The concept of previous sanction of the Directors connotes that there should be a written resolution accepting the transfer from Mr. Malhan in favour of Bhagat and such previous sanction should be preceded by handing over of the shares. In this case, such an action was not done and, therefore, even the transfer of the shares held by Mr. Malhan in favour of the appellant is not valid in law. The Division Bench of the High Court, therefore, was right in granting the decree as prayed for. | 0 | 1,319 | 497 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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completion of the transaction to put on rails the company which was running in losses. It would appear that as per the agreement, subsequent transactions were to be completed and in furtherance thereof, it appears that the shares, admittedly, were entrusted to Mr. Bhagat with a blank transfer form. Thereafter, the disputes arose between them. In consequence, the suits came to be laid by the respondents against the appellants. 5. The principal contention raised by Shri P. N. Lekhi, learned senior counsel for the Appellant, is that Mrs. Malhan had admitted in her evidence that her husband had delivered her shares to Bhagat and that she never objected to the transfer and that, therefore, there was an implied consent for the transfer of her shares in favour of Bhagat. Equally, it is contended that when B. K. Malhan had transferred the shares, though they were not registered with the previous consent of the Board of Directors and they were not duly registered in the register maintained by the Registrar in that behalf, there was a complete transaction; the Division Bench, therefore, is not right in reversing the judgment of the single Judge. We find no force in the contentions. 6. There should be consensus ad idem for a concluded contract and it is seen that Section 25(1) of the Contract Act contemplates that when a transfer is without consideration, it is a void contract. It is an admitted position that there is no concluded contract between Smt. Surjeet and Bhagat. The acquiescence did not amount to consent unless Smt. Surjeet Malhan expressly authorised her husband to transfer her shares. The transfer as contemplated in this case is only for a sum of Re. 1/-. As a consequence, in the eye of law, there is no consideration and, therefore, the transfer agreement is void. The question then is : whether the wife had consented to the transfer ? It is an admitted position that she had not given authority by any letter in writing otherwise to her husband to transfer her shares in favour of Mr. Bhagat. Shri Lekhi sought to rely upon a judgment of this Court in Vasudev Ramchandra Shelat v. Pranlal Jayanand Thakar, 1974(2) SCC 323, in which the Privy Council judgment rendered in M.P. Barucha v. W. Sarabhai and Co., 53 Ind App 92, was approved of. He contended that once the shares with blank transfer forms were entrusted, the contract is complete and, therefore, there is a concluded contract between Bhagat and the respondents. We find no force in the contention. The transaction was between the broker and the purchaser. After the broker purchased the shares on behalf of the company with blank transfer forms, the shares were entrusted. It was, therefore, concluded that the moment the shares were entrusted, being movable property, the contract was complete and, therefore, it was a valid transfer. In this case, there was no direct transaction between Mrs. Surjeet Malhan and Mr. Bhagat. It is not even the case of the appellant that Mr. Malhan had been authorised to entrust those shares and blank transfer forms to Bhagat. Under these circumstances, without any specific authority by the owner of the shares, i.e., Mrs. Surjeet Malhan in favour of third party, including her husband, he gets no right to transfer her shares; nor Bhagat gets and right and title in the shares held by Mrs. Malhan. Even the judgment cited by Shri Lekhi in Balkrishna Gupta v. Swadeshi Polytex Ltd., 1985(2) SCC 167, does not help the appellants. In that case the question was whether the appellant was a shareholder. This Court relying upon the concept of ownership of right discussed in Dais on Jurisprudence held that an owner may be divested of his claims etc. arising from the right owned to such extent that he may be left with no immediate practical benefit. He remains the owner of nonetheless because his interest will outlast that of other persons in the thing owned. The owner possesses that right which ultimately enables him to enjoy all rights in the thing owned by attracting towards himself those rights in the thing owned which for the time being belong to others, by getting rid of the corresponding burdens. In that case, similar to transfer of shares without being registered in the company, it was held that he was holder of the shares. The ratio therein also has no application to the facts in this case. Accordingly, we hold that the transfer of shares held by Mrs. Malhan in favour of the appellants is invalid in law. 7. The next question is : whether the transfer of the shares held by Mr. B. K. Malhan is valid in law ? In that behalf clause (8) of the Articles of Association is relevant. It is now well settled legal position that Article of Association of a private company is a contract between the parties. Clause (8) reads that No transfer of any share in the capital of the company shall be made or registered without the previous sanction of the Directors. It is an admitted position that no previous sanction has been obtained from the Directors for transfer of the shares held by Mr. Malhan. Shri Lekhi contends that Mr. Malhan being the only Director, since his father had already resigned and he had entrusted the shares to the appellant. Bhagat, there is a transfer in the eye of law. We are unable to agree with the learned counsel. The concept of previous sanction of the Directors connotes that there should be a written resolution accepting the transfer from Mr. Malhan in favour of Bhagat and such previous sanction should be preceded by handing over of the shares. In this case, such an action was not done and, therefore, even the transfer of the shares held by Mr. Malhan in favour of the appellant is not valid in law. The Division Bench of the High Court, therefore, was right in granting the decree as prayed for.
### Response:
0
### Explanation:
6. There should be consensus ad idem for a concluded contract and it is seen that Section 25(1) of the Contract Act contemplates that when a transfer is without consideration, it is a void contract. It is an admitted position that there is no concluded contract between Smt. Surjeet and Bhagat. The acquiescence did not amount to consent unless Smt. Surjeet Malhan expressly authorised her husband to transfer her shares. The transfer as contemplated in this case is only for a sum of Re. 1/-. As a consequence, in the eye of law, there is no consideration and, therefore, the transfer agreement is voidIt is an admitted position that she had not given authority by any letter in writing otherwise to her husband to transfer her shares in favour of Mr. BhagatWe find no force in the contention. The transaction was between the broker and the purchaser. After the broker purchased the shares on behalf of the company with blank transfer forms, the shares were entrusted. It was, therefore, concluded that the moment the shares were entrusted, being movable property, the contract was complete and, therefore, it was a valid transfer. In this case, there was no direct transaction between Mrs. Surjeet Malhan and Mr. Bhagat. It is not even the case of the appellant that Mr. Malhan had been authorised to entrust those shares and blank transfer forms to Bhagat. Under these circumstances, without any specific authority by the owner of the shares, i.e., Mrs. Surjeet Malhan in favour of third party, including her husband, he gets no right to transfer her shares; nor Bhagat gets and right and title in the shares held by Mrs. MalhanIt is now well settled legal position that Article of Association of a private company is a contract between the parties. Clause (8) reads that No transfer of any share in the capital of the company shall be made or registered without the previous sanction of the Directors. It is an admitted position that no previous sanction has been obtained from the Directors for transfer of the shares held by Mr. MalhanWe are unable to agree with the learned counsel. The concept of previous sanction of the Directors connotes that there should be a written resolution accepting the transfer from Mr. Malhan in favour of Bhagat and such previous sanction should be preceded by handing over of the shares. In this case, such an action was not done and, therefore, even the transfer of the shares held by Mr. Malhan in favour of the appellant is not valid in law. The Division Bench of the High Court, therefore, was right in granting the decree as prayed for.
|
Dhanwanti Joshi Vs. Madhav Unde | only because of the principle of comity but also because, on facts, - which were independently considered - it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mothers application in India were within six months. In that context, this Court referred to H. (infants), Re (CA) which case, as pointed out by us above has been explained in L. Re ( 1971 (1) All(ER) 913, CA) as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee and J v. C ( 1970 AC 668 1969 (2) WLR 540) and the distinction between summary and elaborate inquiries as stated in L. (infants), Re (CA) are today well settled in U.K., Canada, Australia and the USA. The same principles apply in our country. Therefore, nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 - even assuming that the earlier orders passed in India do not operate as constructive res judicata. 31. The facts of the case are that when the respondent moved the courts in India and in the proceedings of 1986 for habeas corpus and under Guardians and Wards Act, the courts in India thought it best in the interests of the child to allow it to continue with the mother in India, and those orders have also become final. The Indian courts in 1993 or 1997, when the child had lived with his mother for nearly 12 years, or more, would not exercise a summary jurisdiction to return the child to USA on the ground that its removal from USA in 1984 was contrary to orders of US courts. 32. In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been "wrongfully" removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to a central authority. Under Article 16 of the Convention, if in the process, the issue goes before a court, the Convention prohibits the court from going into the merits of the welfare of the child. Article 12 requires the child to be sent back, but if a period of more than one year has lapsed from the date of removal to the date of commencement of the proceedings before the court, the child would still be returned unless it is demonstrated that the child is now settled in its new environment. Article 12 is subject to Article 13 and a return could be refused if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. In England, these aspects are covered by the Child Abduction and Custody Act, 1985. 33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re (CA). As recently as 1996-1997, it has been held in P (A minor) (Child Abduction : Non-Convention Country), Re ( 1996 (3) FCR 233, CA) by Ward, L.J. (1996 Current Law Year Book, pp. 165-166) that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence - which was not a party to the Hague Convention, 1980, - the courts overriding consideration must be the childs welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the childs return unless a grave risk of harm was established. See also A (A minor) (Abduction : Non-Convention Country) (Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13). This answers the contention relating to removal of the child from USA. 34. Again as stated earlier, we do not prima facie find any wilful disobedience on the part of the appellant in not producing the child before the Bombay High Court warranting shifting of custody to the father. If the child, after its three-day experience with the father was not willing to come to the court, the appellant could not be faulted. 35. For the aforesaid reasons, the contention of the respondent based on violation of the earlier orders of the US courts or of the Bombay High Court for production of the child, is rejected. Point 3 36. Though we have held that the respondent is not entitled to permanent custody of the child, it is necessary to consider whether the respondent is to be given temporary custody or visitation rights. 37. On the facts of this case, we are not inclined to grant temporary custody to the respondent to take the child from India. That would affect the childs studies and further there is an ex parte order of the US Court giving permanent custody to the father and if that order is executed by the respondent, there is danger of the boy not returning to India thus frustrating any order that we are asked to pass giving temporary custody to the respondent. | 1[ds]20. We are of the view that the High Court, in the present proceedings, was clearly in error in not even referring to the earlier orders and their binding nature on the respondent, insofar as the said orders considered that in the interests of the paramount welfare of the child, the custody was to be with the mother, the appellant. In the present proceedings started afresh in 1993 by the husband, one has to therefore start on the premise that the permanent custody was with the mother. It will be necessary for the respondent to establish facts subsequent to 1990 and before 1993 or 1997, which can amount to change in circumstances requiring custody of the child to be shifted from the appellant to theIt is no doubt true that orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interests of the child (RosyJacob v. Jacob A.Chakramakkal. However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the Family Court in the present proceedings cannot re-examine the facts which were formerly adjudicated between the parties on the issue of custody or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting a new case before the court. It must be established that the previous arrangement was not conducive to the childs welfare or that it has produced unsatisfactory results.From the above, it is clear that the High Court in the case before us was clearly in error in giving sole or more importance to the superior financial capacity of the husband as stated by him in his evidence. Assuming that his financial capacity is superior to that of his wife, that in our opinion cannot be the sole ground for disturbing the child from his mothers custody. As of today, the child is getting good education and is doing well in his studies. The proposal of an immediate American education which the father is prepared to finance cannot, in our opinion, be a sufficient ground for shifting the child to the fathers custody, ignoring the fact that for the last more than 12 years, the child has been in the mothers custody. There is also, no basis, having regard to the oral evidence adduced by the parties, for holding that the mother is permanently residing at Bombay leaving the child at Pune. The appellants categorical evidence that whenever she had to go to Bombay from Pune, her mother used to come from Bombay to Pune to take care of the child, leaves no doubt in our mind that the mother is residing mostly at Pune and goes to Bombay occasionally for very short periods in connection with certain official duties in her employment. The appellant has also reiterated before us that she has been residing at Pune and she has a flat there. As contended by her, the child is a citizen of USA by birth and he can go to USA in his own right in future, whenever it is so decided. Further the evidence of the respondent and of his brother that in the event the child is allowed to go to USA with the respondent, the respondents brother and the latters wife have agreed to proceed to USA, leaving their three daughters in India (of whom one has been married recently) or anticipating the migration of their daughters, appears to us to be too artificial and a make-believe affair rather than real. It appears to us that the effort on the part of the respondent here is only to impress the Court that the child will have company of these persons in case the child is allowed to proceed to USA. This evidence has not appealed toIn the result, therefore, we do not find any substantial change in the circumstances between 1990 and 1993 or 1997 which can justify the shift over the permanent custody of the child from the appellant to theSo far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re (CA). As recently as 1996-1997, it has been held in P (A minor) (Child Abduction : Non-Convention Country), Re ( 1996 (3) FCR 233, CA) by Ward, L.J. (1996 Current Law Year Book, pp. 165-166) that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence - which was not a party to the Hague Convention, 1980, - the courts overriding consideration must be the childs welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the childs return unless a grave risk of harm was established. See also A (A minor) (Abduction : Non-Convention Country) (Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13). This answers the contention relating to removal of the child fromAgain as stated earlier, we do not prima facie find any wilful disobedience on the part of the appellant in not producing the child before the Bombay High Court warranting shifting of custody to the father. If the child, after its three-day experience with the father was not willing to come to the court, the appellant could not beFor the aforesaid reasons, the contention of the respondent based on violation of the earlier orders of the US courts or of the Bombay High Court for production of the child, isOn the facts of this case, we are not inclined to grant temporary custody to the respondent to take the child from India. That would affect the childs studies and further there is an ex parte order of the US Court giving permanent custody to the father and if that order is executed by the respondent, there is danger of the boy not returning to India thus frustrating any order that we are asked to pass giving temporary custody to the | 1 | 7,062 | 1,231 | ### 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:
only because of the principle of comity but also because, on facts, - which were independently considered - it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mothers application in India were within six months. In that context, this Court referred to H. (infants), Re (CA) which case, as pointed out by us above has been explained in L. Re ( 1971 (1) All(ER) 913, CA) as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee and J v. C ( 1970 AC 668 1969 (2) WLR 540) and the distinction between summary and elaborate inquiries as stated in L. (infants), Re (CA) are today well settled in U.K., Canada, Australia and the USA. The same principles apply in our country. Therefore, nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 - even assuming that the earlier orders passed in India do not operate as constructive res judicata. 31. The facts of the case are that when the respondent moved the courts in India and in the proceedings of 1986 for habeas corpus and under Guardians and Wards Act, the courts in India thought it best in the interests of the child to allow it to continue with the mother in India, and those orders have also become final. The Indian courts in 1993 or 1997, when the child had lived with his mother for nearly 12 years, or more, would not exercise a summary jurisdiction to return the child to USA on the ground that its removal from USA in 1984 was contrary to orders of US courts. 32. In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been "wrongfully" removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to a central authority. Under Article 16 of the Convention, if in the process, the issue goes before a court, the Convention prohibits the court from going into the merits of the welfare of the child. Article 12 requires the child to be sent back, but if a period of more than one year has lapsed from the date of removal to the date of commencement of the proceedings before the court, the child would still be returned unless it is demonstrated that the child is now settled in its new environment. Article 12 is subject to Article 13 and a return could be refused if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. In England, these aspects are covered by the Child Abduction and Custody Act, 1985. 33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re (CA). As recently as 1996-1997, it has been held in P (A minor) (Child Abduction : Non-Convention Country), Re ( 1996 (3) FCR 233, CA) by Ward, L.J. (1996 Current Law Year Book, pp. 165-166) that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence - which was not a party to the Hague Convention, 1980, - the courts overriding consideration must be the childs welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the childs return unless a grave risk of harm was established. See also A (A minor) (Abduction : Non-Convention Country) (Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13). This answers the contention relating to removal of the child from USA. 34. Again as stated earlier, we do not prima facie find any wilful disobedience on the part of the appellant in not producing the child before the Bombay High Court warranting shifting of custody to the father. If the child, after its three-day experience with the father was not willing to come to the court, the appellant could not be faulted. 35. For the aforesaid reasons, the contention of the respondent based on violation of the earlier orders of the US courts or of the Bombay High Court for production of the child, is rejected. Point 3 36. Though we have held that the respondent is not entitled to permanent custody of the child, it is necessary to consider whether the respondent is to be given temporary custody or visitation rights. 37. On the facts of this case, we are not inclined to grant temporary custody to the respondent to take the child from India. That would affect the childs studies and further there is an ex parte order of the US Court giving permanent custody to the father and if that order is executed by the respondent, there is danger of the boy not returning to India thus frustrating any order that we are asked to pass giving temporary custody to the respondent.
### Response:
1
### Explanation:
no doubt true that orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interests of the child (RosyJacob v. Jacob A.Chakramakkal. However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the Family Court in the present proceedings cannot re-examine the facts which were formerly adjudicated between the parties on the issue of custody or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting a new case before the court. It must be established that the previous arrangement was not conducive to the childs welfare or that it has produced unsatisfactory results.From the above, it is clear that the High Court in the case before us was clearly in error in giving sole or more importance to the superior financial capacity of the husband as stated by him in his evidence. Assuming that his financial capacity is superior to that of his wife, that in our opinion cannot be the sole ground for disturbing the child from his mothers custody. As of today, the child is getting good education and is doing well in his studies. The proposal of an immediate American education which the father is prepared to finance cannot, in our opinion, be a sufficient ground for shifting the child to the fathers custody, ignoring the fact that for the last more than 12 years, the child has been in the mothers custody. There is also, no basis, having regard to the oral evidence adduced by the parties, for holding that the mother is permanently residing at Bombay leaving the child at Pune. The appellants categorical evidence that whenever she had to go to Bombay from Pune, her mother used to come from Bombay to Pune to take care of the child, leaves no doubt in our mind that the mother is residing mostly at Pune and goes to Bombay occasionally for very short periods in connection with certain official duties in her employment. The appellant has also reiterated before us that she has been residing at Pune and she has a flat there. As contended by her, the child is a citizen of USA by birth and he can go to USA in his own right in future, whenever it is so decided. Further the evidence of the respondent and of his brother that in the event the child is allowed to go to USA with the respondent, the respondents brother and the latters wife have agreed to proceed to USA, leaving their three daughters in India (of whom one has been married recently) or anticipating the migration of their daughters, appears to us to be too artificial and a make-believe affair rather than real. It appears to us that the effort on the part of the respondent here is only to impress the Court that the child will have company of these persons in case the child is allowed to proceed to USA. This evidence has not appealed toIn the result, therefore, we do not find any substantial change in the circumstances between 1990 and 1993 or 1997 which can justify the shift over the permanent custody of the child from the appellant to theSo far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re (CA). As recently as 1996-1997, it has been held in P (A minor) (Child Abduction : Non-Convention Country), Re ( 1996 (3) FCR 233, CA) by Ward, L.J. (1996 Current Law Year Book, pp. 165-166) that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence - which was not a party to the Hague Convention, 1980, - the courts overriding consideration must be the childs welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the childs return unless a grave risk of harm was established. See also A (A minor) (Abduction : Non-Convention Country) (Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13). This answers the contention relating to removal of the child fromAgain as stated earlier, we do not prima facie find any wilful disobedience on the part of the appellant in not producing the child before the Bombay High Court warranting shifting of custody to the father. If the child, after its three-day experience with the father was not willing to come to the court, the appellant could not beFor the aforesaid reasons, the contention of the respondent based on violation of the earlier orders of the US courts or of the Bombay High Court for production of the child, isOn the facts of this case, we are not inclined to grant temporary custody to the respondent to take the child from India. That would affect the childs studies and further there is an ex parte order of the US Court giving permanent custody to the father and if that order is executed by the respondent, there is danger of the boy not returning to India thus frustrating any order that we are asked to pass giving temporary custody to the
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Bharat Coking Coal Limited Vs. Shyam Sunder Prasad and Others | Despite substitute service effected by giving publication of the notice in Hindustan and Aaj published from Patna, no one has appeared for the respondents. The respondent instituted a suit for declaration that some machinery had not vested under the Coal Nationalisation Act. The suit was declared in favour of the plaintiff-respondent by following the definition of "owner" and "mine" under the Mines Act. It may be stated that the limited nature of the definition of mine in the Mines Act was noticed by this Court in the decision in Serajuddin & Co. v. Workmen. It was held that mine in Section 2(j) of the Mines Act excluded an office of mine which was separately defined by Section 2(k). The office of the mine even though situated on the surface of the mine did not fall within the definition of mine. However; in the Coal Mines (Taking Over of Management) Act, 1973, an extended meaning was given to the expression "mine" and under the said Act, the management of coal mines vested in the Central Government on and from the appointed day, namely, from 30-1-1973 and the coal mines specified in the Schedule of the Act were deemed to be the mines of which the management vested in the Central Government by virtue of provisions of Section 3(2) of the said Act. The Coal Mines (Taking Over of Management) Act, 1973 was followed by the Coal Mines (Nationalisation) Act, 1973 and the extended definition of mine as indicated in the Coal Mines (Taking Over of Management) Act was retained in Section 2(h) of the Nationalisation Act with modification. The definition of "mine" has been noticed by this Court in the decision of Bharat Coking Coal Ltd. v. Madanlal Agrawal and it has been held on consideration of the definition of "owner" and "mine" in the said Coal (Nationalisation) Act that even assets in respect of which the mine a or the mining company may not be the proprietor but which were leased to the mine or which were in the possession of a mine over a period of time, would stand acquired. In the instant case, the machineries concerned were boilers and from the nature of the user it can be reasonably held that the same were used in connection with the mining operation. Under the extended definition of mine in the Coal Nationalisation Act such machine had therefore vested. | 1[ds]In the instant case, the machineries concerned were boilers and from the nature of the user it can be reasonably held that the same were used in connection with the mining operation. Under the extended definition of mine in the Coal Nationalisation Act such machine had therefore vested. | 1 | 455 | 55 | ### 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:
Despite substitute service effected by giving publication of the notice in Hindustan and Aaj published from Patna, no one has appeared for the respondents. The respondent instituted a suit for declaration that some machinery had not vested under the Coal Nationalisation Act. The suit was declared in favour of the plaintiff-respondent by following the definition of "owner" and "mine" under the Mines Act. It may be stated that the limited nature of the definition of mine in the Mines Act was noticed by this Court in the decision in Serajuddin & Co. v. Workmen. It was held that mine in Section 2(j) of the Mines Act excluded an office of mine which was separately defined by Section 2(k). The office of the mine even though situated on the surface of the mine did not fall within the definition of mine. However; in the Coal Mines (Taking Over of Management) Act, 1973, an extended meaning was given to the expression "mine" and under the said Act, the management of coal mines vested in the Central Government on and from the appointed day, namely, from 30-1-1973 and the coal mines specified in the Schedule of the Act were deemed to be the mines of which the management vested in the Central Government by virtue of provisions of Section 3(2) of the said Act. The Coal Mines (Taking Over of Management) Act, 1973 was followed by the Coal Mines (Nationalisation) Act, 1973 and the extended definition of mine as indicated in the Coal Mines (Taking Over of Management) Act was retained in Section 2(h) of the Nationalisation Act with modification. The definition of "mine" has been noticed by this Court in the decision of Bharat Coking Coal Ltd. v. Madanlal Agrawal and it has been held on consideration of the definition of "owner" and "mine" in the said Coal (Nationalisation) Act that even assets in respect of which the mine a or the mining company may not be the proprietor but which were leased to the mine or which were in the possession of a mine over a period of time, would stand acquired. In the instant case, the machineries concerned were boilers and from the nature of the user it can be reasonably held that the same were used in connection with the mining operation. Under the extended definition of mine in the Coal Nationalisation Act such machine had therefore vested.
### Response:
1
### Explanation:
In the instant case, the machineries concerned were boilers and from the nature of the user it can be reasonably held that the same were used in connection with the mining operation. Under the extended definition of mine in the Coal Nationalisation Act such machine had therefore vested.
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Indian Metals And Ferro Alloys Ltd Vs. Union Of India And Ors | sions, it does not follow that it becomes entitled to a captive mine to cater to its needs. We, however, express no concluded opinion on this issue which does not arise for our consideration . The SG has to take into account various factors and aspects (some of which have also been referredto in the interim order of this Court dated 27.9.84) before granting a ML to an individual concern carving out an excep- tion to its reservation policy . This it has done in respect of IMFA and FACOR for certain special reasons which have been elaborated upon earlier. Whether it would do so also in favour of OCL and ORIND is for the State to consider. We express no opinion on these claims and l eave it for the consideration of the SG and C.G. It would have been noticed that the applications of these two companies have not been considered in this light earlier. We, therefore, restore the applications of OCL and ORIND for the consideration o f the S.G. The learned Advocate General of Orissa also submitted that Special Leave Petition No. 8574/89 filed by ORIND from the order of the S.G. is not maintainable. He urged that the S.G., in disposing of applications for ML, is not function- ing as "tribunal" and he cited the decisions in Shivji v. Union, 1960 (2) SCR 775 and Indo-China Steam Navigation Co. v. Jasjit Singh, 1964 (6) SCR 594 in support. We do not 95 consider it necessary to go into this issue. The S.G. has, by the impugn ed order, rejected ORINDs application, inter alia, on the ground that, in view of the pendency of W.P. 14116/84 before this Court, it could not at that stage pass any order on the application. It would, therefore, be open to ORIND to ask the S.G. to reconsider the application in the light of our present order. We see no necessity f6r insisting on such a formal request and would, therefore, direct the S.G. to consider ORINDs application afresh in the light of this judgment. So far as OMC &IDCOL are concerned, Rao has "recommend- ed" that the areas of items I &2, left after the grants to IMFA and FACOR. be given on lease to OMC. We have seen that there are huge areas of mineral bearing lands which have been reserved for the public sector. Its interests do not clash or come into conflict with those of private applicants which can only claim a right to the extent the SG is willing to relax the rule of reservation. We do not think the OMC orIDCOL have any voice in requiring that the SG should keep certain extents of land reserved and should not grant any ML at all in favour of an), private party. The interests of these corporations are safe in the hands 01 the S.G. and the allocation of MLs to these organisations i s a matter of discretion with the S.G. Strictly speaking, , therefore. no question of any application by them for ML need arise at all. But, when made, their applications arc considered by the S.G. and, on revision by the C.G. as a matter of for m. To this extent, they have a statutory remedy but, beyond this. we think they cannot go. We are of opinion that their interests are safe with the S.G. and need no directions from us. Even IMFA and FACOR urge that their claims to further lease s deserve consideration. Rao has already adjudicated upon their claims and "recommended" leases to them to the extent indicated. If they apply to the S.G. for more leases. it is open to the S.G. to consider whether they deserve any further leases and if so, to what extent. more reserved areas could be released in their favour. The learned Advocate General for the State emphasised that the State is also interested in its industrial develop- ment and the national economy and that, while reserving substantial areas for public sector exploitation, the State has a well-formulated policy in respect of grant of private leases which has been placed before Rao. He also submits that, even if grant of a ML in favour of a particular party is not found feasible, the State will do its best to ensure that the ore mined in the 96 State is equitably distributed so as to meet the legitimate needs of all industries operating in the State. We have no doubt that the S.G. will keep. all relevant aspects urged by the parties in reaching their decision on the matters re- manded to it by us. In the circumstances, we accept and confirm Raos recom- mendation for grant of MLs to IMFA, FACOR and AIKATH, to the extent indicated by him. We set asi de his rejection of theclaims of OCL and ORIND. We leave it open to all the parties to place their claims, or further claims, as the case may be, in regard to the areas applied for by them on or before 30.4.1987, backed by supporting reasons, before the S.G. in the form of representations within four weeks from the date of this order. The S.G., we hope, will dispose of these applications within the statutory period failing which the parties will have their remedy under the statute by way of revision to the C.G. In arriving at its decisions, it will be open to the S.G. to take into account the discussions and findings of the Rao report in the light of this judgment. The S.G. should also keep in mind that no leases to any of the partie s (other than OMC &IDCOL) can be granted unless either the areas so proposed to be leased out are dereserved and thrown open to applications from the public or unless the C.G., after considering the recommendations of the S.G., for reasons to be reco rded in writing, considers a relaxa- tion in favour of any of the parties necessary and justi- fied. | 1[ds]We do not think the OMC orIDCOL have any voice in requiring that the SG should keep certain extents of land reserved and should not grant any ML at all in favour of an), private party. The interests of these corporations are safe in the hands 01 the S.G. and the allocation of MLs to these organisations i s a matter of discretion with the S.G. Strictly speaking, , therefore. no question of any application by them for ML need arise at all. But, when made, their applications arc considered by the S.G. and, on revision by the C.G. as a matter of for m. To this extent, they have a statutory remedy but, beyond this. we think they cannot go. We are of opinion that their interests are safe with the S.G. and need no directions from us. Even IMFA and FACOR urge that their claims to further lease s deserve consideration. Rao has already adjudicated upon their claims and "recommended" leases to them to the extent indicated. If they apply to the S.G. for more leases. it is open to the S.G. to consider whether they deserve any further leases and if so, to what extent. more reserved areas could be released in their favour. The learned Advocate General for the State emphasised that the State is also interested in its industrial develop- ment and the national economy and that, while reserving substantial areas for public sector exploitation, the State has a well-formulated policy in respect of grant of private leases which has been placed before Rao. He also submits that, even if grant of a ML in favour of a particular party is not found feasible, the State will do its best to ensure that the ore mined in the 96 State is equitably distributed so as to meet the legitimate needs of all industries operating in the State. We have no doubt that the S.G. will keep. all relevant aspects urged by the parties in reaching their decision on the matters re- manded to it by us. In the circumstances, we accept and confirm Raos recom- mendation for grant of MLs to IMFA, FACOR and AIKATH, to the extent indicated by him. We set asi de his rejection of theclaims of OCL and ORIND. We leave it open to all the parties to place their claims, or further claims, as the case may be, in regard to the areas applied for by them on or before 30.4.1987, backed by supporting reasons, before the S.G. in the form of representations within four weeks from the date of this order. The S.G., we hope, will dispose of these applications within the statutory period failing which the parties will have their remedy under the statute by way of revision to the C.G. In arriving at its decisions, it will be open to the S.G. to take into account the discussions and findings of the Rao report in the light of this judgment. The S.G. should also keep in mind that no leases to any of the partie s (other than OMC &IDCOL) can be granted unless either the areas so proposed to be leased out are dereserved and thrown open to applications from the public or unless the C.G., after considering the recommendations of the S.G., for reasons to be reco rded in writing, considers a relaxa- tion in favour of any of the parties necessary and justi- fied. | 1 | 26,376 | 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:
sions, it does not follow that it becomes entitled to a captive mine to cater to its needs. We, however, express no concluded opinion on this issue which does not arise for our consideration . The SG has to take into account various factors and aspects (some of which have also been referredto in the interim order of this Court dated 27.9.84) before granting a ML to an individual concern carving out an excep- tion to its reservation policy . This it has done in respect of IMFA and FACOR for certain special reasons which have been elaborated upon earlier. Whether it would do so also in favour of OCL and ORIND is for the State to consider. We express no opinion on these claims and l eave it for the consideration of the SG and C.G. It would have been noticed that the applications of these two companies have not been considered in this light earlier. We, therefore, restore the applications of OCL and ORIND for the consideration o f the S.G. The learned Advocate General of Orissa also submitted that Special Leave Petition No. 8574/89 filed by ORIND from the order of the S.G. is not maintainable. He urged that the S.G., in disposing of applications for ML, is not function- ing as "tribunal" and he cited the decisions in Shivji v. Union, 1960 (2) SCR 775 and Indo-China Steam Navigation Co. v. Jasjit Singh, 1964 (6) SCR 594 in support. We do not 95 consider it necessary to go into this issue. The S.G. has, by the impugn ed order, rejected ORINDs application, inter alia, on the ground that, in view of the pendency of W.P. 14116/84 before this Court, it could not at that stage pass any order on the application. It would, therefore, be open to ORIND to ask the S.G. to reconsider the application in the light of our present order. We see no necessity f6r insisting on such a formal request and would, therefore, direct the S.G. to consider ORINDs application afresh in the light of this judgment. So far as OMC &IDCOL are concerned, Rao has "recommend- ed" that the areas of items I &2, left after the grants to IMFA and FACOR. be given on lease to OMC. We have seen that there are huge areas of mineral bearing lands which have been reserved for the public sector. Its interests do not clash or come into conflict with those of private applicants which can only claim a right to the extent the SG is willing to relax the rule of reservation. We do not think the OMC orIDCOL have any voice in requiring that the SG should keep certain extents of land reserved and should not grant any ML at all in favour of an), private party. The interests of these corporations are safe in the hands 01 the S.G. and the allocation of MLs to these organisations i s a matter of discretion with the S.G. Strictly speaking, , therefore. no question of any application by them for ML need arise at all. But, when made, their applications arc considered by the S.G. and, on revision by the C.G. as a matter of for m. To this extent, they have a statutory remedy but, beyond this. we think they cannot go. We are of opinion that their interests are safe with the S.G. and need no directions from us. Even IMFA and FACOR urge that their claims to further lease s deserve consideration. Rao has already adjudicated upon their claims and "recommended" leases to them to the extent indicated. If they apply to the S.G. for more leases. it is open to the S.G. to consider whether they deserve any further leases and if so, to what extent. more reserved areas could be released in their favour. The learned Advocate General for the State emphasised that the State is also interested in its industrial develop- ment and the national economy and that, while reserving substantial areas for public sector exploitation, the State has a well-formulated policy in respect of grant of private leases which has been placed before Rao. He also submits that, even if grant of a ML in favour of a particular party is not found feasible, the State will do its best to ensure that the ore mined in the 96 State is equitably distributed so as to meet the legitimate needs of all industries operating in the State. We have no doubt that the S.G. will keep. all relevant aspects urged by the parties in reaching their decision on the matters re- manded to it by us. In the circumstances, we accept and confirm Raos recom- mendation for grant of MLs to IMFA, FACOR and AIKATH, to the extent indicated by him. We set asi de his rejection of theclaims of OCL and ORIND. We leave it open to all the parties to place their claims, or further claims, as the case may be, in regard to the areas applied for by them on or before 30.4.1987, backed by supporting reasons, before the S.G. in the form of representations within four weeks from the date of this order. The S.G., we hope, will dispose of these applications within the statutory period failing which the parties will have their remedy under the statute by way of revision to the C.G. In arriving at its decisions, it will be open to the S.G. to take into account the discussions and findings of the Rao report in the light of this judgment. The S.G. should also keep in mind that no leases to any of the partie s (other than OMC &IDCOL) can be granted unless either the areas so proposed to be leased out are dereserved and thrown open to applications from the public or unless the C.G., after considering the recommendations of the S.G., for reasons to be reco rded in writing, considers a relaxa- tion in favour of any of the parties necessary and justi- fied.
### Response:
1
### Explanation:
We do not think the OMC orIDCOL have any voice in requiring that the SG should keep certain extents of land reserved and should not grant any ML at all in favour of an), private party. The interests of these corporations are safe in the hands 01 the S.G. and the allocation of MLs to these organisations i s a matter of discretion with the S.G. Strictly speaking, , therefore. no question of any application by them for ML need arise at all. But, when made, their applications arc considered by the S.G. and, on revision by the C.G. as a matter of for m. To this extent, they have a statutory remedy but, beyond this. we think they cannot go. We are of opinion that their interests are safe with the S.G. and need no directions from us. Even IMFA and FACOR urge that their claims to further lease s deserve consideration. Rao has already adjudicated upon their claims and "recommended" leases to them to the extent indicated. If they apply to the S.G. for more leases. it is open to the S.G. to consider whether they deserve any further leases and if so, to what extent. more reserved areas could be released in their favour. The learned Advocate General for the State emphasised that the State is also interested in its industrial develop- ment and the national economy and that, while reserving substantial areas for public sector exploitation, the State has a well-formulated policy in respect of grant of private leases which has been placed before Rao. He also submits that, even if grant of a ML in favour of a particular party is not found feasible, the State will do its best to ensure that the ore mined in the 96 State is equitably distributed so as to meet the legitimate needs of all industries operating in the State. We have no doubt that the S.G. will keep. all relevant aspects urged by the parties in reaching their decision on the matters re- manded to it by us. In the circumstances, we accept and confirm Raos recom- mendation for grant of MLs to IMFA, FACOR and AIKATH, to the extent indicated by him. We set asi de his rejection of theclaims of OCL and ORIND. We leave it open to all the parties to place their claims, or further claims, as the case may be, in regard to the areas applied for by them on or before 30.4.1987, backed by supporting reasons, before the S.G. in the form of representations within four weeks from the date of this order. The S.G., we hope, will dispose of these applications within the statutory period failing which the parties will have their remedy under the statute by way of revision to the C.G. In arriving at its decisions, it will be open to the S.G. to take into account the discussions and findings of the Rao report in the light of this judgment. The S.G. should also keep in mind that no leases to any of the partie s (other than OMC &IDCOL) can be granted unless either the areas so proposed to be leased out are dereserved and thrown open to applications from the public or unless the C.G., after considering the recommendations of the S.G., for reasons to be reco rded in writing, considers a relaxa- tion in favour of any of the parties necessary and justi- fied.
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KALYAN SINGH Vs. RAVINDER KAUR (D) THR. LRS | R. Banumathi, J. 1. Leave granted. 2. This appeal arises out of judgment dated 13th May, 2016 passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal No.859 of 1988 in which the High Court has reversed the judgment of the First Appellate Court and restoring the judgment of the trial court thereby affirming the decree in favour of respondents/plaintiff for declaration and possession. 3. The respondents-plaintiff has purchased the suit property admeasuring an extent of 852-1/3 sq. yards by a sale deed dated 6th September, 1978. Alleging that the appellant-defendant has taken forcible possession of the suit property, the respondents-plaintiff has filed the suit for declaration and possession. The trial court decreed the suit in favour of the respondents-plaintiff holding that the vendor of the plaintiff had appeared and testified about sale deed dated 6th September, 1978 that physical possession of the property covered under the sale deed was delivered to them. 4. Being aggrieved, the appellant herein filed appeal before the Appellate Court which was allowed. After referring to the Report of the Local Commissioner that the respondents-plaintiff is in actual possession of 955 sq. yards as against 852-1/3 sq. yards purchased by them and that the consolidation records are missing and also that there was no pucca burji, the First Appellate Court reversed the judgment of the trial court thereby dismissing the respondents-plaintiffs suit. In the second appeal, the High Court has reversed the judgment of the First Appellate Court and held that the Local Commissioner has not verified the available map with the Patwari and that based on the Local Commissioners Report, the First Appellate Court ought not to have reversed the judgment and decree of the trial court. 5. We have heard Mr. Rakesh Kumar Khanna, learned senior counsel appearing for the appellant and Mr. Sangram S. Saron, learned counsel appearing for the respondents. 6. As seen from the sale deed filed (Annexure CA-1 of the paper book), the respondents-plaintiff has purchased the property, an extent of 852-1/3 sq. yards in Khasra No.316/1. As per the evidence of the respondents-plaintiff-vendor, the respondents-plaintiff was put in physical possession on the land covered under the sale deed viz. an extent of 852-1/3 sq. yards. As pointed out by the First Appellate Court that after the local inspection of the suit property the Local Commissioner in his Report, Ex.D1/K, has observed that the respondents-plaintiff is in possession of 955 sq. yards of the land though she (Ravinder Kaur) actually purchased 852 sq. yards only and the said Report was not challenged by the respondents-plaintiff. As pointed out by the First Appellate Court when the Local Commissioners report was not challenged by the plaintiff, the oral testimony of Sajjan Singh (PW-2), vendor of the plaintiff, and her husband, Ripudaman Singh (PW- 1), does not substantiate the claim of the plaintiff that the appellants have encroached upon the suit property. The claim of the respondents-plaintiff that the appellant has encroached upon the property and took forcible possession under the garb of temporary injunction in the earlier suit remains unsubstantiated. Further there are no clear averments as to the alleged date of encroachment and the steps then taken by the respondents-plaintiff. In our considered view the High Court has not considered the findings recorded by the First Appellate Court which is based upon the appreciation of the evidence and Report of the Local Commissioner. | 1[ds]6. As seen from the sale deed filed (Annexure CA-1 of the paper book), the respondents-plaintiff has purchased the property, an extent of 852-1/3 sq. yards in Khasra No.316/1. As per the evidence of the respondents-plaintiff-vendor, the respondents-plaintiff was put in physical possession on the land covered under the sale deed viz. an extent of 852-1/3 sq. yards. As pointed out by the First Appellate Court that after the local inspection of the suit property the Local Commissioner in his Report, Ex.D1/K, has observed that the respondents-plaintiff is in possession of 955 sq. yards of the land though she (Ravinder Kaur) actually purchased 852 sq. yards only and the said Report was not challenged by the respondents-plaintiff. As pointed out by the First Appellate Court when the Local Commissioners report was not challenged by the plaintiff, the oral testimony of Sajjan Singh (PW-2), vendor of the plaintiff, and her husband, Ripudaman Singh (PW- 1), does not substantiate the claim of the plaintiff that the appellants have encroached upon the suit property. The claim of the respondents-plaintiff that the appellant has encroached upon the property and took forcible possession under the garb of temporary injunction in the earlier suit remains unsubstantiated. Further there are no clear averments as to the alleged date of encroachment and the steps then taken by the respondents-plaintiff. In our considered view the High Court has not considered the findings recorded by the First Appellate Court which is based upon the appreciation of the evidence and Report of the Local Commissioner. | 1 | 628 | 289 | ### 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:
R. Banumathi, J. 1. Leave granted. 2. This appeal arises out of judgment dated 13th May, 2016 passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal No.859 of 1988 in which the High Court has reversed the judgment of the First Appellate Court and restoring the judgment of the trial court thereby affirming the decree in favour of respondents/plaintiff for declaration and possession. 3. The respondents-plaintiff has purchased the suit property admeasuring an extent of 852-1/3 sq. yards by a sale deed dated 6th September, 1978. Alleging that the appellant-defendant has taken forcible possession of the suit property, the respondents-plaintiff has filed the suit for declaration and possession. The trial court decreed the suit in favour of the respondents-plaintiff holding that the vendor of the plaintiff had appeared and testified about sale deed dated 6th September, 1978 that physical possession of the property covered under the sale deed was delivered to them. 4. Being aggrieved, the appellant herein filed appeal before the Appellate Court which was allowed. After referring to the Report of the Local Commissioner that the respondents-plaintiff is in actual possession of 955 sq. yards as against 852-1/3 sq. yards purchased by them and that the consolidation records are missing and also that there was no pucca burji, the First Appellate Court reversed the judgment of the trial court thereby dismissing the respondents-plaintiffs suit. In the second appeal, the High Court has reversed the judgment of the First Appellate Court and held that the Local Commissioner has not verified the available map with the Patwari and that based on the Local Commissioners Report, the First Appellate Court ought not to have reversed the judgment and decree of the trial court. 5. We have heard Mr. Rakesh Kumar Khanna, learned senior counsel appearing for the appellant and Mr. Sangram S. Saron, learned counsel appearing for the respondents. 6. As seen from the sale deed filed (Annexure CA-1 of the paper book), the respondents-plaintiff has purchased the property, an extent of 852-1/3 sq. yards in Khasra No.316/1. As per the evidence of the respondents-plaintiff-vendor, the respondents-plaintiff was put in physical possession on the land covered under the sale deed viz. an extent of 852-1/3 sq. yards. As pointed out by the First Appellate Court that after the local inspection of the suit property the Local Commissioner in his Report, Ex.D1/K, has observed that the respondents-plaintiff is in possession of 955 sq. yards of the land though she (Ravinder Kaur) actually purchased 852 sq. yards only and the said Report was not challenged by the respondents-plaintiff. As pointed out by the First Appellate Court when the Local Commissioners report was not challenged by the plaintiff, the oral testimony of Sajjan Singh (PW-2), vendor of the plaintiff, and her husband, Ripudaman Singh (PW- 1), does not substantiate the claim of the plaintiff that the appellants have encroached upon the suit property. The claim of the respondents-plaintiff that the appellant has encroached upon the property and took forcible possession under the garb of temporary injunction in the earlier suit remains unsubstantiated. Further there are no clear averments as to the alleged date of encroachment and the steps then taken by the respondents-plaintiff. In our considered view the High Court has not considered the findings recorded by the First Appellate Court which is based upon the appreciation of the evidence and Report of the Local Commissioner.
### Response:
1
### Explanation:
6. As seen from the sale deed filed (Annexure CA-1 of the paper book), the respondents-plaintiff has purchased the property, an extent of 852-1/3 sq. yards in Khasra No.316/1. As per the evidence of the respondents-plaintiff-vendor, the respondents-plaintiff was put in physical possession on the land covered under the sale deed viz. an extent of 852-1/3 sq. yards. As pointed out by the First Appellate Court that after the local inspection of the suit property the Local Commissioner in his Report, Ex.D1/K, has observed that the respondents-plaintiff is in possession of 955 sq. yards of the land though she (Ravinder Kaur) actually purchased 852 sq. yards only and the said Report was not challenged by the respondents-plaintiff. As pointed out by the First Appellate Court when the Local Commissioners report was not challenged by the plaintiff, the oral testimony of Sajjan Singh (PW-2), vendor of the plaintiff, and her husband, Ripudaman Singh (PW- 1), does not substantiate the claim of the plaintiff that the appellants have encroached upon the suit property. The claim of the respondents-plaintiff that the appellant has encroached upon the property and took forcible possession under the garb of temporary injunction in the earlier suit remains unsubstantiated. Further there are no clear averments as to the alleged date of encroachment and the steps then taken by the respondents-plaintiff. In our considered view the High Court has not considered the findings recorded by the First Appellate Court which is based upon the appreciation of the evidence and Report of the Local Commissioner.
|
Punjab Traders And Ors Vs. State Of Punjab And Ors | definition of sugar factory has not undergone any change, and it reads as follows: "2. (d) sugar factory means any premises, including the land, godowns or outhouses appurtenant thereto, whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process connected with the production of sugar by means of vacuum pans or in open pans is being carried on or is ordinarily so carried on, with the aid of power." The main object of the Amendment Act, 1973 is to clarify that the Principal Act applies in equal measure to a khandsari unit as it does to any other sugar factory. ( 10 ) The contention is that the provisions of the Amendment Act, 1973, though not in themselves unreasonable restrictions, nevertheless bring the appellants under greater statutory control, and are, therefore, invalid for want of previous sanction of the President in terms of the proviso to Article 304(b). This challenge, as seen above, has been rejected by the High court for the reason that the appellants business has been in equal measure controlled by the Principal Act itself. The appellants being dealers in molasses, the new definition of the term "molasses", which includes "khandsari sugar", does not subject their business to any greater control.( 11 ) The appellants counsel, Mr G.L. Sanghi contends that the provisions of the Amendment Act, 1973 impose d."ect and immediate restrictions upon the appellants trade. They are a burden on trade and they deter the appellants from trading. They directly affect the freedom of trade and commerce. They are not merely regulatory for the purpose of facilitating the free flow of trade and commerce. They are restrictions hampering trade. They may be justifiable as reasonable restrictions, but being restrictions unsupported by previous sanction of the President, they are nevertheless invalid.( 12 ) Mr C.M. Nayar, appearing for the respondents, on the other hand, contends that the impugned provisions of the Amendment Act, 1973 are regulatory measures enacted to facilitate trade and they do not come within the ban of the proviso to clause (b) of Article 304. These provisions do not require the previous sanction of the President in terms of the proviso to Article 304(b). ( 13 ) Counsel on both sides, in support of the respective contentions, refer to the principle stated by this court in Atiabari Tea Co. Ltd. v. State of Assam, Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan State of Bihar v. Harihar Prasad Debuka and other cases".( 14 ) It is not, and cannot be, disputed that if the impugned provisions are not merely regulatory with a view to facilitating trade, but are in quality and substance restrictive, though reasonable as restrictions can be, and if they in effect constitute a hindrance or impediment to the free flow or movement of trade, they are unconstitutional in the absence of previous sanction of the President. The question, however, is, the Principal Act, being an "existing law" and, therefore, beyond challenge, do the impugned provisions, introduced in 1973, being additional provisions, enlarge in substance and quality the scope and ambit of the Principal Act, thereby impeding in greater measure the free flow or movement of trade so as to fall within the ban of the proviso to clause (b) of Article 304 ? In other words, does the Amendment Act, 1973, restrict the appellants business to a greater extent or is it merely clarificatory insofar as, at any rate, the appellants are concerned ?( 15 ) The point then really is, has the amendment made the Act more stringent insofar as the appellants are concerned ? If the answer is negative, as the High court has held, the appellants are not aggrieved, and a cannot, therefore, successfully challenge the Amendment Act.( 16 ) Referring to the principle of contemporanea expositio, Mr Sanghi says that the Act, as it stood before the amendment, was not understood to apply to khandsari unit, and consequently to the business of the appellants, and it became applicable only as a result of the amendment. We do not agree that this submission is right. The High court has, on the basis of the pleadings and other evidence, and with reference to the relevant provisions, categorically held that the Act, as it originally stood, was applicable to the trade of the appellants, and the amendment in effect did not make any difference to them. The High court has found that the appellants were not aggrieved solely by reason of the amendment, and the provisions, as they stood prior to the amendment, applied to them in equal measure. This apart, the amendment, in our view, was merely clarificatory, and it was always well understood in trade that khandsari sugar was also sugar, and that any reference to sugar, in the absence of specific exclusion or qualification, was capable of equal application to sugar of all kinds including khandsari. Even if it is true that persons who dealt with the statute understood its provisions in a restricted sense, such mistaken construction of the statute did not bind the court so as to prevent it from giving it its true construction. (See the observation of Lord Blackburn in Trustees of the Clyde Navigation v. Laird and Sons As quoted in National and Grindlays Bank Ltd. v. Municipal Corporation of Greater Bombay.( 17 ) We are of the view that the reasoning of the High court was correct. The Principal Act being an existing law within the meaning of Article 366(10 read with Article 305 of the Constitution, and the provisions of the Amendment Act, 1973 which are impugned in this appeal being clarificatory, the previous sanction of the President was not required. See the principle stated in Syed Ahmed Aga v. State of Mysore. We do not, however, express any view as to whether the impugned Act is regulatory or restrictive, for that question, for the present purpose, is, in our opinion, academic. | 0[ds]( 14 ) It is not, and cannot be, disputed that if the impugned provisions are not merely regulatory with a view to facilitating trade, but are in quality and substance restrictive, though reasonable as restrictions can be, and if they in effect constitute a hindrance or impediment to the free flow or movement of trade, they are unconstitutional in the absence of previous sanction of the President. The question, however, is, the Principal Act, being an "existing law" and, therefore, beyond challenge, do the impugned provisions, introduced in 1973, being additional provisions, enlarge in substance and quality the scope and ambit of the Principal Act, thereby impeding in greater measure the free flow or movement of trade so as to fall within the ban of the proviso to clause (b) of Article 304 ? In other words, does the Amendment Act, 1973, restrict the appellants business to a greater extent or is it merely clarificatory insofar as, at any rate, the appellants are concerned ?( 15 ) The point then really is, has the amendment made the Act more stringent insofar as the appellants are concerned ? If the answer is negative, as the High court has held, the appellants are not aggrieved, and a cannot, therefore, successfully challenge the Amendment Act.( 16 ) Referring to the principle of contemporanea expositio, Mr Sanghi says that the Act, as it stood before the amendment, was not understood to apply to khandsari unit, and consequently to the business of the appellants, and it became applicable only as a result of the amendment. We do not agree that this submission is right. The High court has, on the basis of the pleadings and other evidence, and with reference to the relevant provisions, categorically held that the Act, as it originally stood, was applicable to the trade of the appellants, and the amendment in effect did not make any difference to them. The High court has found that the appellants were not aggrieved solely by reason of the amendment, and the provisions, as they stood prior to the amendment, applied to them in equal measure. This apart, the amendment, in our view, was merely clarificatory, and it was always well understood in trade that khandsari sugar was also sugar, and that any reference to sugar, in the absence of specific exclusion or qualification, was capable of equal application to sugar of all kinds including khandsari. Even if it is true that persons who dealt with the statute understood its provisions in a restricted sense, such mistaken construction of the statute did not bind the court so as to prevent it from giving it its true construction. (See the observation of Lord Blackburn in Trustees of the Clyde Navigation v. Laird and Sons As quoted in National and Grindlays Bank Ltd. v. Municipal Corporation of Greater Bombay.( 17 ) We are of the view that the reasoning of the High court was correct. The Principal Act being an existing law within the meaning of Article 366(10 read with Article 305 of the Constitution, and the provisions of the Amendment Act, 1973 which are impugned in this appeal being clarificatory, the previous sanction of the President was not required. See the principle stated in Syed Ahmed Aga v. State of Mysore. We do not, however, express any view as to whether the impugned Act is regulatory or restrictive, for that question, for the present purpose, is, in our opinion, academic. | 0 | 2,605 | 664 | ### 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:
definition of sugar factory has not undergone any change, and it reads as follows: "2. (d) sugar factory means any premises, including the land, godowns or outhouses appurtenant thereto, whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process connected with the production of sugar by means of vacuum pans or in open pans is being carried on or is ordinarily so carried on, with the aid of power." The main object of the Amendment Act, 1973 is to clarify that the Principal Act applies in equal measure to a khandsari unit as it does to any other sugar factory. ( 10 ) The contention is that the provisions of the Amendment Act, 1973, though not in themselves unreasonable restrictions, nevertheless bring the appellants under greater statutory control, and are, therefore, invalid for want of previous sanction of the President in terms of the proviso to Article 304(b). This challenge, as seen above, has been rejected by the High court for the reason that the appellants business has been in equal measure controlled by the Principal Act itself. The appellants being dealers in molasses, the new definition of the term "molasses", which includes "khandsari sugar", does not subject their business to any greater control.( 11 ) The appellants counsel, Mr G.L. Sanghi contends that the provisions of the Amendment Act, 1973 impose d."ect and immediate restrictions upon the appellants trade. They are a burden on trade and they deter the appellants from trading. They directly affect the freedom of trade and commerce. They are not merely regulatory for the purpose of facilitating the free flow of trade and commerce. They are restrictions hampering trade. They may be justifiable as reasonable restrictions, but being restrictions unsupported by previous sanction of the President, they are nevertheless invalid.( 12 ) Mr C.M. Nayar, appearing for the respondents, on the other hand, contends that the impugned provisions of the Amendment Act, 1973 are regulatory measures enacted to facilitate trade and they do not come within the ban of the proviso to clause (b) of Article 304. These provisions do not require the previous sanction of the President in terms of the proviso to Article 304(b). ( 13 ) Counsel on both sides, in support of the respective contentions, refer to the principle stated by this court in Atiabari Tea Co. Ltd. v. State of Assam, Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan State of Bihar v. Harihar Prasad Debuka and other cases".( 14 ) It is not, and cannot be, disputed that if the impugned provisions are not merely regulatory with a view to facilitating trade, but are in quality and substance restrictive, though reasonable as restrictions can be, and if they in effect constitute a hindrance or impediment to the free flow or movement of trade, they are unconstitutional in the absence of previous sanction of the President. The question, however, is, the Principal Act, being an "existing law" and, therefore, beyond challenge, do the impugned provisions, introduced in 1973, being additional provisions, enlarge in substance and quality the scope and ambit of the Principal Act, thereby impeding in greater measure the free flow or movement of trade so as to fall within the ban of the proviso to clause (b) of Article 304 ? In other words, does the Amendment Act, 1973, restrict the appellants business to a greater extent or is it merely clarificatory insofar as, at any rate, the appellants are concerned ?( 15 ) The point then really is, has the amendment made the Act more stringent insofar as the appellants are concerned ? If the answer is negative, as the High court has held, the appellants are not aggrieved, and a cannot, therefore, successfully challenge the Amendment Act.( 16 ) Referring to the principle of contemporanea expositio, Mr Sanghi says that the Act, as it stood before the amendment, was not understood to apply to khandsari unit, and consequently to the business of the appellants, and it became applicable only as a result of the amendment. We do not agree that this submission is right. The High court has, on the basis of the pleadings and other evidence, and with reference to the relevant provisions, categorically held that the Act, as it originally stood, was applicable to the trade of the appellants, and the amendment in effect did not make any difference to them. The High court has found that the appellants were not aggrieved solely by reason of the amendment, and the provisions, as they stood prior to the amendment, applied to them in equal measure. This apart, the amendment, in our view, was merely clarificatory, and it was always well understood in trade that khandsari sugar was also sugar, and that any reference to sugar, in the absence of specific exclusion or qualification, was capable of equal application to sugar of all kinds including khandsari. Even if it is true that persons who dealt with the statute understood its provisions in a restricted sense, such mistaken construction of the statute did not bind the court so as to prevent it from giving it its true construction. (See the observation of Lord Blackburn in Trustees of the Clyde Navigation v. Laird and Sons As quoted in National and Grindlays Bank Ltd. v. Municipal Corporation of Greater Bombay.( 17 ) We are of the view that the reasoning of the High court was correct. The Principal Act being an existing law within the meaning of Article 366(10 read with Article 305 of the Constitution, and the provisions of the Amendment Act, 1973 which are impugned in this appeal being clarificatory, the previous sanction of the President was not required. See the principle stated in Syed Ahmed Aga v. State of Mysore. We do not, however, express any view as to whether the impugned Act is regulatory or restrictive, for that question, for the present purpose, is, in our opinion, academic.
### Response:
0
### Explanation:
( 14 ) It is not, and cannot be, disputed that if the impugned provisions are not merely regulatory with a view to facilitating trade, but are in quality and substance restrictive, though reasonable as restrictions can be, and if they in effect constitute a hindrance or impediment to the free flow or movement of trade, they are unconstitutional in the absence of previous sanction of the President. The question, however, is, the Principal Act, being an "existing law" and, therefore, beyond challenge, do the impugned provisions, introduced in 1973, being additional provisions, enlarge in substance and quality the scope and ambit of the Principal Act, thereby impeding in greater measure the free flow or movement of trade so as to fall within the ban of the proviso to clause (b) of Article 304 ? In other words, does the Amendment Act, 1973, restrict the appellants business to a greater extent or is it merely clarificatory insofar as, at any rate, the appellants are concerned ?( 15 ) The point then really is, has the amendment made the Act more stringent insofar as the appellants are concerned ? If the answer is negative, as the High court has held, the appellants are not aggrieved, and a cannot, therefore, successfully challenge the Amendment Act.( 16 ) Referring to the principle of contemporanea expositio, Mr Sanghi says that the Act, as it stood before the amendment, was not understood to apply to khandsari unit, and consequently to the business of the appellants, and it became applicable only as a result of the amendment. We do not agree that this submission is right. The High court has, on the basis of the pleadings and other evidence, and with reference to the relevant provisions, categorically held that the Act, as it originally stood, was applicable to the trade of the appellants, and the amendment in effect did not make any difference to them. The High court has found that the appellants were not aggrieved solely by reason of the amendment, and the provisions, as they stood prior to the amendment, applied to them in equal measure. This apart, the amendment, in our view, was merely clarificatory, and it was always well understood in trade that khandsari sugar was also sugar, and that any reference to sugar, in the absence of specific exclusion or qualification, was capable of equal application to sugar of all kinds including khandsari. Even if it is true that persons who dealt with the statute understood its provisions in a restricted sense, such mistaken construction of the statute did not bind the court so as to prevent it from giving it its true construction. (See the observation of Lord Blackburn in Trustees of the Clyde Navigation v. Laird and Sons As quoted in National and Grindlays Bank Ltd. v. Municipal Corporation of Greater Bombay.( 17 ) We are of the view that the reasoning of the High court was correct. The Principal Act being an existing law within the meaning of Article 366(10 read with Article 305 of the Constitution, and the provisions of the Amendment Act, 1973 which are impugned in this appeal being clarificatory, the previous sanction of the President was not required. See the principle stated in Syed Ahmed Aga v. State of Mysore. We do not, however, express any view as to whether the impugned Act is regulatory or restrictive, for that question, for the present purpose, is, in our opinion, academic.
|
N.P. Verma Vs. Union of India | higher grades, namely, Grades R11 and R12 and the Grade of General Manager. This is not for this Court to say whether the compression should have been made in the lower grades or in the higher grades. By such compression, Grades R6 A and R7 A have been upgraded and the persons placed in those Grades have been benefited by such upgradation. There is much subst ance in the conten- tion made on behalf of HPCL that if compression had been made in the upper grades, there would be much complications and, moreover, such compression in the upper grades was not convenient to be made in view of functional differen ces. The Grade of General Manager cannot be clubbed together with a lower grade. In the circumstances, we are unable to accept the contention of the petitioners that the compression should have been made in the higher grades of CORIL. 18. The most important question that requires consideration is whether in framing the rationalisation scheme HPCL has really made the equation of posts of CORIL with those of ESSO/LIL. It is the 372 positive case of the petitioners that no such equation has been made and the fitment of the officers of CORIL and those of ESSO/LIL in the IOC/HPCL scales of pay have been made without the equation of posts, which is a sine qua non for integration of officers coming from different sources. The petitioners have mainly relied upon the recommendation of the Tandon Committee that General Sales Representative of ESSO has been equated with the post of Retail Development Supervisor of CORIL. In the scheme prepared by HPCL, thepost of General Sales Representative of ESSO and that of Depot Superintendent have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor and Depot Superintendent/Relief Depot Superintendent of CORIL have been placed in the Salary Grou p A of HPCL. 19. As against this, the contention of HPCL is that the two Committees that were appointed by the Chairman of HPCL considered the different methods of fitment and equivalence of different pay-scales of ESSO, LIL and CORIL with the pay-scales of IOC. Except the bare allegation, no material has been produced before us on behalf of HPCL to show that the said Committees had, as a matter of fact, considered the question of equation of posts on the basis of the principle as laid do wn by the Central Government while referring the matter to the Tandon Committee, namely, functional similari- ty and co-equal responsibility. In the affidavits filed on behalf of HPCL, no particulars have been given with regard to the functional equiv alence or otherwise of the different grades of these officers of CORIL, ESSO and LIL. It is also not stated what happened to the consideration by the Govern- ment of the Tandon Committees report. There can be no doubt that the Government is not bound t o accept the recommenda- tion of the Tandon Committee but, at the same time, the equation of posts has to be made on the principle of func- tional equivalence and co-equal responsibility. As no mate- rials have been produced in that regard on beh alf of HPCL, it is difficult for us to hold that the different grades of posts have been compared before placing the officers of these companies in the IOC/HPCL scales of pay. While it is not within the domain of the Court to make the equation o f posts for the purpose of integration, it is surely the concern of the Court to see that before the integration is made and consequent fitment of officers in different grades/scales of pay is effected, there must be an equation of differ ent posts in accordance with the principle stated above. As there is no evidence or material in support of such equation of posts, it is difficult to accept the ra- tionalisation scheme with regard to the placing of theofficers of CORIL in d ifferent IOC/HPCL grades of pay. 20. The petitioners approached the Grievance Committee, but the Grievance Committee did not consider the objections of the petitioners to the said scheme. In our opinion, there is much substance in the contention made on behalf of HPCL that it was not the business of the Grievance Committee to con- sider the propriety or otherwise of the rationalisation scheme, but if any officer has not been placed in the proper grade, the Grievance Committee may place such of ficer in the proper grade in accordance with the rationalisation scheme. 21. Be that as it may, in the view which we take, namely, that there has been no equation of posts, the rationalisa- tion scheme cannot be accepted in full. The prayer of the petitioners in the writ petition is for a declaration that the said scheme is violative of Articles 14 and 16 of the Constitution of India and for a writ, order or direction in the nature of mandamus directing HPCL to remove the discrim- ination aga inst the petitioners in regard to the impugned rationalisation scheme. 22. The question is whether we should set aside the scheme after the lapse of about eight years. During these eight years, by virtue of implementation of the scheme, many changes have taken place with regard to the positions and ranks of the officers of HPCL including the petitioners and to set aside the whole scheme at this stage would surely affect the service structure of HPCL. We are also not obliv- ious of the order of this Court dated July 20, 1984 record- ing the statement made in the affidavit of HPCL that if this Court would ultimately decide the matter in favour of the petitioners, HPCL would accord to them all the benefits which they would be en titled to. That is an undertaking given by HPCL, but we should also look to the interest of several officers of HPCL who would be affected, if the scheme is set aside. 23. | 1[ds]Admittedly, no application was made to this Court by the officers of CORIL praying for stay of the rationalisation scheme within a period of three weeks. Relying on the said order of this Court and also on the fact that no application for stay was made to this Court within the period allowed, it is submitted on behalf of HPCL that the petitioners accepted the rationalisation scheme which is also evidenced by their written acceptance. If they had any objection to the scheme, they would have surely made a representation to this Court in the said Civil Appeal No. 3214 of 1979 which was thenthe writ petition, the petitioners have emphatically denied the allegation of HPCL that discussions were made with individuals and groups of Management Staff of CORIL with regard to the rationalisation scheme. As to the accept- ance of the rationalisation scheme, the case of the peti- tioners is that on July 12, 1980 a news item appeared in the Bombay edition of the Times of India to the effect that under the scheme of rationalisation, the services of nearly 950 officers of HPCL would be terminated, and that suchofficers would simultaneously be re appointed on the basis of public sector salary. In view of the said news, the peti- tioners filed an application in this Court in the said Civil Appeals praying for stay or suspension of the operation of the said offer letter dated July 7, 1980 and fo r restraining HPCL from terminating the services of the Management Staff of CORIL pending the disposal of the Civil Appeals. HPCL filed an affidavit in opposition to the said application of the petitioners to the effect that no decision had bee n taken by HPCL to terminate the services of the officers of CORIL. Accordingly, this Court disposed of the said applica- tion recording that in view of the said affidavit of HPCL, no order was needed to be passed. Further, the case of the petitioner s is that in spite of the said order of this Court, the petitioners still apprehended that HPCL would terminate the services of the petitioners in the event of their refusal to accept the said scheme and, as such, the petitioners under dur ess were forced to signify their con- sent to the saidhave considered the explanation of the petitioner justifying the acceptance of the said offer letter dated July 7, 1988 and the rationalisation scheme sent therewith and also the contention of HPCL in that regard. In our opinion, the apprehension of the petitioners that in the event of their refusal to accept the scheme, their services will be terminated cannot be rejected on the face of it. It may be that there was no reasonable basis for such apprehen- sion, but the plea that because of such apprehension the petitioners had no other alternative than to accept the scheme, cannot be disbelieved. At the same time, we do not also put any blame on HPCL fo r implementing the said scheme which was accepted by the petitioners and other officers of CORIL. Instead of disposing of these writ petitions on this technical grounds, we may proceed to consider the respective contentions of the parties onis the 372 positive case of the petitioners that no such equation has been made and the fitment of the officers of CORIL and those of ESSO/LIL in the IOC/HPCL scales of pay have been made without the equation of posts, which is a sine qua non for integration of officers coming from different sources. The petitioners have mainly relied upon the recommendation of the Tandon Committee that General Sales Representative of ESSO has been equated with the post of Retail Development Supervisor of CORIL. In the scheme prepared by HPCL, thepost of General Sales Representative of ESSO and that of Depot Superintendent have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor and Depot Superintendent/Relief Depot Superintendent of CORIL have been placed in the Salary Grou p A ofthat as it may, in the view which we take, namely, that there has been no equation of posts, the rationalisa- tion scheme cannot be accepted in full. The prayer of the petitioners in the writ petition is for a declaration that the said scheme is violative of Articles 14 and 16 of the Constitution of India and for a writ, order or direction in the nature of mandamus directing HPCL to remove the discrim- ination aga inst the petitioners in regard to the impugned rationalisationthese eight years, by virtue of implementation of the scheme, many changes have taken place with regard to the positions and ranks of the officers of HPCL including the petitioners and to set aside the whole scheme at this stage would surely affect the service structure of HPCL. We are also not obliv- ious of the order of this Court dated July 20, 1984 record- ing the statement made in the affidavit of HPCL that if this Court would ultimately decide the matter in favour of the petitioners, HPCL would accord to them all the benefits which they would be en titled to. That is an undertaking given by HPCL, but we should also look to the interest of several officers of HPCL who would be affected, if the scheme is set aside. | 1 | 3,958 | 951 | ### 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:
higher grades, namely, Grades R11 and R12 and the Grade of General Manager. This is not for this Court to say whether the compression should have been made in the lower grades or in the higher grades. By such compression, Grades R6 A and R7 A have been upgraded and the persons placed in those Grades have been benefited by such upgradation. There is much subst ance in the conten- tion made on behalf of HPCL that if compression had been made in the upper grades, there would be much complications and, moreover, such compression in the upper grades was not convenient to be made in view of functional differen ces. The Grade of General Manager cannot be clubbed together with a lower grade. In the circumstances, we are unable to accept the contention of the petitioners that the compression should have been made in the higher grades of CORIL. 18. The most important question that requires consideration is whether in framing the rationalisation scheme HPCL has really made the equation of posts of CORIL with those of ESSO/LIL. It is the 372 positive case of the petitioners that no such equation has been made and the fitment of the officers of CORIL and those of ESSO/LIL in the IOC/HPCL scales of pay have been made without the equation of posts, which is a sine qua non for integration of officers coming from different sources. The petitioners have mainly relied upon the recommendation of the Tandon Committee that General Sales Representative of ESSO has been equated with the post of Retail Development Supervisor of CORIL. In the scheme prepared by HPCL, thepost of General Sales Representative of ESSO and that of Depot Superintendent have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor and Depot Superintendent/Relief Depot Superintendent of CORIL have been placed in the Salary Grou p A of HPCL. 19. As against this, the contention of HPCL is that the two Committees that were appointed by the Chairman of HPCL considered the different methods of fitment and equivalence of different pay-scales of ESSO, LIL and CORIL with the pay-scales of IOC. Except the bare allegation, no material has been produced before us on behalf of HPCL to show that the said Committees had, as a matter of fact, considered the question of equation of posts on the basis of the principle as laid do wn by the Central Government while referring the matter to the Tandon Committee, namely, functional similari- ty and co-equal responsibility. In the affidavits filed on behalf of HPCL, no particulars have been given with regard to the functional equiv alence or otherwise of the different grades of these officers of CORIL, ESSO and LIL. It is also not stated what happened to the consideration by the Govern- ment of the Tandon Committees report. There can be no doubt that the Government is not bound t o accept the recommenda- tion of the Tandon Committee but, at the same time, the equation of posts has to be made on the principle of func- tional equivalence and co-equal responsibility. As no mate- rials have been produced in that regard on beh alf of HPCL, it is difficult for us to hold that the different grades of posts have been compared before placing the officers of these companies in the IOC/HPCL scales of pay. While it is not within the domain of the Court to make the equation o f posts for the purpose of integration, it is surely the concern of the Court to see that before the integration is made and consequent fitment of officers in different grades/scales of pay is effected, there must be an equation of differ ent posts in accordance with the principle stated above. As there is no evidence or material in support of such equation of posts, it is difficult to accept the ra- tionalisation scheme with regard to the placing of theofficers of CORIL in d ifferent IOC/HPCL grades of pay. 20. The petitioners approached the Grievance Committee, but the Grievance Committee did not consider the objections of the petitioners to the said scheme. In our opinion, there is much substance in the contention made on behalf of HPCL that it was not the business of the Grievance Committee to con- sider the propriety or otherwise of the rationalisation scheme, but if any officer has not been placed in the proper grade, the Grievance Committee may place such of ficer in the proper grade in accordance with the rationalisation scheme. 21. Be that as it may, in the view which we take, namely, that there has been no equation of posts, the rationalisa- tion scheme cannot be accepted in full. The prayer of the petitioners in the writ petition is for a declaration that the said scheme is violative of Articles 14 and 16 of the Constitution of India and for a writ, order or direction in the nature of mandamus directing HPCL to remove the discrim- ination aga inst the petitioners in regard to the impugned rationalisation scheme. 22. The question is whether we should set aside the scheme after the lapse of about eight years. During these eight years, by virtue of implementation of the scheme, many changes have taken place with regard to the positions and ranks of the officers of HPCL including the petitioners and to set aside the whole scheme at this stage would surely affect the service structure of HPCL. We are also not obliv- ious of the order of this Court dated July 20, 1984 record- ing the statement made in the affidavit of HPCL that if this Court would ultimately decide the matter in favour of the petitioners, HPCL would accord to them all the benefits which they would be en titled to. That is an undertaking given by HPCL, but we should also look to the interest of several officers of HPCL who would be affected, if the scheme is set aside. 23.
### Response:
1
### Explanation:
Admittedly, no application was made to this Court by the officers of CORIL praying for stay of the rationalisation scheme within a period of three weeks. Relying on the said order of this Court and also on the fact that no application for stay was made to this Court within the period allowed, it is submitted on behalf of HPCL that the petitioners accepted the rationalisation scheme which is also evidenced by their written acceptance. If they had any objection to the scheme, they would have surely made a representation to this Court in the said Civil Appeal No. 3214 of 1979 which was thenthe writ petition, the petitioners have emphatically denied the allegation of HPCL that discussions were made with individuals and groups of Management Staff of CORIL with regard to the rationalisation scheme. As to the accept- ance of the rationalisation scheme, the case of the peti- tioners is that on July 12, 1980 a news item appeared in the Bombay edition of the Times of India to the effect that under the scheme of rationalisation, the services of nearly 950 officers of HPCL would be terminated, and that suchofficers would simultaneously be re appointed on the basis of public sector salary. In view of the said news, the peti- tioners filed an application in this Court in the said Civil Appeals praying for stay or suspension of the operation of the said offer letter dated July 7, 1980 and fo r restraining HPCL from terminating the services of the Management Staff of CORIL pending the disposal of the Civil Appeals. HPCL filed an affidavit in opposition to the said application of the petitioners to the effect that no decision had bee n taken by HPCL to terminate the services of the officers of CORIL. Accordingly, this Court disposed of the said applica- tion recording that in view of the said affidavit of HPCL, no order was needed to be passed. Further, the case of the petitioner s is that in spite of the said order of this Court, the petitioners still apprehended that HPCL would terminate the services of the petitioners in the event of their refusal to accept the said scheme and, as such, the petitioners under dur ess were forced to signify their con- sent to the saidhave considered the explanation of the petitioner justifying the acceptance of the said offer letter dated July 7, 1988 and the rationalisation scheme sent therewith and also the contention of HPCL in that regard. In our opinion, the apprehension of the petitioners that in the event of their refusal to accept the scheme, their services will be terminated cannot be rejected on the face of it. It may be that there was no reasonable basis for such apprehen- sion, but the plea that because of such apprehension the petitioners had no other alternative than to accept the scheme, cannot be disbelieved. At the same time, we do not also put any blame on HPCL fo r implementing the said scheme which was accepted by the petitioners and other officers of CORIL. Instead of disposing of these writ petitions on this technical grounds, we may proceed to consider the respective contentions of the parties onis the 372 positive case of the petitioners that no such equation has been made and the fitment of the officers of CORIL and those of ESSO/LIL in the IOC/HPCL scales of pay have been made without the equation of posts, which is a sine qua non for integration of officers coming from different sources. The petitioners have mainly relied upon the recommendation of the Tandon Committee that General Sales Representative of ESSO has been equated with the post of Retail Development Supervisor of CORIL. In the scheme prepared by HPCL, thepost of General Sales Representative of ESSO and that of Depot Superintendent have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor and Depot Superintendent/Relief Depot Superintendent of CORIL have been placed in the Salary Grou p A ofthat as it may, in the view which we take, namely, that there has been no equation of posts, the rationalisa- tion scheme cannot be accepted in full. The prayer of the petitioners in the writ petition is for a declaration that the said scheme is violative of Articles 14 and 16 of the Constitution of India and for a writ, order or direction in the nature of mandamus directing HPCL to remove the discrim- ination aga inst the petitioners in regard to the impugned rationalisationthese eight years, by virtue of implementation of the scheme, many changes have taken place with regard to the positions and ranks of the officers of HPCL including the petitioners and to set aside the whole scheme at this stage would surely affect the service structure of HPCL. We are also not obliv- ious of the order of this Court dated July 20, 1984 record- ing the statement made in the affidavit of HPCL that if this Court would ultimately decide the matter in favour of the petitioners, HPCL would accord to them all the benefits which they would be en titled to. That is an undertaking given by HPCL, but we should also look to the interest of several officers of HPCL who would be affected, if the scheme is set aside.
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Harbhajan Singh Vs. Karam Singh And Others | same principle has been reiterated by this Court recently in Patel Chunibhai Dajibhai v. Narayanrao Khanderao Jambekar, Judgment in C. As. Nos. 791 to 798 of 1964, D/-3-12-1964 : (AIR 1965 SC 1457 ). In that case... respondent No. 1 was a landlord and the appellant was a tenant. On May 1, 1956, respondent No. 1 gave a notice to the appellant under S. 14 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) terminating his tenancy. On December 25, 1956 respondent No. 1 gave another notice to the appellant under S. 31 terminating the tenancy. On July 10, 1958, respondent No. 1 filed an application under S. 29 read with S.14 for recovery of possession of the lands. By an order dated December 25, 1957 the Mahalkari allowed respondent No. 1s application under S. 29 read with S. 14 filed on July 10, 1957, and directed that the tenancy be terminated and possession of the lands be delivered to respondent No. 1. The appellant applied to the Collector of Boroda on August 9, 1958 and again on August 26, 1958 under S. 17-A for revision of the Mahalkaris order dated December 25, 1957. On or about August 14, 1958, the Collector called for the records from the Mahalkari, but the records did not reach the office of the Collector until December 24, 1958. On or about October 3, 1958 the Collector rejected these revision applications. On October 6, 1958 the appellant again applied to the Collector for revision of the Mahalkaris order, but this application also was disposed of by the Collector on October 17, 1958. On November 7, 1958, the local Congress Mandal Samiti passed an resolution requesting the Collector to reconsider his previous orders. A copy of this resolution was sent to the Collector on November 10, 1958. On November, 14, 1958, the appellant again applied to the Collector under S. 76-A for revision of the Mahalkaris order. On February 17,1959, the Collector acting under S. 76-A reversed the Mahalkaris order and directed that possession of the disputed lands be restored to the appellant. S. 76-A of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) provide as follows :"Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government at any time,- (a) call for the record of any enquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and (b) pass such order thereon as he deems fit : Provided that no such record shall be called for after the expiry of one year from the date of such order and no order to such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. An application for revision preferred by respondent No. 1 on March 24, 1959 was dismissed by the Tribunal on February 23, 1961. An application under Art. 227 of the Constitution preferred by respondent No. 1 on June 15, 1961 was allowed by the High Court on November 5, 1963. In this state of facts, it was held by this Court that in the absence of any power of review the Collector has no power to reconsider his previous decisions dated October 3, October 4 and October 17, 1958 and the subsequent order of the Collector dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The majority judgment of this Court states:"Though S. 76-A, unlike S. 76, does not provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under S. 76-A. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record, the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders, the Collector decided that there was no ground for interference with the Mahalkaris order. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S. 76-A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the 2nd respondent. These orders passed by the Collector in the exercise of his revisional powers were quasi judicial, and were final. The Act does not empower the Collector to review an order passed by him under S. 76-A. In the absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 re-opening the matter was illegal ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground. 8. We are of the opinion that the same principle applies to the present case and the Director, Consolidation of Holdings had no power to review his previous order dated 3rd April, 1958 rejecting the application of Harbhajan Singh under S. 42 of the Act.It follows that the subsequent order of the Director, Consolidation of Holdings dated 29th August, 1958 allowing the application of Harbhajan Singh was ultra vires and illegal and was rightly quashed by the High Court. | 0[ds]ew v. Willis, 1891-1 QB, Lord Esher, M. R. pointed out thatno court (and I would add no authority) has... a power of setting aside an order which has been properly made, unless it is given by statuteIn another caseHession v. Jones, 1914-2 KB, Bankes, J. pointed out that the court, under the statute, has no power to review an order deliberately made after argument and to entertain a fresh argument upon it with a view to ultimately confirming or reversing it and observed :"Then as to the inherent jurisdiction of the Court. Before the Judicature Acts the Courts of common law had no jurisdiction whatever to set aside an order which had been made. The Court of Chancery did exercise a certain limited power in this direction. All Courts would have power to make a necessary correction if the order as drawn up did not express the intention of the Court; the Court of Chancery however went somewhat further than that, and would in a proper case recall any decree or order before it was passed and entered; but after it had been drawn up and perfected no Court or Judge had any power to interfere with it. This is clear from the judgment of Thesiger L. J. in the case of in re, St. Nazaire Co., (1879) 12 Ch. D 88.The same principle was laid down by the Madras High Court in Anantharaju Shetty v. Appu Hegade, AIR 1919 Mad 244, in which Seshagiri Aiyar, J. observed :"It is settled law that a case is not open to appeal unless the statute gives such a right. The power to review must also be given by the statute. Prima facie a party who has obtained a decision is entitled to keep it unassailed, unless the Legislature had indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. There is at least as good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another tribunal should not hear an appeal from the Trial Court unless such a power is given to it by statute.The same principle has been affirmed by the Judicial Committee in Baijnath Ram Goenka v. Nand Kumar Singh, 40 Ind App 54 (PC), in which a mahal was sold for arrears of revenue. Two appeals to annul the sale were preferred to the Commissioner underthe Bengal Land Revenue Sales Act, 1859, S. 33, as amended bythe Bengal Land Revenue Sales Act, 1868. One of these appeals was by the respondent, a co-sharer of the mahal, and was dismissed on the ground that the auction purchaser had not been made a defendant. A Second Appeal was preferred by the other co-sharers in the mahal, and in this appeal the Commissioner, on March 23, 1900, made an order annulling the sale on the ground of an irregularity in the sale notice. This order related to the entire mahal. On June 21, 1900, the Commissioner having come to the conclusion that his order of March 23, 1900, was wrong in law, reviewed it, and made an order upholding the sale. The respondent thereupon brought the suit giving rise to the appeal to the Judicial Committee praying for a declaration that the order of June 21, 1900, was ultra vires and illegal. The Additional Subordinate Judge declared that the order setting aside the sale was a final order and was not open to review. The High Court concurred with the decision of the Additional Subordinate Judge. While dismissing the appeal of the defendant-appellant, Lord Atkinson said :"Their Lordships are clearly of opinion that the order of March 23, 1900, was final and conclusive, and that, so far as the Commissioner was concerned, he had no power to review that order in the way in which he has reviewed it.The same principle has been reiterated by this Court recently in Patel Chunibhai Dajibhai v. Narayanrao Khanderao Jambekar, Judgment in C. As. Nos. 791 to 798 of 1964, D/-3-12-1964 : (AIR 1965 SC 1457 ). In that case... respondent No. 1 was a landlord and the appellant was a tenant. On May 1, 1956, respondent No. 1 gave a notice to the appellant under S. 14 ofthe Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) terminating his tenancy. On December 25, 1956 respondent No. 1 gave another notice to the appellant under S. 31 terminating the tenancy. On July 10, 1958, respondent No. 1 filed an application under S. 29 read with S.14 for recovery of possession of the lands. By an order dated December 25, 1957 the Mahalkari allowed respondent No. 1s application under S. 29 read with S. 14 filed on July 10, 1957, and directed that the tenancy be terminated and possession of the lands be delivered to respondent No. 1. The appellant applied to the Collector of Boroda on August 9, 1958 and again on August 26, 1958 under S. 17-A for revision of the Mahalkaris order dated December 25, 1957. On or about August 14, 1958, the Collector called for the records from the Mahalkari, but the records did not reach the office of the Collector until December 24, 1958. On or about October 3, 1958 the Collector rejected these revision applications. On October 6, 1958 the appellant again applied to the Collector for revision of the Mahalkaris order, but this application also was disposed of by the Collector on October 17, 1958. On November 7, 1958, the local Congress Mandal Samiti passed an resolution requesting the Collector to reconsider his previous orders. A copy of this resolution was sent to the Collector on November 10, 1958. On November, 14, 1958, the appellant again applied to the Collector under S. 76-A for revision of the Mahalkaris order. On February 17,1959, the Collector acting under S. 76-A reversed the Mahalkaris order and directed that possession of the disputed lands be restored to the appellant. S. 76-A ofthe Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) provide as follows :"Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government at any time,-(a) call for the record of any enquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and(b) pass such order thereon as he deems fit :Provided that no such record shall be called for after the expiry of one year from the date of such order and no order to such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard.An application for revision preferred by respondent No. 1 on March 24, 1959 was dismissed by the Tribunal on February 23, 1961. An application under Art. 227 of the Constitution preferred by respondent No. 1 on June 15, 1961 was allowed by the High Court on November 5, 1963. In this state of facts, it was held by this Court that in the absence of any power of review the Collector has no power to reconsider his previous decisions dated October 3, October 4 and October 17, 1958 and the subsequent order of the Collector dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The majority judgment of this Court states:"Though S. 76-A, unlike S. 76, does not provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under S. 76-A. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record, the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders, the Collector decided that there was no ground for interference with the Mahalkaris orderAll these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S. 76-A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the 2nd respondent. These orders passed by the Collector in the exercise of his revisional powers were quasi judicial, and were final. The Act does not empower the Collector to review an order passed by him under S. 76-A. In the absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 re-opening the matter was illegal ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground.8. We are of the opinion that the same principle applies to the present case and the Director, Consolidation of Holdings had no power to review his previous order dated 3rd April, 1958 rejecting the application of Harbhajan Singh under S. 42 of the Act.It follows that the subsequent order of the Director, Consolidation of Holdings dated 29th August, 1958 allowing the application of Harbhajan Singh was ultra vires and illegal and was rightly quashed by the High Court. | 0 | 2,749 | 1,851 | ### 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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same principle has been reiterated by this Court recently in Patel Chunibhai Dajibhai v. Narayanrao Khanderao Jambekar, Judgment in C. As. Nos. 791 to 798 of 1964, D/-3-12-1964 : (AIR 1965 SC 1457 ). In that case... respondent No. 1 was a landlord and the appellant was a tenant. On May 1, 1956, respondent No. 1 gave a notice to the appellant under S. 14 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) terminating his tenancy. On December 25, 1956 respondent No. 1 gave another notice to the appellant under S. 31 terminating the tenancy. On July 10, 1958, respondent No. 1 filed an application under S. 29 read with S.14 for recovery of possession of the lands. By an order dated December 25, 1957 the Mahalkari allowed respondent No. 1s application under S. 29 read with S. 14 filed on July 10, 1957, and directed that the tenancy be terminated and possession of the lands be delivered to respondent No. 1. The appellant applied to the Collector of Boroda on August 9, 1958 and again on August 26, 1958 under S. 17-A for revision of the Mahalkaris order dated December 25, 1957. On or about August 14, 1958, the Collector called for the records from the Mahalkari, but the records did not reach the office of the Collector until December 24, 1958. On or about October 3, 1958 the Collector rejected these revision applications. On October 6, 1958 the appellant again applied to the Collector for revision of the Mahalkaris order, but this application also was disposed of by the Collector on October 17, 1958. On November 7, 1958, the local Congress Mandal Samiti passed an resolution requesting the Collector to reconsider his previous orders. A copy of this resolution was sent to the Collector on November 10, 1958. On November, 14, 1958, the appellant again applied to the Collector under S. 76-A for revision of the Mahalkaris order. On February 17,1959, the Collector acting under S. 76-A reversed the Mahalkaris order and directed that possession of the disputed lands be restored to the appellant. S. 76-A of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) provide as follows :"Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government at any time,- (a) call for the record of any enquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and (b) pass such order thereon as he deems fit : Provided that no such record shall be called for after the expiry of one year from the date of such order and no order to such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. An application for revision preferred by respondent No. 1 on March 24, 1959 was dismissed by the Tribunal on February 23, 1961. An application under Art. 227 of the Constitution preferred by respondent No. 1 on June 15, 1961 was allowed by the High Court on November 5, 1963. In this state of facts, it was held by this Court that in the absence of any power of review the Collector has no power to reconsider his previous decisions dated October 3, October 4 and October 17, 1958 and the subsequent order of the Collector dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The majority judgment of this Court states:"Though S. 76-A, unlike S. 76, does not provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under S. 76-A. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record, the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders, the Collector decided that there was no ground for interference with the Mahalkaris order. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S. 76-A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the 2nd respondent. These orders passed by the Collector in the exercise of his revisional powers were quasi judicial, and were final. The Act does not empower the Collector to review an order passed by him under S. 76-A. In the absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 re-opening the matter was illegal ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground. 8. We are of the opinion that the same principle applies to the present case and the Director, Consolidation of Holdings had no power to review his previous order dated 3rd April, 1958 rejecting the application of Harbhajan Singh under S. 42 of the Act.It follows that the subsequent order of the Director, Consolidation of Holdings dated 29th August, 1958 allowing the application of Harbhajan Singh was ultra vires and illegal and was rightly quashed by the High Court.
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### Explanation:
way in which he has reviewed it.The same principle has been reiterated by this Court recently in Patel Chunibhai Dajibhai v. Narayanrao Khanderao Jambekar, Judgment in C. As. Nos. 791 to 798 of 1964, D/-3-12-1964 : (AIR 1965 SC 1457 ). In that case... respondent No. 1 was a landlord and the appellant was a tenant. On May 1, 1956, respondent No. 1 gave a notice to the appellant under S. 14 ofthe Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) terminating his tenancy. On December 25, 1956 respondent No. 1 gave another notice to the appellant under S. 31 terminating the tenancy. On July 10, 1958, respondent No. 1 filed an application under S. 29 read with S.14 for recovery of possession of the lands. By an order dated December 25, 1957 the Mahalkari allowed respondent No. 1s application under S. 29 read with S. 14 filed on July 10, 1957, and directed that the tenancy be terminated and possession of the lands be delivered to respondent No. 1. The appellant applied to the Collector of Boroda on August 9, 1958 and again on August 26, 1958 under S. 17-A for revision of the Mahalkaris order dated December 25, 1957. On or about August 14, 1958, the Collector called for the records from the Mahalkari, but the records did not reach the office of the Collector until December 24, 1958. On or about October 3, 1958 the Collector rejected these revision applications. On October 6, 1958 the appellant again applied to the Collector for revision of the Mahalkaris order, but this application also was disposed of by the Collector on October 17, 1958. On November 7, 1958, the local Congress Mandal Samiti passed an resolution requesting the Collector to reconsider his previous orders. A copy of this resolution was sent to the Collector on November 10, 1958. On November, 14, 1958, the appellant again applied to the Collector under S. 76-A for revision of the Mahalkaris order. On February 17,1959, the Collector acting under S. 76-A reversed the Mahalkaris order and directed that possession of the disputed lands be restored to the appellant. S. 76-A ofthe Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) provide as follows :"Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government at any time,-(a) call for the record of any enquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and(b) pass such order thereon as he deems fit :Provided that no such record shall be called for after the expiry of one year from the date of such order and no order to such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard.An application for revision preferred by respondent No. 1 on March 24, 1959 was dismissed by the Tribunal on February 23, 1961. An application under Art. 227 of the Constitution preferred by respondent No. 1 on June 15, 1961 was allowed by the High Court on November 5, 1963. In this state of facts, it was held by this Court that in the absence of any power of review the Collector has no power to reconsider his previous decisions dated October 3, October 4 and October 17, 1958 and the subsequent order of the Collector dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The majority judgment of this Court states:"Though S. 76-A, unlike S. 76, does not provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under S. 76-A. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record, the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders, the Collector decided that there was no ground for interference with the Mahalkaris orderAll these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S. 76-A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the 2nd respondent. These orders passed by the Collector in the exercise of his revisional powers were quasi judicial, and were final. The Act does not empower the Collector to review an order passed by him under S. 76-A. In the absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 re-opening the matter was illegal ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground.8. We are of the opinion that the same principle applies to the present case and the Director, Consolidation of Holdings had no power to review his previous order dated 3rd April, 1958 rejecting the application of Harbhajan Singh under S. 42 of the Act.It follows that the subsequent order of the Director, Consolidation of Holdings dated 29th August, 1958 allowing the application of Harbhajan Singh was ultra vires and illegal and was rightly quashed by the High Court.
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M/S GARMENT CRAFT Vs. PRAKASH CHAND GOEL | appeared on 04.11.2016 due to which DE was closed. Hence in these circumstances, in my view there is sufficient ground to set aside the order dated 04.11.2016 closing DE in the interest of justice. 17. Thereupon, the respondent preferred a miscellaneous petition under Article 227 of the Constitution of India, which vide the impugned order dated 4th July 2019 has been allowed primarily for the reason that the counsel for the appellant had applied and taken certified copy of the judgment dated 8th November 2016 in December, 2016 which shows that the appellant was represented by his counsel even at that stage. The contention of the appellant that he acquired knowledge of the decree only after his release from custody on 6 th May 2017 was wrong. In view of the aforesaid facts, the trial court should not have accepted the argument that the appellant and his counsel were not in communication during the period when the appellant was in judicial custody. Earlier, the application for reopening the defence evidence was filed by pairokar of the appellant. 18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal (Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217) . The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 has observed:- 6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to. 19. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution. | 1[ds]18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal (Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217) . The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 has observed:-6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.19. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution. | 1 | 3,195 | 883 | ### 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:
appeared on 04.11.2016 due to which DE was closed. Hence in these circumstances, in my view there is sufficient ground to set aside the order dated 04.11.2016 closing DE in the interest of justice. 17. Thereupon, the respondent preferred a miscellaneous petition under Article 227 of the Constitution of India, which vide the impugned order dated 4th July 2019 has been allowed primarily for the reason that the counsel for the appellant had applied and taken certified copy of the judgment dated 8th November 2016 in December, 2016 which shows that the appellant was represented by his counsel even at that stage. The contention of the appellant that he acquired knowledge of the decree only after his release from custody on 6 th May 2017 was wrong. In view of the aforesaid facts, the trial court should not have accepted the argument that the appellant and his counsel were not in communication during the period when the appellant was in judicial custody. Earlier, the application for reopening the defence evidence was filed by pairokar of the appellant. 18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal (Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217) . The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 has observed:- 6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to. 19. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution.
### Response:
1
### Explanation:
18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal (Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217) . The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 has observed:-6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.19. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution.
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B.S.N.L. Vs. M/S. Subash Chandra Kanchan | therefore Section 15(2) would be attracted and a substitute arbitrator has to be appointed according to the rules that are applicable for the appointment of the arbitrator to be replaced. Therefore, what Section 15(2) contemplates is an appointment of the substituted arbitrator or the replacing of the arbitrator by another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term rules in Section 15(2) obviously referred to the provision for appointment, contained in the arbitration agreement or any Rules of any Institution under which the disputes were referred to arbitration. There was no failure on the part of the concerned party as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the concerned person had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the Scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. We are not in a position to agree with the contrary view taken by some of the High Courts. 16. But, herein the issue is entirely different. Apart from failure on the part of the Managing Director of the Appellant to appoint an arbitrator within the specified time, the Appellants evidently waived their right under the arbitration agreement. Mr. Sharmas submission to the effect that the learned counsel who consented to the appointment of Shri Bhattacharya was a junior counsel and he had no instructions in this behalf cannot be accepted. No such statement was made before the High Court. It had never been contended before the High Court that the counsel had no authority to make such concession. Moreover, the application filed under Section 151 of the Code of Civil Procedure by the Appellant did not contain such statements. The High Court, thus, did not commit any error in recording that such a concession had in fact been made by the learned counsel. In a matter of this nature again, the High Courts decision subject to just exception must be held to be final. 17. Furthermore, in terms of Order III, Rule 1 of the Code of Civil Procedure, a litigant is represented by an advocate. A concession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again subject to just exceptions, they cannot at a later stage resile therefrom. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal question may not be binding upon his client. Here, however, despite the stand taken by the Appellant in its written statement before the High Court the learned Advocate consented to appointment of a person as an arbitrator by the High Court in exercise of its jurisdiction under Section 11 of the 1996 Act, in our considered view, the same should not be permitted to be resiled from. A person may have a legal right but if the same is waived, enforcement thereof cannot be insisted. 18. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [2006 (8) SCALE 631 ], this Court observed: The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant-Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well-settled that what cannot be done directly cannot be done indirectly. The term Waiver has been described in the following words: Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsburys Laws (4th edn) para 1471] Waiver may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel. [See 45 Halsburys Laws (4th edn.) para 1269] In Indu Shekhar Singh and Ors. v. State of U.P. and Ors. 2006 (5) SCALE 107 , this Court held: They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal 19. | 0[ds]But, herein the issue is entirely different. Apart from failure on the part of the Managing Director of the Appellant to appoint an arbitrator within the specified time, the Appellants evidently waived their right under the arbitration agreement. Mr. Sharmas submission to the effect that the learned counsel who consented to the appointment of Shri Bhattacharya was a junior counsel and he had no instructions in this behalf cannot be accepted. No such statement was made before the High Court. It had never been contended before the High Court that the counsel had no authority to make such concession. Moreover, the application filed under Section 151 of the Code of Civil Procedure by the Appellant did not contain such statements. The High Court, thus, did not commit any error in recording that such a concession had in fact been made by the learned counsel. In a matter of this nature again, the High Courts decision subject to just exception must be held to be finalFurthermore, in terms of Order III, Rule 1 of the Code of Civil Procedure, a litigant is represented by an advocate. A concession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again subject to just exceptions, they cannot at a later stage resile therefrom. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal question may not be binding upon his client. Here, however, despite the stand taken by the Appellant in its written statement before the High Court the learned Advocate consented to appointment of a person as an arbitrator by the High Court in exercise of its jurisdiction under Section 11 of the 1996 Act, in our considered view, the same should not be permitted to be resiled from. A person may have a legal right but if the same is waived, enforcement thereof cannot be insisted. | 0 | 3,038 | 365 | ### 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:
therefore Section 15(2) would be attracted and a substitute arbitrator has to be appointed according to the rules that are applicable for the appointment of the arbitrator to be replaced. Therefore, what Section 15(2) contemplates is an appointment of the substituted arbitrator or the replacing of the arbitrator by another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term rules in Section 15(2) obviously referred to the provision for appointment, contained in the arbitration agreement or any Rules of any Institution under which the disputes were referred to arbitration. There was no failure on the part of the concerned party as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the concerned person had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the Scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. We are not in a position to agree with the contrary view taken by some of the High Courts. 16. But, herein the issue is entirely different. Apart from failure on the part of the Managing Director of the Appellant to appoint an arbitrator within the specified time, the Appellants evidently waived their right under the arbitration agreement. Mr. Sharmas submission to the effect that the learned counsel who consented to the appointment of Shri Bhattacharya was a junior counsel and he had no instructions in this behalf cannot be accepted. No such statement was made before the High Court. It had never been contended before the High Court that the counsel had no authority to make such concession. Moreover, the application filed under Section 151 of the Code of Civil Procedure by the Appellant did not contain such statements. The High Court, thus, did not commit any error in recording that such a concession had in fact been made by the learned counsel. In a matter of this nature again, the High Courts decision subject to just exception must be held to be final. 17. Furthermore, in terms of Order III, Rule 1 of the Code of Civil Procedure, a litigant is represented by an advocate. A concession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again subject to just exceptions, they cannot at a later stage resile therefrom. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal question may not be binding upon his client. Here, however, despite the stand taken by the Appellant in its written statement before the High Court the learned Advocate consented to appointment of a person as an arbitrator by the High Court in exercise of its jurisdiction under Section 11 of the 1996 Act, in our considered view, the same should not be permitted to be resiled from. A person may have a legal right but if the same is waived, enforcement thereof cannot be insisted. 18. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [2006 (8) SCALE 631 ], this Court observed: The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant-Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well-settled that what cannot be done directly cannot be done indirectly. The term Waiver has been described in the following words: Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsburys Laws (4th edn) para 1471] Waiver may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel. [See 45 Halsburys Laws (4th edn.) para 1269] In Indu Shekhar Singh and Ors. v. State of U.P. and Ors. 2006 (5) SCALE 107 , this Court held: They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal 19.
### Response:
0
### Explanation:
But, herein the issue is entirely different. Apart from failure on the part of the Managing Director of the Appellant to appoint an arbitrator within the specified time, the Appellants evidently waived their right under the arbitration agreement. Mr. Sharmas submission to the effect that the learned counsel who consented to the appointment of Shri Bhattacharya was a junior counsel and he had no instructions in this behalf cannot be accepted. No such statement was made before the High Court. It had never been contended before the High Court that the counsel had no authority to make such concession. Moreover, the application filed under Section 151 of the Code of Civil Procedure by the Appellant did not contain such statements. The High Court, thus, did not commit any error in recording that such a concession had in fact been made by the learned counsel. In a matter of this nature again, the High Courts decision subject to just exception must be held to be finalFurthermore, in terms of Order III, Rule 1 of the Code of Civil Procedure, a litigant is represented by an advocate. A concession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again subject to just exceptions, they cannot at a later stage resile therefrom. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal question may not be binding upon his client. Here, however, despite the stand taken by the Appellant in its written statement before the High Court the learned Advocate consented to appointment of a person as an arbitrator by the High Court in exercise of its jurisdiction under Section 11 of the 1996 Act, in our considered view, the same should not be permitted to be resiled from. A person may have a legal right but if the same is waived, enforcement thereof cannot be insisted.
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Om Prakash & Others Vs. Union of India & Others | the Appellants had sought for and obtained information and in so far as Shud Kars are concerned they were informed that they were destroyed after 6 years and that no Shud Kars were available for the year 1947 or before and on the 4th occasion when again information was sought for with respect to these Shud Kar as stated earlier the Deputy Commissioner for India in Pakistan had replied that the Pakistan authorities were not co-operative in such matters.10. It may be observed that nowhere was it urged that neither the Fard Taqsim nor the Khasra Girdawari were not important revenue records nor that they do not disclose the classification of the land or source of irrigation. What was urged was that the records sent by the Pakistan Government were not reliable. We do not think that the contention that Fard Taqsim and Khasra Girdawari are not important documents is justified nor can it be said that it is not possible to say what is the nature, extent or quality of the land. The learned Advocate has referred us to page 49 of Land Resettlement Manual by Tirlok Singh which is said to be a standard work. It is therein stated that for class of land the entry in the Jamabandi is to be followed strictly.11. Even the earlier references in the book show that the entries in the Jamabandi did not give all the necessary details and therefore certain directions had to be given.It is also evidence that details regarding the extent distribution and classification of land could be obtained from Fard Taqsim which is also an important Revenue record.12. A reference to the Punjab Land Revenue Act, 1887 would show that a Jamabandi is a Register of holding of owners and tenants prepared pursuant to Section 31 (2) of the Punjab Land Revenue Act, 1887. Under Sections 31 to 40 of the said Act record of rights and annual records are prepared. Jamabandi is part of the standing record maintained under Section 31 (2). A standing record is one framed at a settlement made before the said Act was passed or in pursuance of a notification issued under Section 32 of the Act and is considered to be a convenient way of distinguishing it from the annual record, an amended edition of the record-of-rights prepared for each estate yearly or at such intervals as the Financial Commissioner may prescribe in which all changes which have occurred since the standing record was framed are, or should be, incorporated. The form in which the Jamabandi is to be maintained is given in Land Revenue Rule 72 in which one of the particulars to be given in Column 6 is the "well or other means of irrigation" for the particular land. Khasra Girdawari is a harvest inspection book. This is given in the Punjab Land Records manual. Column 5 requires the class of land according to last Jamabandi to be shown. A new Khasra Girdawari will be brought into use when a new quadrennial Jamabandi has been prepared. While Fard Taqsim prepared under the Rules for the preparation and maintenance of Fard Taqsim arazi matruka made in exercise of the powers conferred by Section 46 of the said Act. The Fard Taqsim arazi matruka of the village would show that Column 7 requires the "well or other sources of irrigation" to be stated, just in the same way as in the Jamabandi Col 6. (The relevant particulars and forms of Jamabandi, Khasra Girdawari and Fard Taqsim are at pages 199-200, 361 to 367 and 305-306 respectively of the Punjab Land Revenue Act 1887 v Edition-1963 by Aggarawala).We are however, not concerned with the various aspects of these records as it is not necessary for us to consider them in this case except to the extent necessary namely to show that a Fard Taqsim is as important a document as Jamabandi and gives in so far as this case is concerned the relevant data for determining whether the land owned and left by the Appellants father was entirely canal land. Both the Section Officer- cum-Managing Officer as well as the Chief Settlement Commissioner therefore, were right in placing reliance on the Fard Taqsim and Khasra Girdawari to come to the conclusion that the entire land belonging to the Appellants father was not canal irrigated, and therefore, what was allotted was 15-17 1/2 standard acres in excess.13. Even from the order in Revision of the Central Government, Department of Rehabilitation dated 3-3-1966 it is apparent that the Appellants had again pressed before him similar contentions to those urged before the Chief Settlement Commissioner. Shri Nair in a detailed order while dismissing the revision observed:"as regards the plea that yet another opportunity may be given to the petitioners to produce some documentary evidence I am of the opinion that in the circumstances explained by the Chief Settlement Commissioner (R) it will hardly serve any purpose as the Shud Kar of the Canal Department on which they rely are reported to have been destroyed.However, if there is any cogent documentary proof to establish that the entire land was Nehri, the petitioners can place it before the authorities concerned in order to get their account corrected. As matters stand at present which indicate that all possible efforts were made to obtain the information from Pakistan, I find no illegality or impropriety in the impugned order. The petition is devoid of force and is hereby rejected".14. We consider this order to be fair and reasonable. There is no doubt that it is still open to the Appellants to avail of the opportunity afforded to them to procure and produce such material from which it can be established that the entries in the Fard Taqsim and Khasra Girdawari are not correct or that the lands owned by the Appellants father were canal lands entitling the Appellants to an allotment of 49.2 standard acres. Till then no exception can be taken to the orders passed by the concerned authorities. | 0[ds]This contention in our view has no validity. It is aproposition of law that where a specific power is conferred without prejudice to the generality of the general powers already specified, the particular power is only illustrative and does not in any way restrict the general power.The decision of this Court in Estate Development Ltd. v. Union of India, (1970) 1 SCJ 927 = (AIR 1970 SC 1978 ) did not consider this aspect of the matter and was only concerned with(2) of Section 24 and consequently it is not of much assistance to the Appellants.7. In this view the contention of the learned Advocate that neither the SectionOfficer under Section 19 nor the Chief Settlement Commissioner under Section 24 had jurisdiction to revise their earlier orders, has no force, nor is there any justification in the contention that Respondent 3 could not refer the matter to the Chief Settlement Commissioner for him to exercise the power under Section 24 (1) of the Act.8. On the merits of the case there is no doubt that the initial allotment was made on the assumption that the land belonging to the Appellants father which was left in Pakistan as canal land but as it turned out from the records which the Department of Rehabilitation obtained from the Pakistan Government the lands owned by the Appellants were not entirely canal land but there were included in it Banjar Jadid, Banjar Qadim and Ghair Mumkin land, which did not entitle the Appellants father to allotment of 49.2 Standard Acres but to a lesser extent. In other words the allotment made to the Appellants father initially was1/2 standard acres in excess of the extent to which he was entitled. The Appellant, however, as already stated contests this finding. Thelearned Advocate on their behalf has urged before us that Fard Taqsim and Khasra Girdawari had not correctly indicated either the extent of the land or itsclassification. We do not think this contention is tenable.It may be observed that nowhere was it urged that neither the Fard Taqsim nor the Khasra Girdawari were not important revenue records nor that they do not disclose the classification of the land or source of irrigation. Whatwas urged was that the records sent by the Pakistan Government were not reliable.We do not think that the contention that Fard Taqsim and Khasra Girdawari are not important documents is justified nor can it be said that it is not possible to say what is the nature, extent or quality of the land. The learned Advocate has referred us to page 49 of Land Resettlement Manual by Tirlok Singh which is said to be a standard work. It is therein stated that for class of land the entry in the Jamabandi is to be followed strictly.11. Even the earlier references in the book show that the entries in the Jamabandi did not give all the necessary details and therefore certain directions had to be given.It is also evidence that details regarding the extent distribution and classification of land could be obtained from Fard Taqsim which is also an important Revenueare however, not concerned with the various aspects of these records as it is not necessary for us to consider them in this case except to the extent necessary namely to show that a Fard Taqsim is as important a document as Jamabandi and gives in so far as this case is concerned the relevant data for determining whether the land owned and left by the Appellants father was entirely canal land. Both the Section OfficerOfficer as well as the Chief Settlement Commissioner therefore, were right in placing reliance on the Fard Taqsim and Khasra Girdawari to come to the conclusion that the entire land belonging to the Appellants father was not canal irrigated, and therefore, what was allotted was1/2 standard acres in excess.13. Even from the order in Revision of the Central Government, Department of Rehabilitation datedit is apparent that the Appellants had again pressed before him similar contentions to those urged before the Chief Settlement Commissioner. Shri Nair in a detailed order while dismissing the revisionregards the plea that yet another opportunity may be given to the petitioners to produce some documentary evidence I am of the opinion that in the circumstances explained by the Chief Settlement Commissioner (R) it will hardly serve any purpose as the Shud Kar of the Canal Department on which they rely are reported to have been destroyed.However, if there is any cogent documentary proof to establish that the entire land was Nehri, the petitioners can place it before the authorities concerned in order to get their account corrected. As matters stand at present which indicate that all possible efforts were made to obtain the information from Pakistan, I find no illegality or impropriety in the impugned order. The petition is devoid of force and is hereby rejected".We consider this order to be fair and reasonable. There is no doubt that it is still open to the Appellants to avail of the opportunity afforded to them to procure and produce such material from which it can be established that the entries in the Fard Taqsim and Khasra Girdawari are not correct or that the lands owned by the Appellants father were canal lands entitling the Appellants to an allotment of 49.2 standard acres. Till then no exception can be taken to the orders passed by the concerned authorities. | 0 | 3,255 | 952 | ### 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:
the Appellants had sought for and obtained information and in so far as Shud Kars are concerned they were informed that they were destroyed after 6 years and that no Shud Kars were available for the year 1947 or before and on the 4th occasion when again information was sought for with respect to these Shud Kar as stated earlier the Deputy Commissioner for India in Pakistan had replied that the Pakistan authorities were not co-operative in such matters.10. It may be observed that nowhere was it urged that neither the Fard Taqsim nor the Khasra Girdawari were not important revenue records nor that they do not disclose the classification of the land or source of irrigation. What was urged was that the records sent by the Pakistan Government were not reliable. We do not think that the contention that Fard Taqsim and Khasra Girdawari are not important documents is justified nor can it be said that it is not possible to say what is the nature, extent or quality of the land. The learned Advocate has referred us to page 49 of Land Resettlement Manual by Tirlok Singh which is said to be a standard work. It is therein stated that for class of land the entry in the Jamabandi is to be followed strictly.11. Even the earlier references in the book show that the entries in the Jamabandi did not give all the necessary details and therefore certain directions had to be given.It is also evidence that details regarding the extent distribution and classification of land could be obtained from Fard Taqsim which is also an important Revenue record.12. A reference to the Punjab Land Revenue Act, 1887 would show that a Jamabandi is a Register of holding of owners and tenants prepared pursuant to Section 31 (2) of the Punjab Land Revenue Act, 1887. Under Sections 31 to 40 of the said Act record of rights and annual records are prepared. Jamabandi is part of the standing record maintained under Section 31 (2). A standing record is one framed at a settlement made before the said Act was passed or in pursuance of a notification issued under Section 32 of the Act and is considered to be a convenient way of distinguishing it from the annual record, an amended edition of the record-of-rights prepared for each estate yearly or at such intervals as the Financial Commissioner may prescribe in which all changes which have occurred since the standing record was framed are, or should be, incorporated. The form in which the Jamabandi is to be maintained is given in Land Revenue Rule 72 in which one of the particulars to be given in Column 6 is the "well or other means of irrigation" for the particular land. Khasra Girdawari is a harvest inspection book. This is given in the Punjab Land Records manual. Column 5 requires the class of land according to last Jamabandi to be shown. A new Khasra Girdawari will be brought into use when a new quadrennial Jamabandi has been prepared. While Fard Taqsim prepared under the Rules for the preparation and maintenance of Fard Taqsim arazi matruka made in exercise of the powers conferred by Section 46 of the said Act. The Fard Taqsim arazi matruka of the village would show that Column 7 requires the "well or other sources of irrigation" to be stated, just in the same way as in the Jamabandi Col 6. (The relevant particulars and forms of Jamabandi, Khasra Girdawari and Fard Taqsim are at pages 199-200, 361 to 367 and 305-306 respectively of the Punjab Land Revenue Act 1887 v Edition-1963 by Aggarawala).We are however, not concerned with the various aspects of these records as it is not necessary for us to consider them in this case except to the extent necessary namely to show that a Fard Taqsim is as important a document as Jamabandi and gives in so far as this case is concerned the relevant data for determining whether the land owned and left by the Appellants father was entirely canal land. Both the Section Officer- cum-Managing Officer as well as the Chief Settlement Commissioner therefore, were right in placing reliance on the Fard Taqsim and Khasra Girdawari to come to the conclusion that the entire land belonging to the Appellants father was not canal irrigated, and therefore, what was allotted was 15-17 1/2 standard acres in excess.13. Even from the order in Revision of the Central Government, Department of Rehabilitation dated 3-3-1966 it is apparent that the Appellants had again pressed before him similar contentions to those urged before the Chief Settlement Commissioner. Shri Nair in a detailed order while dismissing the revision observed:"as regards the plea that yet another opportunity may be given to the petitioners to produce some documentary evidence I am of the opinion that in the circumstances explained by the Chief Settlement Commissioner (R) it will hardly serve any purpose as the Shud Kar of the Canal Department on which they rely are reported to have been destroyed.However, if there is any cogent documentary proof to establish that the entire land was Nehri, the petitioners can place it before the authorities concerned in order to get their account corrected. As matters stand at present which indicate that all possible efforts were made to obtain the information from Pakistan, I find no illegality or impropriety in the impugned order. The petition is devoid of force and is hereby rejected".14. We consider this order to be fair and reasonable. There is no doubt that it is still open to the Appellants to avail of the opportunity afforded to them to procure and produce such material from which it can be established that the entries in the Fard Taqsim and Khasra Girdawari are not correct or that the lands owned by the Appellants father were canal lands entitling the Appellants to an allotment of 49.2 standard acres. Till then no exception can be taken to the orders passed by the concerned authorities.
### Response:
0
### Explanation:
This contention in our view has no validity. It is aproposition of law that where a specific power is conferred without prejudice to the generality of the general powers already specified, the particular power is only illustrative and does not in any way restrict the general power.The decision of this Court in Estate Development Ltd. v. Union of India, (1970) 1 SCJ 927 = (AIR 1970 SC 1978 ) did not consider this aspect of the matter and was only concerned with(2) of Section 24 and consequently it is not of much assistance to the Appellants.7. In this view the contention of the learned Advocate that neither the SectionOfficer under Section 19 nor the Chief Settlement Commissioner under Section 24 had jurisdiction to revise their earlier orders, has no force, nor is there any justification in the contention that Respondent 3 could not refer the matter to the Chief Settlement Commissioner for him to exercise the power under Section 24 (1) of the Act.8. On the merits of the case there is no doubt that the initial allotment was made on the assumption that the land belonging to the Appellants father which was left in Pakistan as canal land but as it turned out from the records which the Department of Rehabilitation obtained from the Pakistan Government the lands owned by the Appellants were not entirely canal land but there were included in it Banjar Jadid, Banjar Qadim and Ghair Mumkin land, which did not entitle the Appellants father to allotment of 49.2 Standard Acres but to a lesser extent. In other words the allotment made to the Appellants father initially was1/2 standard acres in excess of the extent to which he was entitled. The Appellant, however, as already stated contests this finding. Thelearned Advocate on their behalf has urged before us that Fard Taqsim and Khasra Girdawari had not correctly indicated either the extent of the land or itsclassification. We do not think this contention is tenable.It may be observed that nowhere was it urged that neither the Fard Taqsim nor the Khasra Girdawari were not important revenue records nor that they do not disclose the classification of the land or source of irrigation. Whatwas urged was that the records sent by the Pakistan Government were not reliable.We do not think that the contention that Fard Taqsim and Khasra Girdawari are not important documents is justified nor can it be said that it is not possible to say what is the nature, extent or quality of the land. The learned Advocate has referred us to page 49 of Land Resettlement Manual by Tirlok Singh which is said to be a standard work. It is therein stated that for class of land the entry in the Jamabandi is to be followed strictly.11. Even the earlier references in the book show that the entries in the Jamabandi did not give all the necessary details and therefore certain directions had to be given.It is also evidence that details regarding the extent distribution and classification of land could be obtained from Fard Taqsim which is also an important Revenueare however, not concerned with the various aspects of these records as it is not necessary for us to consider them in this case except to the extent necessary namely to show that a Fard Taqsim is as important a document as Jamabandi and gives in so far as this case is concerned the relevant data for determining whether the land owned and left by the Appellants father was entirely canal land. Both the Section OfficerOfficer as well as the Chief Settlement Commissioner therefore, were right in placing reliance on the Fard Taqsim and Khasra Girdawari to come to the conclusion that the entire land belonging to the Appellants father was not canal irrigated, and therefore, what was allotted was1/2 standard acres in excess.13. Even from the order in Revision of the Central Government, Department of Rehabilitation datedit is apparent that the Appellants had again pressed before him similar contentions to those urged before the Chief Settlement Commissioner. Shri Nair in a detailed order while dismissing the revisionregards the plea that yet another opportunity may be given to the petitioners to produce some documentary evidence I am of the opinion that in the circumstances explained by the Chief Settlement Commissioner (R) it will hardly serve any purpose as the Shud Kar of the Canal Department on which they rely are reported to have been destroyed.However, if there is any cogent documentary proof to establish that the entire land was Nehri, the petitioners can place it before the authorities concerned in order to get their account corrected. As matters stand at present which indicate that all possible efforts were made to obtain the information from Pakistan, I find no illegality or impropriety in the impugned order. The petition is devoid of force and is hereby rejected".We consider this order to be fair and reasonable. There is no doubt that it is still open to the Appellants to avail of the opportunity afforded to them to procure and produce such material from which it can be established that the entries in the Fard Taqsim and Khasra Girdawari are not correct or that the lands owned by the Appellants father were canal lands entitling the Appellants to an allotment of 49.2 standard acres. Till then no exception can be taken to the orders passed by the concerned authorities.
|
COMMON CAUSE Vs. UNION OF INDIA | (run-of-mines) consists of large boulders, fragments and fines along with other contaminants. ROM is transported to crushing plant by dumpers and crushed to below 150 mm sizes. This crushed ROM contains lump, fines and also contaminants such as alumina and silica. The crushed ore is transported to screening plant through conveyor belts and is washed with water and screened in vibrating screens. Vibrating screens segregate ore into different sizes such as lump, calibrated ore and fines……? (Emphasis supplied by us). 17. Similarly, in Tata Steel Limited v. Union of India, (2015) 6 SCC 193 it was observed that in the process of mining, iron ore is extracted (that is ROM) and separated into ore lumps, fines and waste material which is commonly known as slime. 18. Looked at in this light, the context in which permission was granted to SMPL on 13th July, 1999 is important. Permission was granted to SMPL to extract the mineral iron ore. This had no reference at all to the sub-category or by-product called iron ore (lump) but must be understood as permission to extract mineral iron ore ROM. It was this permission that was sought to be proposed for expansion of production and if it is looked at in this contemporaneous or historical (whichever) background, then it is quite obvious that the environmental clearance granted on 22nd September, 2004 was only with reference to iron ore ROM. This must also be read in the context of the MMDR Act which refers to the mineral iron ore and does not refer to iron ore (lump). A combination of these two factors convinces us that the environmental clearance granted to SMPL was only with reference to iron ore ROM and not iron ore (lump), notwithstanding the terminology employed in the environmental clearance. 19. Taking the view as canvassed by learned counsel for SMPL would lead to a rather anomalous situation wherein, for the purposes of extracting iron ore (lump) of a permissible quantity, SMPL could extract as much iron ore ROM as it desired. In other words, for the purposes of extracting iron ore (lump) of 4.0 MTPA could it be said that SMPL was entitled to extract iron ore ROM to the extent of 6.0 MTPA or even 8.0 MTPA? The answer to this is certainly in the negative otherwise the environmental clearance granted to SMPL would be devoid of any rational meaning whatsoever. Also taking this into consideration, it does appear to us that though the environmental clearance granted to SMPL was unhappily worded, it must be given a realistic meaning so that it is not rendered ineffective on the ground of vagueness and to the detriment of the environment as also to the detriment of SMPL. 20. In this context, it is necessary to refer to the Summary of the Project, Environmental Impact Assessment and Environmental Management Plan of February 2002 placed on record by SMPL in volume 168 of the paper book. The table or chart on page 28 thereof and which forms a part of the document indicates that for the production ore extraction of iron ore (lump) the total excavation of iron ore ROM proposed is almost double the quantity. The chart is as follows: Years Lump Ore (+5-180m and 30 + 18m) (MT) Total Excavation (MT) ROM (MT) Top Soil (MT) Mineral rejects (MT) Subgrade Ore (MT) Fines, -5 mm (MT) 1st year 2001-2002 0.500 1.151 0.770 0.000 0.349 0.032 0.270 2nd year 2002-2003 1.196 2.159 1.840 0.000 0.267 0.052 0.644 3rd year 2003-2004 1.976 3.499 3.040 0.000 0.121 0.338 1.064 4th year 2004-2005 2.990 4.829 4.600 0.000 0.183 0.046 1.610 5th year 2005-2006 3.750 6.058 5.770 0.000 0.231 0.057 2.020 Sub Total 10.412 17.696 16.020 0.000 1.151 0.525 5.606 2007-2011 18.750 33.571 28.850 0.024 1.342 3.355 10.100 2012-2016 18.750 33.547 28.850 0.000 1.342 3.355 10.100 2017-2021 20.00 35.779 30.770 0.000 1.431 3.578 10.770 Grand Total 67.912 120.593 104.90 0.024 5.266 10.813 36.576 21. It is quite clear to us even from the above chart that the interpretation sought to be given by learned counsel for SMPL to the environmental clearance was never intended and if it was, then the unfortunate consequence would be that the environmental clearance must be held to be invalid and quashed, resulting in greater damage to the interests of SMPL than envisaged. On a realistic interpretation to the environmental clearance, for the purposes of calculating excess or illegal production of iron ore, the entire extraction of iron ore ROM is required to be taken into consideration. 22. We may note in this context that it has come on record that the entire iron ore ROM extracted by SMPL is actually sold to Jindal Steel and Power Ltd. or JSPL and it is not only iron ore (lump) that is sold to JSPL. In this factual background, the issue of the relationship between SMPL and JSPL arises but we are not concerned with this for the present. However, what is more important is that it is the sale of iron ore ROM that is made by SMPL to JSPL and not the sale of iron ore (lump). In other words, SMPL is desirous of taking full advantage of its extraction and production of iron ore ROM but at the same time shying away from the legal consequences that follow. 23. It was submitted by learned counsel for SMPL that the CEC has confused itself between extraction or production of iron ore ROM and extraction or production of iron ore (lump) and as a consequence, it has arrived at an incorrect figure of excess or illegal mining by SMPL. In fact, the contention is that SMPL has neither been involved in any excess or illegal mining and the conclusions arrived at by the CEC are totally incorrect. 24. We cannot accept this submission in view of the discussion above, including the conduct and activities of SMPL, the provisions of the MMDR Act and the context in which the permission and environmental clearance was granted to SMPL. | 1[ds]15. Before resolving this controversy, it must be clearly understood that extraction of the mineral iron ore is the extraction of iron ore Run of Mine or ROM. Lumps of iron ore are, in a sense, aof ROM as are topsoil, mineral rejects,ore and fines and the distinctions made are for the purposes of payment of royalty. The submission of learned counsel for SMPL is to the effect that SMPL was entitled to extract iron ore (lump) in terms of the environmental clearance. If this submission is to be taken literally, then SMPL was entitled to extract only iron ore (lump) without extracting iron ore ROM. This would be much like the argument put forth by Portia enabling Shylock to extract his pound of flesh without spilling a drop of blood. However, we need not take a decision in this regard merely on semantics.Looked at in this light, the context in which permission was granted to SMPL on 13th July, 1999 is important. Permission was granted to SMPL to extract the mineral iron ore. This had no reference at all to thect called iron ore (lump) but must be understood as permission to extract mineral iron ore ROM. It was this permission that was sought to be proposed for expansion of production and if it is looked at in this contemporaneous or historical (whichever) background, then it is quite obvious that the environmental clearance(2015) 6 SCC 193 granted on 22nd September, 2004 was only with reference to iron ore ROM. This must also be read in the context of the MMDR Act which refers to the mineral iron ore and does not refer to iron ore (lump). A combination of these two factors convinces us that the environmental clearance granted to SMPL was only with reference to iron ore ROM and not iron ore (lump), notwithstanding the terminology employed in the environmental clearance.Taking the view as canvassed by learned counsel for SMPL would lead to a rather anomalous situation wherein, for the purposes of extracting iron ore (lump) of a permissible quantity, SMPL could extract as much iron ore ROM as it desired. In other words, for the purposes of extracting iron ore (lump) of 4.0 MTPA could it be said that SMPL was entitled to extract iron ore ROM to the extent of 6.0 MTPA or even 8.0 MTPA? The answer to this is certainly in the negative otherwise the environmental clearance granted to SMPL would be devoid of any rational meaning whatsoever. Also taking this into consideration, it does appear to us that though the environmental clearance granted to SMPL was unhappily worded, it must be given a realistic meaning so that it is not rendered ineffective on the ground of vagueness and to the detriment of the environment as also to the detriment of SMPL.It is quite clear to us even from the above chart that the interpretation sought to be given by learned counsel for SMPL to the environmental clearance was never intended and if it was, then the unfortunate consequence would be that the environmental clearance must be held to be invalid and quashed, resulting in greater damage to the interests of SMPL than envisaged. On a realistic interpretation to the environmental clearance, for the purposes of calculating excess or illegal production of iron ore, the entire extraction of iron ore ROM ised to be taken into consideration.We may note in this context that it has come on record that the entire iron ore ROM extracted by SMPL is actually sold to Jindal Steel and Power Ltd. or JSPL and it is not only iron ore (lump) that is sold to JSPL. In this factual background, the issue of the relationship between SMPL and JSPL arises but we are not concerned with this for the present. However, what is more important is that it is the sale of iron ore ROM that is made by SMPL to JSPL and not the sale of iron ore (lump). In other words, SMPL is desirous of taking full advantage of its extraction and production of iron ore ROM but at the same time shying away from the legal consequences that follow.It was submitted by learned counsel for SMPL that the CEC has confused itself between extraction or production of iron ore ROM and extraction or production of iron ore (lump) and as a consequence, it has arrived at an incorrect figure of excess or illegal mining by SMPL. In fact, the contention is that SMPL has neither been involved in any excess or illegal mining and the conclusions arrived at by the CEC are totally incorrect.We cannot accept this submission in view of the discussion above, including the conduct and activities of SMPL, the provisions of the MMDR Act and the context in which the permission and environmental clearance was granted to SMPL. | 1 | 3,777 | 884 | ### 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:
(run-of-mines) consists of large boulders, fragments and fines along with other contaminants. ROM is transported to crushing plant by dumpers and crushed to below 150 mm sizes. This crushed ROM contains lump, fines and also contaminants such as alumina and silica. The crushed ore is transported to screening plant through conveyor belts and is washed with water and screened in vibrating screens. Vibrating screens segregate ore into different sizes such as lump, calibrated ore and fines……? (Emphasis supplied by us). 17. Similarly, in Tata Steel Limited v. Union of India, (2015) 6 SCC 193 it was observed that in the process of mining, iron ore is extracted (that is ROM) and separated into ore lumps, fines and waste material which is commonly known as slime. 18. Looked at in this light, the context in which permission was granted to SMPL on 13th July, 1999 is important. Permission was granted to SMPL to extract the mineral iron ore. This had no reference at all to the sub-category or by-product called iron ore (lump) but must be understood as permission to extract mineral iron ore ROM. It was this permission that was sought to be proposed for expansion of production and if it is looked at in this contemporaneous or historical (whichever) background, then it is quite obvious that the environmental clearance granted on 22nd September, 2004 was only with reference to iron ore ROM. This must also be read in the context of the MMDR Act which refers to the mineral iron ore and does not refer to iron ore (lump). A combination of these two factors convinces us that the environmental clearance granted to SMPL was only with reference to iron ore ROM and not iron ore (lump), notwithstanding the terminology employed in the environmental clearance. 19. Taking the view as canvassed by learned counsel for SMPL would lead to a rather anomalous situation wherein, for the purposes of extracting iron ore (lump) of a permissible quantity, SMPL could extract as much iron ore ROM as it desired. In other words, for the purposes of extracting iron ore (lump) of 4.0 MTPA could it be said that SMPL was entitled to extract iron ore ROM to the extent of 6.0 MTPA or even 8.0 MTPA? The answer to this is certainly in the negative otherwise the environmental clearance granted to SMPL would be devoid of any rational meaning whatsoever. Also taking this into consideration, it does appear to us that though the environmental clearance granted to SMPL was unhappily worded, it must be given a realistic meaning so that it is not rendered ineffective on the ground of vagueness and to the detriment of the environment as also to the detriment of SMPL. 20. In this context, it is necessary to refer to the Summary of the Project, Environmental Impact Assessment and Environmental Management Plan of February 2002 placed on record by SMPL in volume 168 of the paper book. The table or chart on page 28 thereof and which forms a part of the document indicates that for the production ore extraction of iron ore (lump) the total excavation of iron ore ROM proposed is almost double the quantity. The chart is as follows: Years Lump Ore (+5-180m and 30 + 18m) (MT) Total Excavation (MT) ROM (MT) Top Soil (MT) Mineral rejects (MT) Subgrade Ore (MT) Fines, -5 mm (MT) 1st year 2001-2002 0.500 1.151 0.770 0.000 0.349 0.032 0.270 2nd year 2002-2003 1.196 2.159 1.840 0.000 0.267 0.052 0.644 3rd year 2003-2004 1.976 3.499 3.040 0.000 0.121 0.338 1.064 4th year 2004-2005 2.990 4.829 4.600 0.000 0.183 0.046 1.610 5th year 2005-2006 3.750 6.058 5.770 0.000 0.231 0.057 2.020 Sub Total 10.412 17.696 16.020 0.000 1.151 0.525 5.606 2007-2011 18.750 33.571 28.850 0.024 1.342 3.355 10.100 2012-2016 18.750 33.547 28.850 0.000 1.342 3.355 10.100 2017-2021 20.00 35.779 30.770 0.000 1.431 3.578 10.770 Grand Total 67.912 120.593 104.90 0.024 5.266 10.813 36.576 21. It is quite clear to us even from the above chart that the interpretation sought to be given by learned counsel for SMPL to the environmental clearance was never intended and if it was, then the unfortunate consequence would be that the environmental clearance must be held to be invalid and quashed, resulting in greater damage to the interests of SMPL than envisaged. On a realistic interpretation to the environmental clearance, for the purposes of calculating excess or illegal production of iron ore, the entire extraction of iron ore ROM is required to be taken into consideration. 22. We may note in this context that it has come on record that the entire iron ore ROM extracted by SMPL is actually sold to Jindal Steel and Power Ltd. or JSPL and it is not only iron ore (lump) that is sold to JSPL. In this factual background, the issue of the relationship between SMPL and JSPL arises but we are not concerned with this for the present. However, what is more important is that it is the sale of iron ore ROM that is made by SMPL to JSPL and not the sale of iron ore (lump). In other words, SMPL is desirous of taking full advantage of its extraction and production of iron ore ROM but at the same time shying away from the legal consequences that follow. 23. It was submitted by learned counsel for SMPL that the CEC has confused itself between extraction or production of iron ore ROM and extraction or production of iron ore (lump) and as a consequence, it has arrived at an incorrect figure of excess or illegal mining by SMPL. In fact, the contention is that SMPL has neither been involved in any excess or illegal mining and the conclusions arrived at by the CEC are totally incorrect. 24. We cannot accept this submission in view of the discussion above, including the conduct and activities of SMPL, the provisions of the MMDR Act and the context in which the permission and environmental clearance was granted to SMPL.
### Response:
1
### Explanation:
15. Before resolving this controversy, it must be clearly understood that extraction of the mineral iron ore is the extraction of iron ore Run of Mine or ROM. Lumps of iron ore are, in a sense, aof ROM as are topsoil, mineral rejects,ore and fines and the distinctions made are for the purposes of payment of royalty. The submission of learned counsel for SMPL is to the effect that SMPL was entitled to extract iron ore (lump) in terms of the environmental clearance. If this submission is to be taken literally, then SMPL was entitled to extract only iron ore (lump) without extracting iron ore ROM. This would be much like the argument put forth by Portia enabling Shylock to extract his pound of flesh without spilling a drop of blood. However, we need not take a decision in this regard merely on semantics.Looked at in this light, the context in which permission was granted to SMPL on 13th July, 1999 is important. Permission was granted to SMPL to extract the mineral iron ore. This had no reference at all to thect called iron ore (lump) but must be understood as permission to extract mineral iron ore ROM. It was this permission that was sought to be proposed for expansion of production and if it is looked at in this contemporaneous or historical (whichever) background, then it is quite obvious that the environmental clearance(2015) 6 SCC 193 granted on 22nd September, 2004 was only with reference to iron ore ROM. This must also be read in the context of the MMDR Act which refers to the mineral iron ore and does not refer to iron ore (lump). A combination of these two factors convinces us that the environmental clearance granted to SMPL was only with reference to iron ore ROM and not iron ore (lump), notwithstanding the terminology employed in the environmental clearance.Taking the view as canvassed by learned counsel for SMPL would lead to a rather anomalous situation wherein, for the purposes of extracting iron ore (lump) of a permissible quantity, SMPL could extract as much iron ore ROM as it desired. In other words, for the purposes of extracting iron ore (lump) of 4.0 MTPA could it be said that SMPL was entitled to extract iron ore ROM to the extent of 6.0 MTPA or even 8.0 MTPA? The answer to this is certainly in the negative otherwise the environmental clearance granted to SMPL would be devoid of any rational meaning whatsoever. Also taking this into consideration, it does appear to us that though the environmental clearance granted to SMPL was unhappily worded, it must be given a realistic meaning so that it is not rendered ineffective on the ground of vagueness and to the detriment of the environment as also to the detriment of SMPL.It is quite clear to us even from the above chart that the interpretation sought to be given by learned counsel for SMPL to the environmental clearance was never intended and if it was, then the unfortunate consequence would be that the environmental clearance must be held to be invalid and quashed, resulting in greater damage to the interests of SMPL than envisaged. On a realistic interpretation to the environmental clearance, for the purposes of calculating excess or illegal production of iron ore, the entire extraction of iron ore ROM ised to be taken into consideration.We may note in this context that it has come on record that the entire iron ore ROM extracted by SMPL is actually sold to Jindal Steel and Power Ltd. or JSPL and it is not only iron ore (lump) that is sold to JSPL. In this factual background, the issue of the relationship between SMPL and JSPL arises but we are not concerned with this for the present. However, what is more important is that it is the sale of iron ore ROM that is made by SMPL to JSPL and not the sale of iron ore (lump). In other words, SMPL is desirous of taking full advantage of its extraction and production of iron ore ROM but at the same time shying away from the legal consequences that follow.It was submitted by learned counsel for SMPL that the CEC has confused itself between extraction or production of iron ore ROM and extraction or production of iron ore (lump) and as a consequence, it has arrived at an incorrect figure of excess or illegal mining by SMPL. In fact, the contention is that SMPL has neither been involved in any excess or illegal mining and the conclusions arrived at by the CEC are totally incorrect.We cannot accept this submission in view of the discussion above, including the conduct and activities of SMPL, the provisions of the MMDR Act and the context in which the permission and environmental clearance was granted to SMPL.
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Dr. J. P. Kulshreshtha and Others Vs. Chancellor, Allahabad University, Raj Bhawan and Others | hammer home the point that the Court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. But university organs, for that matter any authority in our system, is bound by the rule of law and cannot be a law unto itself If the Chancellor or any other authority lesser in level decides an academic matter or an education al question, the Court keeps its hands off; but where a provision of law has to be read and understood, it is not fair to keep the Court out. In Govinda Raos case (1) Gajendragadkar, J (as he they was) struck the right note:"What the High Court should have considered is whether file appointment made by the Chancellor Had contravened any statutory or finding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinions expressed b y the Board and its recommendations on which the Chancellor has acted." (Emphasis added) 16. The later decisions cited before us broadly conform to the rule of caution sounded in Govinda Rao. But to respect an authority is not to worship it unquestioningly since the bhakti cult is inept in the critical field of law. In short, while dealing with legal affairs which have an impact on academic bodies, the views of educational experts are entitled to great consideration but not to exclusive wisdom. Moreover, the present case is so simple that profound doctrines about academic autonomy have no place here. 17. A strange submission was mildly made that the Executive Council has also the power to make ordinances and so, by accepting a low second class has equal to a High second class in the case of the three respondents, the Council must be deemed to have amended the ordinance and implicitly re- written it to delete the adjective high before second class. This argument means that an illegal act must be deemed to be legal by reading a legislative function into an executive action. Were this dubious doctrine applied to governmental affairs and confusion between executive and legislative functions juris prudentially sanctioned, the consequences could Well be disastrous to the basics of our democracy We mention this facet of the argument not only to reject it but to emphasize that small gain in some case should not justify the urging of propositions which are subversive of our Constitution Be that as it may, we are satisfied that respondents 5, 6 and 8 do not possess a high second class in their Masters degree. 18. The second condition successfully urged before the single judge of the High Court relates to Dr. Bhattacharya (R. 9). The point is that R. 9 and petitioner No. 2 for selection the second Petitioner lost his chance of being considered because he did not appear for the interview and Dr. Bhattacharya avert ed that fate because he was sent for a second time. The equivocal version of Dr. Bhattacharya has not been accepted by the learned single Judge and we are unhappy that an academic has been put to the necessity of this dubiety which suggests that taking liberties with truth for getting a temporary advantage is a tendency which does not spare highly educated and gifted persons. In this connection, even the terminological inexactitude indulged in by Dr. Hem Lata Joshi (R. 5) is not complimentary, when she says that in her application she gave 54 marks as against the actual figure of 52.2 and when challenged, she excused herself by saying that her memory, working in a hurry, let her down. We are satisfied that if the Selection Committee had chosen to give an opportunity to the 2nd petitioner, even as they did to R. 9, he might well have turned up and having regard to his high marks, might also have stood a good chance of being selected. The criticism is not that the Selection Committees action was mala-fide or biassed, but that there has been unequal treatment between equals. For this reason, the selection of R. 9 deserves to be struck down as violative of Art. 14. 19. Other minor points which have been urged and countered do not deserve serious consideration and we decline to deal with them. The conclusion we reach is that the selection and appointments of respondents 7 and 10 are good; but the selection and appointment of respondents 5, 6, 8 and 9 are bad in law. 20. The tragic sequel cannot be dismissed as none of our concern because the Court, by its process, must, as far as possible, act constructively, minimising the injury and maximising the benefit. Indifference to consequences upon institutions and individuals has an imperial flavour and we wish to make it clear that the fact that since 1973 the respondents 5, 6, 8 and 9 have been functioning as Readers without blemish is a factor which distresses us when we demolish their appointments. They have gained experience of several years in the Readers post. They are otherwise well qualified on the academic side. The short-fall in the matter of a high second class, while some of them have been doctorates, should not have such disastrous consequences as to throw out the appointees 7 years after. We think that these special circumstances may well justify the appropriate authority in the University resorting to alternatives which may mitigate their misfortune. We have been informed by counsel Mr. Manoj Swarup that the University is inclined to take an accommodative attitude to mitigate the hardship that may flow from the adjudication. Of course, they are free to take such steps as they deem just and necessary. We do not think there was anything wrong in Dr. Bhattacharya having been persuaded to come to the interview, but we regard it as improper that such a facility was not extended to the 2nd petitioner. 21. | 1[ds]It is common ground that none of them has a first class. It is undisputed that the Allahabad University awards first class to those who obtain 60 % and above and second class to those who secure anything between 48 % to 59. For the nonce, we are not concerned with the other qualifications itemized in ordinance 9. The marks obtained by the appellants show that they are recipients of first class or high second class. The controversy is not about their eligibility but that of the contesting respondents. Dr. Mrs. Joshi (R. S) has secured 52.2 marks; Shri Saxena (R. 6) has scraped through with 49 .3 marks; Dr. Dutt (R. 7) has, however, obtained a firs t class while Shri Agarwal (R.8) is slightly below the middle line in the second class range having got only 53 .8, marks; Dr. Bhattacharya (R9.) has fared a little better with 54 .5 marks. Dr. Upadhyaya (R. 10) also has a better performance record in the Masters degree examination since he has 55.1 marks to his credit. From these figures it is obvious that Dr. Dutt (R.7) has the distition of being the holder of a first class. It is beyond ones comprehension how his selection ca n be challenged on the score of ineligibility. Indeed, the appellants have accepted the findings of the learned single Judge who has disallowed the writ petitions R. 7 and R. 10. We agree. Even in regard to the conclusion arrive d at so far as R. 10, Dr. Upadhyaya, is concerned who has secured marks above the middle line in the range between 48 % and 59 %, we are not disposed to disagree with the single Judge. Thus, the appointments of. 7 and R.10 do not call for any interference. The rest will, right now, be exposed to the actinic light of legal scrutinyWe think not. Any administrative or quasi judicial body clothed with powers and left unfettered by procedures is free to devise its own pragmatic, flexible and functionally viable processes of transacting business subject, of course to the basics of natural justice fair play in action, reasonableness in collecting decisional materials, avoidance of arbitrariness and extraneous considerations and otherwise keeping with in the leading strings of the law. We find no flaw in the methodology of `interviews. Certainly, cases arise where the are of interviewing candidates deteriorates from strategy to stratagem and undetectable manipulation of results is achieved by remote control tactics masked as viva voce tests. This, if allowed, is surely a sabotage of the purity of proceedings, a subterfuge whereby legal means to reach illegal ends is achieved. So it is that courts insist, as the learned single Judge has, in this very case, suggested on recording of marks at interviews and other fair checks like guidelines for marks and remarks about candidates and the like. If the court is skeptical, the record of the Selection proceedings, including the notes regarding the interviews, may have to be made available. Interviews, as such, are not bad but polluting it to attain illegitimate ends is badThe High Court at the two tiers has taken contrary views. But we are inclined to hold that a high second class is a mandatory minimum. A glance at the relevant portion of ordinance 9 reveals that wherever relaxation of qualifications is intended, the ordinance specifically spells it out and by necessary implication, where it has not said so, the possession of such qualification is imperative. We must remember that a Reader is but next to a Professor and holds high responsibility in giving academic guidance toe students. He has to be a creative scholar himself capable of stimulating in his students a spirit of enquiry and challenge, intellectual ferment and thirst for research. If the teacher is innocent of academic excellence, the student, in turn, will be passive, mechanical, negative and memorizing where he should be innovative, imaginative and inventive. The inference is irresistible that a Reader who guides the students and raises his faculties into creative heights is one who himself has had attainments to his credit. Putting aside for a moment the value of examinations and marks as indicators of the students potential, we must agree that the ordinance has a purpose when it prescribes atleast a high second class for a Readers post. It is obligatoryFor any layman the meaning is clear. For any purposeoriented interpretation the decoding is simple. High is the antithesis of low and a high second class is, therefore, a contrast to a low second class. When the range of second class marks is wide, of the candidate who gets that class with marks within the lower half bracket you cannot say he gets a high second class. If he manages to get 48 marks he barely gets a secondt a high second class. And commonsense which is not an enemy of court sense, points clearly to the meaning of high second class as one where the marks fall a little short of first class marks and he narrowly misses first class. In the context of ordinance 9 and its purpose an d the collocating of words used viz. first class or a high second class, the interpretation will misfire if we disregard the intent and effect of the adjective high and indifferently read it to mean merely the minimum marks needed to b ring the candidate within the second class. High is high and a superior second class denotes marks some where near first class marks. Assuming we relax, dilute and liberalize the rigour clearly imported by the draftsman by using the expression high second class, still it is impermissible to render the word high nugatory or make, by construction, that intensive adjective redundant. Nor are we impressed with the strange submission that the University has all these years treated a high second class to mean a male . second class, and, therefore English has lost its potency in the Allahabad University and high includes low. Such bathetic semantics must be rejected sucre continuing commission of wrong does not right itThe utmost we may reiuctantly accept is the construction that the learned single Judge has adopted. Draw a line at, and marks above and below that line will be high and LOW second class respectivelyHere we are concerned only with holders of second class from the Allahabad University and so the complication of other universities does not rise. Even otherwise, will reference to and particular university, the marks for second class may be from X to Y and high with reference to that university will be the superior half between X and Y. Lexically, logically, legally, teleologically, we, find the conclusion the same. We regretfully but respectfully disagree with the Division Bench and uphold the sense of high second class attributed by the learned single Judge. The mid line takes us to 54 and although it is unpalatable to be mechanical and mathematical, we have to hold that those who have not secured above 54 marks cannot claim to have obtained a high second class and are ineligible. In the instant case, Dr. Mrs. Joshi, Shri Saxena and Shri Agarwal do not fill the bill, their marks being below 54 in the Masters degree examination. We have earlier held that the power to relax, as the ordinance now runs, in so far as high second class is concerned, does not exist. Inevitably, the appointment of the 3 respondents violate the ordinance and are therefore, illegal. It is true, as counsel for the respondent urged, that the selection Committee is an expert body. But their expertise is not in law, but in other branches of learning and the final interpretation of an ordinance is a legal skill outside the academic orbitThis argument means that an illegal act must be deemed to be legal by reading a legislative function into an executive action. Were this dubious doctrine applied to governmental affairs and confusion between executive and legislative functions juris prudentially sanctioned, the consequences could Well be disastrous to the basics of our democracy We mention this facet of the argument not only to reject it but to emphasize that small gain in some case should not justify the urging of propositions which are subversive of our Constitution Be that as it may, we are satisfied that respondents 5, 6 and 8 do not possess a high second class in their Masters degreeThe equivocal version of Dr. Bhattacharya has not been accepted by the learned single Judge and we are unhappy that an academic has been put to the necessity of this dubiety which suggests that taking liberties with truth for getting a temporary advantage is a tendency which does not spare highly educated and gifted persons. In this connection, even the terminological inexactitude indulged in by Dr. Hem Lata Joshi (R. 5) is not complimentary, when she says that in her application she gave 54 marks as against the actual figure of 52.2 and when challenged, she excused herself by saying that her memory, working in a hurry, let her down. We are satisfied that if the Selection Committee had chosen to give an opportunity to the 2nd petitioner, even as they did to R. 9, he might well have turned up and having regard to his high marks, might also have stood a good chance of being selected. The criticism is not that the Selection Committees action wase or biassed, but that there has been unequal treatment between equals. For this reason, the selection of R. 9 deserves to be struck down as violative of Art. 14The conclusion we reach is that the selection and appointments of respondents 7 and 10 are good; but the selection and appointment of respondents 5, 6, 8 and 9 are bad in lawThe tragic sequel cannot be dismissed as none of our concern because the Court, by its process, must, as far as possible, act constructively, minimising the injury and maximising the benefit. Indifference to consequences upon institutions and individuals has an imperial flavour and we wish to make it clear that the fact that since 1973 the respondents 5, 6, 8 and 9 have been functioning as Readers without blemish is a factor which distresses us when we demolish their appointments. They have gained experience of several years in the Readers post. They are otherwise well qualified on the academic side. Thel in the matter of a high second class, while some of them have been doctorates, should not have such disastrous consequences as to throw out the appointees 7 years after. We think that these special circumstances may well justify the appropriate authority in the University resorting to alternatives which may mitigate their misfortune. We have been informed by counsel Mr. Manoj Swarup that the University is inclined to take an accommodative attitude to mitigate the hardship that may flow from the adjudication. Of course, they are free to take such steps as they deem just and necessary. We do not think there was anything wrong in Dr. Bhattacharya having been persuaded to come to the interview, but we regard it as improper that such a facility was not extended to the 2nd petitioner. | 1 | 4,567 | 2,052 | ### 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:
hammer home the point that the Court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. But university organs, for that matter any authority in our system, is bound by the rule of law and cannot be a law unto itself If the Chancellor or any other authority lesser in level decides an academic matter or an education al question, the Court keeps its hands off; but where a provision of law has to be read and understood, it is not fair to keep the Court out. In Govinda Raos case (1) Gajendragadkar, J (as he they was) struck the right note:"What the High Court should have considered is whether file appointment made by the Chancellor Had contravened any statutory or finding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinions expressed b y the Board and its recommendations on which the Chancellor has acted." (Emphasis added) 16. The later decisions cited before us broadly conform to the rule of caution sounded in Govinda Rao. But to respect an authority is not to worship it unquestioningly since the bhakti cult is inept in the critical field of law. In short, while dealing with legal affairs which have an impact on academic bodies, the views of educational experts are entitled to great consideration but not to exclusive wisdom. Moreover, the present case is so simple that profound doctrines about academic autonomy have no place here. 17. A strange submission was mildly made that the Executive Council has also the power to make ordinances and so, by accepting a low second class has equal to a High second class in the case of the three respondents, the Council must be deemed to have amended the ordinance and implicitly re- written it to delete the adjective high before second class. This argument means that an illegal act must be deemed to be legal by reading a legislative function into an executive action. Were this dubious doctrine applied to governmental affairs and confusion between executive and legislative functions juris prudentially sanctioned, the consequences could Well be disastrous to the basics of our democracy We mention this facet of the argument not only to reject it but to emphasize that small gain in some case should not justify the urging of propositions which are subversive of our Constitution Be that as it may, we are satisfied that respondents 5, 6 and 8 do not possess a high second class in their Masters degree. 18. The second condition successfully urged before the single judge of the High Court relates to Dr. Bhattacharya (R. 9). The point is that R. 9 and petitioner No. 2 for selection the second Petitioner lost his chance of being considered because he did not appear for the interview and Dr. Bhattacharya avert ed that fate because he was sent for a second time. The equivocal version of Dr. Bhattacharya has not been accepted by the learned single Judge and we are unhappy that an academic has been put to the necessity of this dubiety which suggests that taking liberties with truth for getting a temporary advantage is a tendency which does not spare highly educated and gifted persons. In this connection, even the terminological inexactitude indulged in by Dr. Hem Lata Joshi (R. 5) is not complimentary, when she says that in her application she gave 54 marks as against the actual figure of 52.2 and when challenged, she excused herself by saying that her memory, working in a hurry, let her down. We are satisfied that if the Selection Committee had chosen to give an opportunity to the 2nd petitioner, even as they did to R. 9, he might well have turned up and having regard to his high marks, might also have stood a good chance of being selected. The criticism is not that the Selection Committees action was mala-fide or biassed, but that there has been unequal treatment between equals. For this reason, the selection of R. 9 deserves to be struck down as violative of Art. 14. 19. Other minor points which have been urged and countered do not deserve serious consideration and we decline to deal with them. The conclusion we reach is that the selection and appointments of respondents 7 and 10 are good; but the selection and appointment of respondents 5, 6, 8 and 9 are bad in law. 20. The tragic sequel cannot be dismissed as none of our concern because the Court, by its process, must, as far as possible, act constructively, minimising the injury and maximising the benefit. Indifference to consequences upon institutions and individuals has an imperial flavour and we wish to make it clear that the fact that since 1973 the respondents 5, 6, 8 and 9 have been functioning as Readers without blemish is a factor which distresses us when we demolish their appointments. They have gained experience of several years in the Readers post. They are otherwise well qualified on the academic side. The short-fall in the matter of a high second class, while some of them have been doctorates, should not have such disastrous consequences as to throw out the appointees 7 years after. We think that these special circumstances may well justify the appropriate authority in the University resorting to alternatives which may mitigate their misfortune. We have been informed by counsel Mr. Manoj Swarup that the University is inclined to take an accommodative attitude to mitigate the hardship that may flow from the adjudication. Of course, they are free to take such steps as they deem just and necessary. We do not think there was anything wrong in Dr. Bhattacharya having been persuaded to come to the interview, but we regard it as improper that such a facility was not extended to the 2nd petitioner. 21.
### Response:
1
### Explanation:
a high second class, the interpretation will misfire if we disregard the intent and effect of the adjective high and indifferently read it to mean merely the minimum marks needed to b ring the candidate within the second class. High is high and a superior second class denotes marks some where near first class marks. Assuming we relax, dilute and liberalize the rigour clearly imported by the draftsman by using the expression high second class, still it is impermissible to render the word high nugatory or make, by construction, that intensive adjective redundant. Nor are we impressed with the strange submission that the University has all these years treated a high second class to mean a male . second class, and, therefore English has lost its potency in the Allahabad University and high includes low. Such bathetic semantics must be rejected sucre continuing commission of wrong does not right itThe utmost we may reiuctantly accept is the construction that the learned single Judge has adopted. Draw a line at, and marks above and below that line will be high and LOW second class respectivelyHere we are concerned only with holders of second class from the Allahabad University and so the complication of other universities does not rise. Even otherwise, will reference to and particular university, the marks for second class may be from X to Y and high with reference to that university will be the superior half between X and Y. Lexically, logically, legally, teleologically, we, find the conclusion the same. We regretfully but respectfully disagree with the Division Bench and uphold the sense of high second class attributed by the learned single Judge. The mid line takes us to 54 and although it is unpalatable to be mechanical and mathematical, we have to hold that those who have not secured above 54 marks cannot claim to have obtained a high second class and are ineligible. In the instant case, Dr. Mrs. Joshi, Shri Saxena and Shri Agarwal do not fill the bill, their marks being below 54 in the Masters degree examination. We have earlier held that the power to relax, as the ordinance now runs, in so far as high second class is concerned, does not exist. Inevitably, the appointment of the 3 respondents violate the ordinance and are therefore, illegal. It is true, as counsel for the respondent urged, that the selection Committee is an expert body. But their expertise is not in law, but in other branches of learning and the final interpretation of an ordinance is a legal skill outside the academic orbitThis argument means that an illegal act must be deemed to be legal by reading a legislative function into an executive action. Were this dubious doctrine applied to governmental affairs and confusion between executive and legislative functions juris prudentially sanctioned, the consequences could Well be disastrous to the basics of our democracy We mention this facet of the argument not only to reject it but to emphasize that small gain in some case should not justify the urging of propositions which are subversive of our Constitution Be that as it may, we are satisfied that respondents 5, 6 and 8 do not possess a high second class in their Masters degreeThe equivocal version of Dr. Bhattacharya has not been accepted by the learned single Judge and we are unhappy that an academic has been put to the necessity of this dubiety which suggests that taking liberties with truth for getting a temporary advantage is a tendency which does not spare highly educated and gifted persons. In this connection, even the terminological inexactitude indulged in by Dr. Hem Lata Joshi (R. 5) is not complimentary, when she says that in her application she gave 54 marks as against the actual figure of 52.2 and when challenged, she excused herself by saying that her memory, working in a hurry, let her down. We are satisfied that if the Selection Committee had chosen to give an opportunity to the 2nd petitioner, even as they did to R. 9, he might well have turned up and having regard to his high marks, might also have stood a good chance of being selected. The criticism is not that the Selection Committees action wase or biassed, but that there has been unequal treatment between equals. For this reason, the selection of R. 9 deserves to be struck down as violative of Art. 14The conclusion we reach is that the selection and appointments of respondents 7 and 10 are good; but the selection and appointment of respondents 5, 6, 8 and 9 are bad in lawThe tragic sequel cannot be dismissed as none of our concern because the Court, by its process, must, as far as possible, act constructively, minimising the injury and maximising the benefit. Indifference to consequences upon institutions and individuals has an imperial flavour and we wish to make it clear that the fact that since 1973 the respondents 5, 6, 8 and 9 have been functioning as Readers without blemish is a factor which distresses us when we demolish their appointments. They have gained experience of several years in the Readers post. They are otherwise well qualified on the academic side. Thel in the matter of a high second class, while some of them have been doctorates, should not have such disastrous consequences as to throw out the appointees 7 years after. We think that these special circumstances may well justify the appropriate authority in the University resorting to alternatives which may mitigate their misfortune. We have been informed by counsel Mr. Manoj Swarup that the University is inclined to take an accommodative attitude to mitigate the hardship that may flow from the adjudication. Of course, they are free to take such steps as they deem just and necessary. We do not think there was anything wrong in Dr. Bhattacharya having been persuaded to come to the interview, but we regard it as improper that such a facility was not extended to the 2nd petitioner.
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Hiru B. Barot Vs. Ipca Laboratories Limited & Another | not arise at all.15. The opinion recorded by us hitherto is reinforced by the exposition in the case of The Management of the Bihar State Electricity Board (supra) rendered by the Division Bench of the Patna High Court. It observed thus:We have been called upon to decide this point in this case because the submission on behalf of the petitioner is that if the order granting the interim relief has to take the form of an interim award, the Tribunal must give cogent reasons for granting such a relief by discussing some facts and showing that prima facie the workman has a strong case against the dismissal or termination of his service. Without such a finding a temporary or provisional arrangement of giving some wages to the workman cannot be adopted during the pendency of the reference case.In either case is has got to take the form of an interim award and in that event the Tribunal must determine that there is a good prima facie case in favour of the workman for final adjudication and, therefore, on the facts of a particular case, granting of interim relief by the interim award is necessary. In absence of such an adjudication of the kind just indicated by me, the Tribunal is not competent to grant interim relief to the discharged workman.(emphasis supplied)16. Determination involves the process where the opinion or the view of the authority should be expressed. However, while determining any issue judicially, it is necessary for the Presiding Officer to frame a correct issue or point of determination and thereafter to discuss and give reasoning for its conclusion. The entire process can be called as a determination of the issue judicially. In Advanced Law Lexicon, the word adjudication is defined as it is a process of directing and determining case judicially. The application of the law to the facts and an authoritative declaration of the result. Adjudication means judicial determination of a claim after taking into consideration the material on record and after hearing the parties. Granting of interim relief is different than interim award. All interim awards would necessarily be an interim relief, but not vice versa. Interim order, to grant incidental relief, can be passed. Adjudication is a mental process and it should reflect in the order passed by the Presiding officer wherein he is required to discuss acceptance or rejection of the evidence and also he is required to opine whether prima facie case is made out to grant the interim relief. Thus, determination of the issue stands on a higher pedestal than passing the order of interim relief. Interim relief is granted in various circumstances e.g if prima facie case is made out or to give breathing time to the party or to save the further damage etc.. But for passing interim award, the Tribunal has to consider the prima facie case of the industrial dispute and also has to weigh the findings in the inquiry and while doing so, application of mind should reflect from the order itself.17. The incidental issue that was canvassed on behalf of Management was that assuming that the impugned decision of the Labour Court was an interim award, however, in absence of publication thereof in the Official Gazette as required as per Section 17-A of the Act, in law, the same cannot be executed. For that reason, relief under Section 17-B of the Act on the basis of such award is unavailable. The counsel appearing for the workman on the other hand argued that whether the award is executable or otherwise, so long as the decision qualifies the definition of an Award and implementation of such decision has been stayed by the High Court, Section 17-B of the Act comes into play. According to the learned Counsel for the workman, Section 17-B of the Act will have to be liberally construed being social welfare Legislation. It is not necessary for us to examine this controversy in the fact situation of the present case.18. The learned Single Judge has held that there is no provision in the Act empowering the Tribunal to make an order granting relief to a discharged workman except by way of making interim award which can be passed under section 10(4) of the Act and so the decision of the Tribunal to grant reinstatement as a temporary measure is an award. On this point in Hotel Imperial, New Delhi the Hon. Supreme Court has held that interim relief where it is admitted can be granted as a matter incidental to the main question referred to the Tribunal without being itself referred in express terms. As the words incidental thereto appear in section 10(4) of the Act.19. We would now turn to the case (The Management of the Bihar State Electricity Board (supra). In the said case, Reference was made to the Tribunal about the termination of workmans service and what relief he was entitled to. The Tribunal granted interim relief of 1/3 of the wages to respondent no.2 till the disposal of the case and the said order was challenged. In the case in hand, however, the dispute raised and referred to the Tribunal was about the legality of the dismissal and the same issue was decided by reinstating the workman without giving reasoned order.20. With due respect, the learned Single Judge, in our considered opinion, has glossed over the crucial test to be borne in mind to discern as to whether the decision takes the colour of an interim award or is only an interim relief. For the reasons already mentioned by us, we have no hesitation in taking the view that the impugned decision of the Labour Court, though passed in exercise of Section 10(4) of the Act, is in the nature of interim relief and by no stretch of imagination, it can be treated as an interim award as is contended on behalf of the workman. As a result, the application preferred by the workman under Section 17-B of the Act was unavailable. | 1[ds]We are in agreement with the submission canvassed on behalf of the management that for treating a decision of the Labour Court as an interim award, the decision should reflect that relevant point for determination to be answered in part or wholly has been formulated and addressed in the decision so as to determine the said controversy one way or the other. Only then, the Labour Court gets jurisdiction to pass an interim award. That is a jurisdictional fact.13. In the present case, the dispute referred to the Labour Court was whether the action of the Management in terminating the services of the workman was legal and justified. In the context of the said issue, specific points for determination ought to have been formulated by the Labour Court, which is lacking in the present case. Besides, we find that the relevant facts to invest jurisdiction in the Labour Court to pass an interim award have not been discussed and deliberated upon in the impugned decision. We say so because after opining that the Labour Court was competent to pass interim relief (read award), in paragraph 13, it proceeded to record that in the present case, the relation between the employer and the workman is admitted. Further, the termination of the services is also admitted. Then in Paragraph No.14 of the impugned decision arguments canvassed by the Counsel for the parties has been referred to.On plain reading of the above said discussion in the impugned decision, it appears that reference is made to the fact that there has been long standing practice which was followed by the workman. On that premiss, it is concluded that if such practice is followed by the workman, it does not amount to breach of duties. The next point referred to is that new rules or norms have been framed in the form of BMR. Then opinion is recorded that the rule of BMR is in dispute as according to the workman, it has not come into force. Then the Labour Court Judge has jumped to the conclusion that the termination of workman was therefore not on a serious point. The Court then noted that there were large number of pending cases before it for many years. As a result, the Court thought it appropriate to pass just and equitable order of reinstatement in favour of the workman. It has then noted that the relief granted by it cannot be equated with a final award. In our opinion, however, the Labour Court ought to have discussed how the findings of the Inquiry Officer were perverse, incorrect or unfair. Further, except one sentence that the workman is terminated not on a serious point, thee is no other consideration as to why the punishment imposed by the Management is unjust, much less, excessive. Suffice it to observe that the impugned decision to take the colour of an interim award ought to have determined the material points. That is lacking in the discussion in paragraph 15 of the impugned Judgment. On this finding, it necessarily follows that the decision by no stretch of imagination can be considered as an interim award as such. It, at best, can be viewed only in the nature of interim relief granted by the Labour Court. Thus understood, the question of granting relief to the workman under Sectionof the Act would not arise at all.The learned Single Judge has held that there is no provision in the Act empowering the Tribunal to make an order granting relief to a discharged workman except by way of making interim award which can be passed under section 10(4) of the Act and so the decision of the Tribunal to grant reinstatement as a temporary measure is an award. On this point in Hotel Imperial, New Delhi the Hon. Supreme Court has held that interim relief where it is admitted can be granted as a matter incidental to the main question referred to the Tribunal without being itself referred in express terms. As the words incidental thereto appear in section 10(4) of the Act.19. We would now turn to the case (The Management of the Bihar State Electricity Board (supra). In the said case, Reference was made to the Tribunal about the termination of workmans service and what relief he was entitled to. The Tribunal granted interim relief of 1/3 of the wages to respondent no.2 till the disposal of the case and the said order was challenged. In the case in hand, however, the dispute raised and referred to the Tribunal was about the legality of the dismissal and the same issue was decided by reinstating the workman without giving reasoned order.20. With due respect, the learned Single Judge, in our considered opinion, has glossed over the crucial test to be borne in mind to discern as to whether the decision takes the colour of an interim award or is only an interim relief. For the reasons already mentioned by us, we have no hesitation in taking the view that the impugned decision of the Labour Court, though passed in exercise of Section 10(4) of the Act, is in the nature of interim relief and by no stretch of imagination, it can be treated as an interim award as is contended on behalf of the workman. As a result, the application preferred by the workman under Sectionof the Act was unavailable. | 1 | 3,941 | 984 | ### Instruction:
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not arise at all.15. The opinion recorded by us hitherto is reinforced by the exposition in the case of The Management of the Bihar State Electricity Board (supra) rendered by the Division Bench of the Patna High Court. It observed thus:We have been called upon to decide this point in this case because the submission on behalf of the petitioner is that if the order granting the interim relief has to take the form of an interim award, the Tribunal must give cogent reasons for granting such a relief by discussing some facts and showing that prima facie the workman has a strong case against the dismissal or termination of his service. Without such a finding a temporary or provisional arrangement of giving some wages to the workman cannot be adopted during the pendency of the reference case.In either case is has got to take the form of an interim award and in that event the Tribunal must determine that there is a good prima facie case in favour of the workman for final adjudication and, therefore, on the facts of a particular case, granting of interim relief by the interim award is necessary. In absence of such an adjudication of the kind just indicated by me, the Tribunal is not competent to grant interim relief to the discharged workman.(emphasis supplied)16. Determination involves the process where the opinion or the view of the authority should be expressed. However, while determining any issue judicially, it is necessary for the Presiding Officer to frame a correct issue or point of determination and thereafter to discuss and give reasoning for its conclusion. The entire process can be called as a determination of the issue judicially. In Advanced Law Lexicon, the word adjudication is defined as it is a process of directing and determining case judicially. The application of the law to the facts and an authoritative declaration of the result. Adjudication means judicial determination of a claim after taking into consideration the material on record and after hearing the parties. Granting of interim relief is different than interim award. All interim awards would necessarily be an interim relief, but not vice versa. Interim order, to grant incidental relief, can be passed. Adjudication is a mental process and it should reflect in the order passed by the Presiding officer wherein he is required to discuss acceptance or rejection of the evidence and also he is required to opine whether prima facie case is made out to grant the interim relief. Thus, determination of the issue stands on a higher pedestal than passing the order of interim relief. Interim relief is granted in various circumstances e.g if prima facie case is made out or to give breathing time to the party or to save the further damage etc.. But for passing interim award, the Tribunal has to consider the prima facie case of the industrial dispute and also has to weigh the findings in the inquiry and while doing so, application of mind should reflect from the order itself.17. The incidental issue that was canvassed on behalf of Management was that assuming that the impugned decision of the Labour Court was an interim award, however, in absence of publication thereof in the Official Gazette as required as per Section 17-A of the Act, in law, the same cannot be executed. For that reason, relief under Section 17-B of the Act on the basis of such award is unavailable. The counsel appearing for the workman on the other hand argued that whether the award is executable or otherwise, so long as the decision qualifies the definition of an Award and implementation of such decision has been stayed by the High Court, Section 17-B of the Act comes into play. According to the learned Counsel for the workman, Section 17-B of the Act will have to be liberally construed being social welfare Legislation. It is not necessary for us to examine this controversy in the fact situation of the present case.18. The learned Single Judge has held that there is no provision in the Act empowering the Tribunal to make an order granting relief to a discharged workman except by way of making interim award which can be passed under section 10(4) of the Act and so the decision of the Tribunal to grant reinstatement as a temporary measure is an award. On this point in Hotel Imperial, New Delhi the Hon. Supreme Court has held that interim relief where it is admitted can be granted as a matter incidental to the main question referred to the Tribunal without being itself referred in express terms. As the words incidental thereto appear in section 10(4) of the Act.19. We would now turn to the case (The Management of the Bihar State Electricity Board (supra). In the said case, Reference was made to the Tribunal about the termination of workmans service and what relief he was entitled to. The Tribunal granted interim relief of 1/3 of the wages to respondent no.2 till the disposal of the case and the said order was challenged. In the case in hand, however, the dispute raised and referred to the Tribunal was about the legality of the dismissal and the same issue was decided by reinstating the workman without giving reasoned order.20. With due respect, the learned Single Judge, in our considered opinion, has glossed over the crucial test to be borne in mind to discern as to whether the decision takes the colour of an interim award or is only an interim relief. For the reasons already mentioned by us, we have no hesitation in taking the view that the impugned decision of the Labour Court, though passed in exercise of Section 10(4) of the Act, is in the nature of interim relief and by no stretch of imagination, it can be treated as an interim award as is contended on behalf of the workman. As a result, the application preferred by the workman under Section 17-B of the Act was unavailable.
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1
### Explanation:
We are in agreement with the submission canvassed on behalf of the management that for treating a decision of the Labour Court as an interim award, the decision should reflect that relevant point for determination to be answered in part or wholly has been formulated and addressed in the decision so as to determine the said controversy one way or the other. Only then, the Labour Court gets jurisdiction to pass an interim award. That is a jurisdictional fact.13. In the present case, the dispute referred to the Labour Court was whether the action of the Management in terminating the services of the workman was legal and justified. In the context of the said issue, specific points for determination ought to have been formulated by the Labour Court, which is lacking in the present case. Besides, we find that the relevant facts to invest jurisdiction in the Labour Court to pass an interim award have not been discussed and deliberated upon in the impugned decision. We say so because after opining that the Labour Court was competent to pass interim relief (read award), in paragraph 13, it proceeded to record that in the present case, the relation between the employer and the workman is admitted. Further, the termination of the services is also admitted. Then in Paragraph No.14 of the impugned decision arguments canvassed by the Counsel for the parties has been referred to.On plain reading of the above said discussion in the impugned decision, it appears that reference is made to the fact that there has been long standing practice which was followed by the workman. On that premiss, it is concluded that if such practice is followed by the workman, it does not amount to breach of duties. The next point referred to is that new rules or norms have been framed in the form of BMR. Then opinion is recorded that the rule of BMR is in dispute as according to the workman, it has not come into force. Then the Labour Court Judge has jumped to the conclusion that the termination of workman was therefore not on a serious point. The Court then noted that there were large number of pending cases before it for many years. As a result, the Court thought it appropriate to pass just and equitable order of reinstatement in favour of the workman. It has then noted that the relief granted by it cannot be equated with a final award. In our opinion, however, the Labour Court ought to have discussed how the findings of the Inquiry Officer were perverse, incorrect or unfair. Further, except one sentence that the workman is terminated not on a serious point, thee is no other consideration as to why the punishment imposed by the Management is unjust, much less, excessive. Suffice it to observe that the impugned decision to take the colour of an interim award ought to have determined the material points. That is lacking in the discussion in paragraph 15 of the impugned Judgment. On this finding, it necessarily follows that the decision by no stretch of imagination can be considered as an interim award as such. It, at best, can be viewed only in the nature of interim relief granted by the Labour Court. Thus understood, the question of granting relief to the workman under Sectionof the Act would not arise at all.The learned Single Judge has held that there is no provision in the Act empowering the Tribunal to make an order granting relief to a discharged workman except by way of making interim award which can be passed under section 10(4) of the Act and so the decision of the Tribunal to grant reinstatement as a temporary measure is an award. On this point in Hotel Imperial, New Delhi the Hon. Supreme Court has held that interim relief where it is admitted can be granted as a matter incidental to the main question referred to the Tribunal without being itself referred in express terms. As the words incidental thereto appear in section 10(4) of the Act.19. We would now turn to the case (The Management of the Bihar State Electricity Board (supra). In the said case, Reference was made to the Tribunal about the termination of workmans service and what relief he was entitled to. The Tribunal granted interim relief of 1/3 of the wages to respondent no.2 till the disposal of the case and the said order was challenged. In the case in hand, however, the dispute raised and referred to the Tribunal was about the legality of the dismissal and the same issue was decided by reinstating the workman without giving reasoned order.20. With due respect, the learned Single Judge, in our considered opinion, has glossed over the crucial test to be borne in mind to discern as to whether the decision takes the colour of an interim award or is only an interim relief. For the reasons already mentioned by us, we have no hesitation in taking the view that the impugned decision of the Labour Court, though passed in exercise of Section 10(4) of the Act, is in the nature of interim relief and by no stretch of imagination, it can be treated as an interim award as is contended on behalf of the workman. As a result, the application preferred by the workman under Sectionof the Act was unavailable.
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Cmd/Chairman,. B.S.N.L. Vs. Mishri Lal | of Uttar Pradesh, AIR 1992 SC 2084 , etc. 14. Hence, the approach of the High Court, in our opinion, was totally incorrect. In State of Punjab and others vs. Arun Aggarwal and others (2007) 10 SCC 402 , it was observed (in para 30): There is no quarrel over the proposition of law that the normal rule is that the vacancy prior to the new Rules would be governed by the old Rules and not the new Rules. However, in the present case, we have already held that the Government has taken a conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case. 15. In the present case, a conscious decision was taken in 2005 providing that all the posts in question should be filled up by Limited Internal Competitive Examination. This was a policy decision and we cannot see how the High Court could have found fault with it. It is well settled that the Court cannot ordinarily interfere with policy decisions. 16. No doubt in some decisions it was held that a vested right cannot be taken away by amendment of the rules. But what does this really mean? Since a rule under the proviso to Article 309 is legislative in character vide Raj Kumar vs. Union of India (supra) the rule can be amended, even with retrospective effect, just as a legislation can be amended with retrospective effect. 17. In our opinion the expression `vested right could only mean a vested Constitutional right, since a Constitutional right cannot be taken away by amendment of the rules. 18. This is evident from the Constitution Bench decision of this Court in Chairman, Railway Board vs. C.R. Rangadhamaiah (1997) 6 SCC 623 . It was held therein that pension is no longer treated as a bounty but was a valuable Constitutional right under Articles 19(1)(f) and 31(1) of the Constitution, which were available on 1.1.1973 and 1.4.1974 (that is before the 44th Constitution Amendment). Since this was a Constitutional right it could not be taken away by amendment of the rules. The Constitution is the supreme law of the land, and hence a Constitutional right can only be taken away by amending the Constitution, not by amending the rules or even by amending the statute. 19. Hence in view of the aforesaid Constitution Bench decision the other decisions of this Court of smaller benches must be understood to mean that a vested Constitutional right cannot be taken away by amendment of the rules. It follows that if the vested right is not a Constitutional right it can be taken away by retrospective amendment of the rules. A legislative act can destroy existing rights, (unless it is a Constitutional right). Thus, even a taxing statute can be made retrospectively, and this usually affects existing rights vide Union of India vs. Madangopal, AIR 1954 SC 158 , Jawaharlal vs. State of Rajasthan, AIR 1966 SC 764 (770), Tata Iron & Steel Co. Ltd. vs. State of Bihar, AIR 1958 SC 452 , D.G. Gouse & Co. vs. State of Kerala, AIR 1980 SC 271 (para 16), Shetkari Sahkari Sakhar Karkhana Ltd. vs. Collector, AIR 1979 SC 1972 (para 6-7), etc. 20. A rule made under the proviso to Article 309 is a legislative act (though made by the executive). It is not a piece of delegated legislation like a rule made under a statute. Hence it can be amended retrospectively. 21. In para 8 & 9 of the impugned judgment, the High Court has observed: The main and the central contention from the side of the petitioners is that since the Old Rules specifically stated that since these Rules will remain effective for three years, it was not for the respondent No. 3 to change these Rules before three years, and to formulate new set of rules, changing the basic structure of promotion, as petitioners who were already working on the post of AD (OL) as far back as since 10.7.1995 on local officiating basis. We agree with the contention of the learned counsel for the petitioner, because, Law and Equity as well as Honesty and Fair Play jointly provide support of the petitioners contention, that once it has been laid down in the old Rules (Rule 10(iv) that they will not be changed for three years, respondent No. 3 BSNL, who is a Government of India enterprise, cannot change the Rules before expiry of three recruitment years, and cannot formulate a new set of Rules detrimental to the interests of the petitioners. This undertaking given by the respondent No. 3 in the earlier Rules, is sacrosanct, and the respondent No. 3 is bound to honour the same. They cannot and should not be allowed to say, a good-bye from the same. If they wanted to retain the right to change the Rules, they should not have given an undertaking by framing sub-rule(iv) of Rule 10 of the Old Rules. But once they have given this assurance in the Rules, they respondents cannot and should not be allowed to turn around and resile from the same. 22. We are of the opinion that the above observations are not sustainable. When Rules are framed under Article 309 of the Constitution, no undertaking need be given to anybody and the Rules can be changed at any time. For instance, if the retirement age is fixed by rules framed under Article 309, that can be changed subsequently by an amendment even in respect of employees appointed before the amendment. Hence, we cannot accept the view taken by the High Court. There is no question of equity in this case because it is well settled that law prevails over equity if there is a conflict. Equity can only supplement the law, and not supplant it. As the Latin maxim states Dura lex sed lex which means The law is hard, but it is the law. 23. | 1[ds]We agree with the contention of the learned counsel for the petitioner, because, Law and Equity as well as Honesty and Fair Play jointly provide support of the petitioners contention, that once it has been laid down in the old Rules (Rule 10(iv) that they will not be changed for three years, respondent No. 3 BSNL, who is a Government of India enterprise, cannot change the Rules before expiry of three recruitment years, and cannot formulate a new set of Rules detrimental to the interests of the petitioners. This undertaking given by the respondent No. 3 in the earlier Rules, is sacrosanct, and the respondent No. 3 is bound to honour the same. They cannot and should not be allowed to say, a good-bye from the same. If they wanted to retain the right to change the Rules, they should not have given an undertaking by framing sub-rule(iv) of Rule 10 of the Old Rules. But once they have given this assurance in the Rules, they respondents cannot and should not be allowed to turn around and resile from the same22. We are of the opinion that the above observations are not sustainable. When Rules are framed under Article 309 of the Constitution, no undertaking need be given to anybody and the Rules can be changed at any time. For instance, if the retirement age is fixed by rules framed under Article 309, that can be changed subsequently by an amendment even in respect of employees appointed before the amendment. Hence, we cannot accept the view taken by the High Court. There is no question of equity in this case because it is well settled that law prevails over equity if there is a conflict. Equity can only supplement the law, and not supplant it. As the Latin maxim states Dura lex sed lex which means The law is hard, but it is the law. | 1 | 2,407 | 364 | ### Instruction:
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of Uttar Pradesh, AIR 1992 SC 2084 , etc. 14. Hence, the approach of the High Court, in our opinion, was totally incorrect. In State of Punjab and others vs. Arun Aggarwal and others (2007) 10 SCC 402 , it was observed (in para 30): There is no quarrel over the proposition of law that the normal rule is that the vacancy prior to the new Rules would be governed by the old Rules and not the new Rules. However, in the present case, we have already held that the Government has taken a conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case. 15. In the present case, a conscious decision was taken in 2005 providing that all the posts in question should be filled up by Limited Internal Competitive Examination. This was a policy decision and we cannot see how the High Court could have found fault with it. It is well settled that the Court cannot ordinarily interfere with policy decisions. 16. No doubt in some decisions it was held that a vested right cannot be taken away by amendment of the rules. But what does this really mean? Since a rule under the proviso to Article 309 is legislative in character vide Raj Kumar vs. Union of India (supra) the rule can be amended, even with retrospective effect, just as a legislation can be amended with retrospective effect. 17. In our opinion the expression `vested right could only mean a vested Constitutional right, since a Constitutional right cannot be taken away by amendment of the rules. 18. This is evident from the Constitution Bench decision of this Court in Chairman, Railway Board vs. C.R. Rangadhamaiah (1997) 6 SCC 623 . It was held therein that pension is no longer treated as a bounty but was a valuable Constitutional right under Articles 19(1)(f) and 31(1) of the Constitution, which were available on 1.1.1973 and 1.4.1974 (that is before the 44th Constitution Amendment). Since this was a Constitutional right it could not be taken away by amendment of the rules. The Constitution is the supreme law of the land, and hence a Constitutional right can only be taken away by amending the Constitution, not by amending the rules or even by amending the statute. 19. Hence in view of the aforesaid Constitution Bench decision the other decisions of this Court of smaller benches must be understood to mean that a vested Constitutional right cannot be taken away by amendment of the rules. It follows that if the vested right is not a Constitutional right it can be taken away by retrospective amendment of the rules. A legislative act can destroy existing rights, (unless it is a Constitutional right). Thus, even a taxing statute can be made retrospectively, and this usually affects existing rights vide Union of India vs. Madangopal, AIR 1954 SC 158 , Jawaharlal vs. State of Rajasthan, AIR 1966 SC 764 (770), Tata Iron & Steel Co. Ltd. vs. State of Bihar, AIR 1958 SC 452 , D.G. Gouse & Co. vs. State of Kerala, AIR 1980 SC 271 (para 16), Shetkari Sahkari Sakhar Karkhana Ltd. vs. Collector, AIR 1979 SC 1972 (para 6-7), etc. 20. A rule made under the proviso to Article 309 is a legislative act (though made by the executive). It is not a piece of delegated legislation like a rule made under a statute. Hence it can be amended retrospectively. 21. In para 8 & 9 of the impugned judgment, the High Court has observed: The main and the central contention from the side of the petitioners is that since the Old Rules specifically stated that since these Rules will remain effective for three years, it was not for the respondent No. 3 to change these Rules before three years, and to formulate new set of rules, changing the basic structure of promotion, as petitioners who were already working on the post of AD (OL) as far back as since 10.7.1995 on local officiating basis. We agree with the contention of the learned counsel for the petitioner, because, Law and Equity as well as Honesty and Fair Play jointly provide support of the petitioners contention, that once it has been laid down in the old Rules (Rule 10(iv) that they will not be changed for three years, respondent No. 3 BSNL, who is a Government of India enterprise, cannot change the Rules before expiry of three recruitment years, and cannot formulate a new set of Rules detrimental to the interests of the petitioners. This undertaking given by the respondent No. 3 in the earlier Rules, is sacrosanct, and the respondent No. 3 is bound to honour the same. They cannot and should not be allowed to say, a good-bye from the same. If they wanted to retain the right to change the Rules, they should not have given an undertaking by framing sub-rule(iv) of Rule 10 of the Old Rules. But once they have given this assurance in the Rules, they respondents cannot and should not be allowed to turn around and resile from the same. 22. We are of the opinion that the above observations are not sustainable. When Rules are framed under Article 309 of the Constitution, no undertaking need be given to anybody and the Rules can be changed at any time. For instance, if the retirement age is fixed by rules framed under Article 309, that can be changed subsequently by an amendment even in respect of employees appointed before the amendment. Hence, we cannot accept the view taken by the High Court. There is no question of equity in this case because it is well settled that law prevails over equity if there is a conflict. Equity can only supplement the law, and not supplant it. As the Latin maxim states Dura lex sed lex which means The law is hard, but it is the law. 23.
### Response:
1
### Explanation:
We agree with the contention of the learned counsel for the petitioner, because, Law and Equity as well as Honesty and Fair Play jointly provide support of the petitioners contention, that once it has been laid down in the old Rules (Rule 10(iv) that they will not be changed for three years, respondent No. 3 BSNL, who is a Government of India enterprise, cannot change the Rules before expiry of three recruitment years, and cannot formulate a new set of Rules detrimental to the interests of the petitioners. This undertaking given by the respondent No. 3 in the earlier Rules, is sacrosanct, and the respondent No. 3 is bound to honour the same. They cannot and should not be allowed to say, a good-bye from the same. If they wanted to retain the right to change the Rules, they should not have given an undertaking by framing sub-rule(iv) of Rule 10 of the Old Rules. But once they have given this assurance in the Rules, they respondents cannot and should not be allowed to turn around and resile from the same22. We are of the opinion that the above observations are not sustainable. When Rules are framed under Article 309 of the Constitution, no undertaking need be given to anybody and the Rules can be changed at any time. For instance, if the retirement age is fixed by rules framed under Article 309, that can be changed subsequently by an amendment even in respect of employees appointed before the amendment. Hence, we cannot accept the view taken by the High Court. There is no question of equity in this case because it is well settled that law prevails over equity if there is a conflict. Equity can only supplement the law, and not supplant it. As the Latin maxim states Dura lex sed lex which means The law is hard, but it is the law.
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G.S. Broca Vs. State of Jammu and Kashmir and Another | CHANDRACHUD, C.J.1. This case has a chequered history. The appellant started his career way back in 1934 as a constable in the Police Department of the State of Jammu & Kashmir when he was about 18 years of age. He was promoted as a Head Constable in 1946, as an Assistant Sub-Inspector in 1953 and as a Sub-Inspector of Police in 1959. He retired in that post on December 16, 1971 on superannuation at the age of 55.2. The grievance of the appellant is that he was wrongly denied promotions to higher posts in the Police Department and that his juniors were promoted to those posts over his head not only without justification but in the teeth of order passed by the Home Secretary on April 3, 1958 and January 15, 1963.3. We have considered the appellants grievance carefully but we find no merit in it.4. The appellant had filed three petitions in the High Court of Jammu & Kashmir, namely, Writ Petitions Nos. 255 of 1971, 257 of 1971 and 303 of 1972. Writ Petition No. 255 of 1971 was filed against a punishment imposed upon him with which we are not concerned. Writ Petition No. 257 of 1971 is the one out of which this appeal arises. While that writ petition was pending in the High Court, the appellant filed Writ Petition No. 303 of 1972 which was allowed by a learned Single Judge of the High Court who, by his order dated November 29, 1972, directed the State Government to consider the appellants case for seniority and consequent promotion to the higher posts. The Government rejected the appellants case on reconsideration and being aggrieved thereby, the appellant filed yet another writ petition (No. 122 of 1973), the judgment in which is reported in 1976 J & K Law Reports 356. | 1[ds]5. The appellant, in our opinion, cannot have his case examined and reexamined over and over again. He filed Writ Petition No. 303 of 1972 while his earlier Writ Petition No. 257 of 1971, out of which this appeal arises, was pending in the High Court in respect of very same relief. He succeeded in Writ Petition No. 303 of 1972 and though the High Court did not direct in terms that as a result of the judgment therein, Writ Petition No. 257 of 1971 would stand disposed of, that would be the plain effect of the disposal of Writ Petition No. 303 of 1972. In other words, Writ Petition No. 257 of 1971, out of which this appeal arises, must be deemed to have merged in Writ Petition No. 303 of 1972 and disposed of by the judgment in that writ petition. The appellant filed Writ Petition No. 122 of 1973 because the Government, according to him, did not implement the orders passed by the High Court in Writ Petition No. 303 of 1972. He was granted all the reliefs he was entitled to in that writ petition. He cannot now turn around and hark back to Writ Petition No. 257 of 1971. This appeal has therefore in a sense become infructuous. The reliefs granted to the appellant in Writ Petition No. 122 of 1973 ought to meet his just and reasonable expectations in regard to his career in the Police Department of the State. We may mention that the claim of the appellant is that the he should have been promoted as an Assistantin 1948, as aof Police in 1950, as an Inspector in 1954, as a Dy. S.P. in 1958, as an S.P. in 1963 and as a D.I.G. in 1968. By the judgment of the High Court dated April 30, 1976 in Writ Petition No. 122 of 1973, the Government was directed to promote the appellant as an Assistantof Police from 1953, as aof Police from December 1, 1959, as an Inspector from May 11, 1963 and as a Dy. S.P. from September 12, 1966. These reliefs admittedly have been granted to the appellant and the aforesaid judgment of the High Court dated April 30, 1976 has been fully implemented.6. Apart from this consideration, the High Court, in its judgment in the letters patent appeal which is under appeal before us is, in our opinion, right in taking the view that the communications dated April 3, 1958 and January 15, 1963 which formed the basis of the present writ petition are not in the nature of orders passed by the Government; they are merely in the nature of recommendations made by the Secretary, Home Department to theof Police. Therefore, the fact that the Government did not feel itself bound thereby while passing the impugned order cannot vitiate that order.7. There is one more aspects of the matter which needs to be mentioned. The appellant is asking for promotion to higher posts in the Police Department right from the year 1948 as if he was entitled to the higher posts on the basis of seniority alone. As started by theof Police, Lt. Col. B.S. Samyal, in his order dated June 25, 1955 while disposing of the appeal filed by the appellant against the orders of D.I.G., Jammu, dated April 13, 1947 and June 11, 1948, the question of promotion to the higher ranks did not depend upon seniority alone; the suitability of the candidate for promotion had to be judged in each individual case on the basis of the reports made by the D.I.G. in regard to his efficiency, integrity and general reputation. It is therefore not possible for us to entertain the grievance of the appellant that, at this distant date, he should be granted a declaration by which he will be carried forward as high as to the post of the Deputy | 1 | 336 | 736 | ### Instruction:
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CHANDRACHUD, C.J.1. This case has a chequered history. The appellant started his career way back in 1934 as a constable in the Police Department of the State of Jammu & Kashmir when he was about 18 years of age. He was promoted as a Head Constable in 1946, as an Assistant Sub-Inspector in 1953 and as a Sub-Inspector of Police in 1959. He retired in that post on December 16, 1971 on superannuation at the age of 55.2. The grievance of the appellant is that he was wrongly denied promotions to higher posts in the Police Department and that his juniors were promoted to those posts over his head not only without justification but in the teeth of order passed by the Home Secretary on April 3, 1958 and January 15, 1963.3. We have considered the appellants grievance carefully but we find no merit in it.4. The appellant had filed three petitions in the High Court of Jammu & Kashmir, namely, Writ Petitions Nos. 255 of 1971, 257 of 1971 and 303 of 1972. Writ Petition No. 255 of 1971 was filed against a punishment imposed upon him with which we are not concerned. Writ Petition No. 257 of 1971 is the one out of which this appeal arises. While that writ petition was pending in the High Court, the appellant filed Writ Petition No. 303 of 1972 which was allowed by a learned Single Judge of the High Court who, by his order dated November 29, 1972, directed the State Government to consider the appellants case for seniority and consequent promotion to the higher posts. The Government rejected the appellants case on reconsideration and being aggrieved thereby, the appellant filed yet another writ petition (No. 122 of 1973), the judgment in which is reported in 1976 J & K Law Reports 356.
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5. The appellant, in our opinion, cannot have his case examined and reexamined over and over again. He filed Writ Petition No. 303 of 1972 while his earlier Writ Petition No. 257 of 1971, out of which this appeal arises, was pending in the High Court in respect of very same relief. He succeeded in Writ Petition No. 303 of 1972 and though the High Court did not direct in terms that as a result of the judgment therein, Writ Petition No. 257 of 1971 would stand disposed of, that would be the plain effect of the disposal of Writ Petition No. 303 of 1972. In other words, Writ Petition No. 257 of 1971, out of which this appeal arises, must be deemed to have merged in Writ Petition No. 303 of 1972 and disposed of by the judgment in that writ petition. The appellant filed Writ Petition No. 122 of 1973 because the Government, according to him, did not implement the orders passed by the High Court in Writ Petition No. 303 of 1972. He was granted all the reliefs he was entitled to in that writ petition. He cannot now turn around and hark back to Writ Petition No. 257 of 1971. This appeal has therefore in a sense become infructuous. The reliefs granted to the appellant in Writ Petition No. 122 of 1973 ought to meet his just and reasonable expectations in regard to his career in the Police Department of the State. We may mention that the claim of the appellant is that the he should have been promoted as an Assistantin 1948, as aof Police in 1950, as an Inspector in 1954, as a Dy. S.P. in 1958, as an S.P. in 1963 and as a D.I.G. in 1968. By the judgment of the High Court dated April 30, 1976 in Writ Petition No. 122 of 1973, the Government was directed to promote the appellant as an Assistantof Police from 1953, as aof Police from December 1, 1959, as an Inspector from May 11, 1963 and as a Dy. S.P. from September 12, 1966. These reliefs admittedly have been granted to the appellant and the aforesaid judgment of the High Court dated April 30, 1976 has been fully implemented.6. Apart from this consideration, the High Court, in its judgment in the letters patent appeal which is under appeal before us is, in our opinion, right in taking the view that the communications dated April 3, 1958 and January 15, 1963 which formed the basis of the present writ petition are not in the nature of orders passed by the Government; they are merely in the nature of recommendations made by the Secretary, Home Department to theof Police. Therefore, the fact that the Government did not feel itself bound thereby while passing the impugned order cannot vitiate that order.7. There is one more aspects of the matter which needs to be mentioned. The appellant is asking for promotion to higher posts in the Police Department right from the year 1948 as if he was entitled to the higher posts on the basis of seniority alone. As started by theof Police, Lt. Col. B.S. Samyal, in his order dated June 25, 1955 while disposing of the appeal filed by the appellant against the orders of D.I.G., Jammu, dated April 13, 1947 and June 11, 1948, the question of promotion to the higher ranks did not depend upon seniority alone; the suitability of the candidate for promotion had to be judged in each individual case on the basis of the reports made by the D.I.G. in regard to his efficiency, integrity and general reputation. It is therefore not possible for us to entertain the grievance of the appellant that, at this distant date, he should be granted a declaration by which he will be carried forward as high as to the post of the Deputy
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State Of Madras Vs. K. N. Shanmugha Mudallar & Ors | acre for part of the land near the road and at the rate of Rs. 1, 300 per acre for the rest of the land. Rs. 520, 11 As, 1 P the capitalised value of the net rental income was held to be the amount payable to the respondents. The Kudiwaramdars were content with the compensation awarded to them, but the respondents who were, as already mentioned above, Melavaramdars asked for a reference to court under section 18 of the Act for claiming enhanced compensation. According to the respondents, they were entitled to one-third of the value of the totality of the interest in the land. According further to the respondents, compensation for the total land should be awarded at the rate of Rs. 3, 000 per acre Learned Subordinate Judge held that the respondents were entitled to 50 percent of the compensation awarded in respect of the Melawaram interest in the land. The Subordinate Judge in this context relied r upon an earlier decision of the Madras High Court wherein it had been held that the rights of Melavaramdars were not confined only to rent from land and that they had other recognised rights and were entitled to compensation for those rights. The respondents were thus held entitled to compensation for their Melavaramdar interest at the rate of Rs. 750 per acre in respect of land near the road and Rs. 650 per acre in respect of the remaining land. Interest was awarded to the respondents on the compensation amount from December 1, 1949 2-608SCI/76 because, in the opinion of the Subordinate Judge, possession of the land had been taken from that date.On appeal the High Court affirmed the decision of the Subordinate Judge regarding the rate of compensation. The contention advanced on behalf of the appellant that as the land had vested in the Government under the Abolition Act, the respondents were not entitled to compensation under the Land Acquisition Act, was rejected. It was observed that in the land acquisition proceedings the Government was estopped from denying the absence of any interest in the claimants whom the Government had made parties to the proceedings. Regarding the date from which interest on the amount or compensation should accrue, the High Court found that there was no material on the record to show that possession of the land had been taken prior to the date of the award by the Land Acquisition officer. Interest was accordingly directed to run from the date of the award.4. In appeal before us Mr. Rangam on behalf of the appellant-state has urged that as the land in question has vested under the Abolition Act in the State the respondents are not entitled to compensation under the Land Acquisition Act. We find it difficult to accede to this submission, for we are of the opinion that in case the State wanted to take over the land under the Abolition Act it should not have proceeded to acquire the interest of the respondents in the land in dispute under the Land Acquisition Act. There were two alternative courses open to the State, either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act. Although the estate was notified under the Abolition Act, the proceedings under that Act were stayed and the matter proceeded under the Land Acquisition Act. As the proceedings which were continued were under the Land Acquisition Act the compensation payable had also to be paid in accordance with the provisions of that Act. The reference which was made by the Land Acquisition officer to the Subordinate Judge under section 18 of the Land Acquisition Act was with respect to the quantum of compensation payable to the respondents because the respondents had felt dissatisfied with the amount awarded to them as compensation by the said officer. The underlying assumption of those proceedings was that the respondents had an interest in the land. If it was the case of t he appellant that the respondents had been divested of their interest in the land and the same had vested in the appellant State, the appellant should have taken appropriate steps to make such a claim in accordance with law. No such claim seems to have been made. The High Court expressly left open the question of the claim of the State Government to the amount of compensation deposited on the score that Melwaramdar respondents were not entitled to it by reason of having lost all their interest in the land at the relevant point of time. We agree with the High Court that it was not open to the appellant-State in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to t he interest of the respondents. There is also we find nothing in the award of the learned Subordinate Judge to show that any question was raised before him that the amount of compensation was not payable to the respondents in accordance with the provisions of the Land Acquisition Act. This question appears to have been agitated for the first time only in the appeal before the High Court. The High Court rejected the contention in this behalf. We find no cogent ground to take a different view.As regards the quantum of compensation, the High Court has referred to the previous decisions which show that the formula gene- rally adopted is to pay one-third of the total compensation to Melavaramdars and two-thirds of the compensation to Kudiwaramdars. In accordance with that formula, the respondents would be entitled to one-half of the compensation payable to Kudiwaramdars. Both the Subordinate Judge and the High Court awarded compensation in accordance with this formula. No cogent ground has been shown to us as to why we should interfere with the concurrent finding in this respect. We also find no reason to disagree with the High Court regarding the date from which interest should run on the amount of compensation.5. | 0[ds]We find it difficult to accede to this submission, for we are of the opinion that in case the State wanted to take over the land under the Abolition Act it should not have proceeded to acquire the interest of the respondents in the land in dispute under the Land Acquisition Act. There were two alternative courses open to the State, either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act. Although the estate was notified under the Abolition Act, the proceedings under that Act were stayed and the matter proceeded under the Land Acquisition Act. As the proceedings which were continued were under the Land Acquisition Act the compensation payable had also to be paid in accordance with the provisions of that Act. The reference which was made by the Land Acquisition officer to the Subordinate Judge under section 18 of the Land Acquisition Act was with respect to the quantum of compensation payable to the respondents because the respondents had felt dissatisfied with the amount awarded to them as compensation by the said officer. The underlying assumption of those proceedings was that the respondents had an interest in the land. If it was the case of t he appellant that the respondents had been divested of their interest in the land and the same had vested in the appellant State, the appellant should have taken appropriate steps to make such a claim in accordance with law. No such claim seems to have been made. The High Court expressly left open the question of the claim of the State Government to the amount of compensation deposited on the score that Melwaramdar respondents were not entitled to it by reason of having lost all their interest in the land at the relevant point of time. We agree with the High Court that it was not open to the appellant-State in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to t he interest of the respondents. There is also we find nothing in the award of the learned Subordinate Judge to show that any question was raised before him that the amount of compensation was not payable to the respondents in accordance with the provisions of the Land Acquisition Act. This question appears to have been agitated for the first time only in the appeal before the High Court. The High Court rejected the contention in this behalf. We find no cogent ground to take a different view.As regards the quantum of compensation, the High Court has referred to the previous decisions which show that the formula gene- rally adopted is to pay one-third of the total compensation to Melavaramdars and two-thirds of the compensation to Kudiwaramdars. In accordance with that formula, the respondents would be entitled to one-half of the compensation payable to Kudiwaramdars. Both the Subordinate Judge and the High Court awarded compensation in accordance with this formula. No cogent ground has been shown to us as to why we should interfere with the concurrent finding in this respect. We also find no reason to disagree with the High Court regarding the date from which interest should run on the amount of compensation. | 0 | 1,387 | 572 | ### Instruction:
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acre for part of the land near the road and at the rate of Rs. 1, 300 per acre for the rest of the land. Rs. 520, 11 As, 1 P the capitalised value of the net rental income was held to be the amount payable to the respondents. The Kudiwaramdars were content with the compensation awarded to them, but the respondents who were, as already mentioned above, Melavaramdars asked for a reference to court under section 18 of the Act for claiming enhanced compensation. According to the respondents, they were entitled to one-third of the value of the totality of the interest in the land. According further to the respondents, compensation for the total land should be awarded at the rate of Rs. 3, 000 per acre Learned Subordinate Judge held that the respondents were entitled to 50 percent of the compensation awarded in respect of the Melawaram interest in the land. The Subordinate Judge in this context relied r upon an earlier decision of the Madras High Court wherein it had been held that the rights of Melavaramdars were not confined only to rent from land and that they had other recognised rights and were entitled to compensation for those rights. The respondents were thus held entitled to compensation for their Melavaramdar interest at the rate of Rs. 750 per acre in respect of land near the road and Rs. 650 per acre in respect of the remaining land. Interest was awarded to the respondents on the compensation amount from December 1, 1949 2-608SCI/76 because, in the opinion of the Subordinate Judge, possession of the land had been taken from that date.On appeal the High Court affirmed the decision of the Subordinate Judge regarding the rate of compensation. The contention advanced on behalf of the appellant that as the land had vested in the Government under the Abolition Act, the respondents were not entitled to compensation under the Land Acquisition Act, was rejected. It was observed that in the land acquisition proceedings the Government was estopped from denying the absence of any interest in the claimants whom the Government had made parties to the proceedings. Regarding the date from which interest on the amount or compensation should accrue, the High Court found that there was no material on the record to show that possession of the land had been taken prior to the date of the award by the Land Acquisition officer. Interest was accordingly directed to run from the date of the award.4. In appeal before us Mr. Rangam on behalf of the appellant-state has urged that as the land in question has vested under the Abolition Act in the State the respondents are not entitled to compensation under the Land Acquisition Act. We find it difficult to accede to this submission, for we are of the opinion that in case the State wanted to take over the land under the Abolition Act it should not have proceeded to acquire the interest of the respondents in the land in dispute under the Land Acquisition Act. There were two alternative courses open to the State, either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act. Although the estate was notified under the Abolition Act, the proceedings under that Act were stayed and the matter proceeded under the Land Acquisition Act. As the proceedings which were continued were under the Land Acquisition Act the compensation payable had also to be paid in accordance with the provisions of that Act. The reference which was made by the Land Acquisition officer to the Subordinate Judge under section 18 of the Land Acquisition Act was with respect to the quantum of compensation payable to the respondents because the respondents had felt dissatisfied with the amount awarded to them as compensation by the said officer. The underlying assumption of those proceedings was that the respondents had an interest in the land. If it was the case of t he appellant that the respondents had been divested of their interest in the land and the same had vested in the appellant State, the appellant should have taken appropriate steps to make such a claim in accordance with law. No such claim seems to have been made. The High Court expressly left open the question of the claim of the State Government to the amount of compensation deposited on the score that Melwaramdar respondents were not entitled to it by reason of having lost all their interest in the land at the relevant point of time. We agree with the High Court that it was not open to the appellant-State in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to t he interest of the respondents. There is also we find nothing in the award of the learned Subordinate Judge to show that any question was raised before him that the amount of compensation was not payable to the respondents in accordance with the provisions of the Land Acquisition Act. This question appears to have been agitated for the first time only in the appeal before the High Court. The High Court rejected the contention in this behalf. We find no cogent ground to take a different view.As regards the quantum of compensation, the High Court has referred to the previous decisions which show that the formula gene- rally adopted is to pay one-third of the total compensation to Melavaramdars and two-thirds of the compensation to Kudiwaramdars. In accordance with that formula, the respondents would be entitled to one-half of the compensation payable to Kudiwaramdars. Both the Subordinate Judge and the High Court awarded compensation in accordance with this formula. No cogent ground has been shown to us as to why we should interfere with the concurrent finding in this respect. We also find no reason to disagree with the High Court regarding the date from which interest should run on the amount of compensation.5.
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### Explanation:
We find it difficult to accede to this submission, for we are of the opinion that in case the State wanted to take over the land under the Abolition Act it should not have proceeded to acquire the interest of the respondents in the land in dispute under the Land Acquisition Act. There were two alternative courses open to the State, either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act. Although the estate was notified under the Abolition Act, the proceedings under that Act were stayed and the matter proceeded under the Land Acquisition Act. As the proceedings which were continued were under the Land Acquisition Act the compensation payable had also to be paid in accordance with the provisions of that Act. The reference which was made by the Land Acquisition officer to the Subordinate Judge under section 18 of the Land Acquisition Act was with respect to the quantum of compensation payable to the respondents because the respondents had felt dissatisfied with the amount awarded to them as compensation by the said officer. The underlying assumption of those proceedings was that the respondents had an interest in the land. If it was the case of t he appellant that the respondents had been divested of their interest in the land and the same had vested in the appellant State, the appellant should have taken appropriate steps to make such a claim in accordance with law. No such claim seems to have been made. The High Court expressly left open the question of the claim of the State Government to the amount of compensation deposited on the score that Melwaramdar respondents were not entitled to it by reason of having lost all their interest in the land at the relevant point of time. We agree with the High Court that it was not open to the appellant-State in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to t he interest of the respondents. There is also we find nothing in the award of the learned Subordinate Judge to show that any question was raised before him that the amount of compensation was not payable to the respondents in accordance with the provisions of the Land Acquisition Act. This question appears to have been agitated for the first time only in the appeal before the High Court. The High Court rejected the contention in this behalf. We find no cogent ground to take a different view.As regards the quantum of compensation, the High Court has referred to the previous decisions which show that the formula gene- rally adopted is to pay one-third of the total compensation to Melavaramdars and two-thirds of the compensation to Kudiwaramdars. In accordance with that formula, the respondents would be entitled to one-half of the compensation payable to Kudiwaramdars. Both the Subordinate Judge and the High Court awarded compensation in accordance with this formula. No cogent ground has been shown to us as to why we should interfere with the concurrent finding in this respect. We also find no reason to disagree with the High Court regarding the date from which interest should run on the amount of compensation.
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Managing Director Ecil Hyderabad Etc. Etc Vs. B. Karunakar Etc. Etc | might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officers findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officers report and the delinquent employees reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employees right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings. The position in law can also be looked at from a slightly different angle. Art.311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employees reply to the Inquiry Officers report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry Officers report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officers report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employees right to defend himself against the charges levelled against him. A denial of the Inquiry Officers report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. | 0[ds]Two things, therefore, emerge from this decision, viz., that it is not the function of the inquiry Officer to propose any punishment even after he records findings of guilt against the delinquent employee. Much less can the Inquiry Officer do so at the stage of serving the charges on the employee. Secondly, it is for the disciplinary authority to propose the punishment after receipt of the report of the Inquiry Officer which suggests that before the authority proposes the punishment, it must have applied its mind to the evidence and the findings recorded by the InquiryUnion of India v. Tulsiram Patel (1985) Supp 2 SCR 131 : AIR 1985 SC 1416 ), this Court had specifically to consider the legal position arising out of the 42nd Amendment of the Constitution by which clause (2) of Art. 311 was amended and the part of the said clause, viz., "and where it is proposed, after such inquiry, to impose on him any such penalty until he has been given reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry" was deleted. In that decision, this Court has not dealt with the procedure to be followed by the disciplinary authority after the Inquiry Officers report is received by it. The question whether the delinquent employee should be heard by the disciplinary authority to prove his innocence of the charges levelled against him when they are held to have been proved by the Inquiry Officer, although he need not be heard on the question of the proposed penalty was neither raised nor answered. This decision, therefore, is not helpful for deciding the saidreason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officers findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officers report and the delinquent employees reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employees right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinarythat has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry Officers report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officers report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employees right to defend himself against the charges levelled against him. A denial of the Inquiry Officers report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of naturalthe Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Art.311(2) applies only to members of the civil services of the Union or an all India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officers report notwithstanding the nature of theIn the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khans case (AIR 1991 SC 471 ) (supra) should apply to employees in all establishments whether Government or non Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.v)The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases.The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a "unnatural expansion of natural justice" which in itself is antithetical to justice.Hence, in all cases where the Inquiry Officers report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court! Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non supply of the report. If after hearing the parties, the Court., Tribunal comes to the conclusion that the non supply of the report would have made no difference to the ultimate findings and the punishment given, the Court / Tribunal should not interfere with the order of punishment. The Court / Tribunal should nut mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts / Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/ Tribunals find that the furnishing of the report would have made a: difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position init cannot be gainsaid that while Mohd. Ramzan Khans case (AIR 1991 SC 471 ) (supra) made the law laid down there prospective in operation, while disposing of the cases which were before the Court, the Court through inadvertence gave relief to the employees concerned in those cases by allowing their appeals and setting aside the disciplinary proceedings. The relief granted was obviously per incuriam. The said relief has, therefore, to be confined only to the employees concerned in those appeals. The law which is expressly made prospective in operation there cannot be applied retrospectively on account of the said error. It is now well settled that the courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends ofhave pointed out that there was no contradiction between the view taken in Mohd. Ramzan Khans case (AIR 1991 SC 471 ) (supra) and the view taken by this court in the earlier cases, and the reliance placed on K. C. Asthanas case (AIR 1988 SC 1338 ) (supra) to contend that a contrary view was taken there was not well merited. It will, therefore, have to be held that notwithstanding the decision of the Central Administrative Tribunal in Premnath K. Sharmas case (1988 (2) ASLJ 449) (supra) and of the Gujarat High Court in H. G. Patels case (1985 (2) 26 Guj LR 1385) (supra) and of the other courts and tribunals, the law was in an unsettled condition till at least 20th November, 1990 on which day the Mohd. Ramzan Khans case was decided. Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punishment which are passed by the disciplinary authority after 20th November, 1990. This is so, notwithstanding the ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The proceedings pending in courts/tribunals in respect of orders of punishment passed prior to 20th November, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down in Mohd. Ramzan Khans case (AIR 1991 SC 471 ) (supra). This is so notwithstanding the view taken by the different benches of the Central Administrative Tribunal or by the High Courts or by this Court in R. K. Vashists case, (1993 Supp (I) SCC 431) (supra).8. The need to make the law laid down in Mohd. Ramzan Khans case, (AIR 1991 SC 471 ) (supra) prospective in operation requires no emphasis. As pointed out above, in view of the unsettled position of the law on the subject, the authorities/ managements all over the country had proceeded on the basis that there was no need to furnish a copy of the report of the Inquiry Officer to the delinquent employee, and innumerable employees have been punished without giving them the copies of the reports. In some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khans case (supra) without furnishing the report of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave rise to the said orders should be reopened on that account. Hence we hold as above. | 0 | 9,260 | 3,037 | ### 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:
might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officers findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officers report and the delinquent employees reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employees right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings. The position in law can also be looked at from a slightly different angle. Art.311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employees reply to the Inquiry Officers report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry Officers report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officers report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employees right to defend himself against the charges levelled against him. A denial of the Inquiry Officers report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
### Response:
0
### Explanation:
being done at present. The courts should avoid resorting to short cuts. Since it is the Courts / Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/ Tribunals find that the furnishing of the report would have made a: difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position init cannot be gainsaid that while Mohd. Ramzan Khans case (AIR 1991 SC 471 ) (supra) made the law laid down there prospective in operation, while disposing of the cases which were before the Court, the Court through inadvertence gave relief to the employees concerned in those cases by allowing their appeals and setting aside the disciplinary proceedings. The relief granted was obviously per incuriam. The said relief has, therefore, to be confined only to the employees concerned in those appeals. The law which is expressly made prospective in operation there cannot be applied retrospectively on account of the said error. It is now well settled that the courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends ofhave pointed out that there was no contradiction between the view taken in Mohd. Ramzan Khans case (AIR 1991 SC 471 ) (supra) and the view taken by this court in the earlier cases, and the reliance placed on K. C. Asthanas case (AIR 1988 SC 1338 ) (supra) to contend that a contrary view was taken there was not well merited. It will, therefore, have to be held that notwithstanding the decision of the Central Administrative Tribunal in Premnath K. Sharmas case (1988 (2) ASLJ 449) (supra) and of the Gujarat High Court in H. G. Patels case (1985 (2) 26 Guj LR 1385) (supra) and of the other courts and tribunals, the law was in an unsettled condition till at least 20th November, 1990 on which day the Mohd. Ramzan Khans case was decided. Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punishment which are passed by the disciplinary authority after 20th November, 1990. This is so, notwithstanding the ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The proceedings pending in courts/tribunals in respect of orders of punishment passed prior to 20th November, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down in Mohd. Ramzan Khans case (AIR 1991 SC 471 ) (supra). This is so notwithstanding the view taken by the different benches of the Central Administrative Tribunal or by the High Courts or by this Court in R. K. Vashists case, (1993 Supp (I) SCC 431) (supra).8. The need to make the law laid down in Mohd. Ramzan Khans case, (AIR 1991 SC 471 ) (supra) prospective in operation requires no emphasis. As pointed out above, in view of the unsettled position of the law on the subject, the authorities/ managements all over the country had proceeded on the basis that there was no need to furnish a copy of the report of the Inquiry Officer to the delinquent employee, and innumerable employees have been punished without giving them the copies of the reports. In some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khans case (supra) without furnishing the report of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave rise to the said orders should be reopened on that account. Hence we hold as above.
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D. K. Yadav Vs. J.M.A. Industries Limited | to act in a manner which is patently impartial and meets the requirements of natural justice. 10. The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both. 11. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Art 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Art 14 has a pervasive processual potency and versatile quality, equilitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Art. 14 and the procedure prescribed by law must be just, fair and reasonable. 12. In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 AIR(SC) 101 - 1991-I-LLJ-395 this Court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Arts. 14 and 21 etc. All matters relating to employment includes the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Art. 309 of the Constitution or the statutory provision or the rules, regulations or instruction having statutory flavour. They must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Art 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Arts. 14 and 21 so as to be just, fair and reasonable procedure is an essential in-built of natural justice. Art. 14 strikes at arbitrary action. It is not the form of the action but the substance of the Court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the effect thereof is the end result. 13. It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D.T C. v. D.T.C. Mazdoor Congress (supra) the Constitution Bench, per majority, held that termination of the service of a workman giving one months notice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside. 14. In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellants plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. (13) of the Certified Standing Order to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13 (2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Art. 14. When so read the impugned action is violative of the principles of natural justice. 15. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct and domestic enquiry nor given the appellant any opportunity to put forth his case. Equally the appellant is the blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. 16. | 1[ds]13. It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D.T C. v. D.T.C. Mazdoor Congress (supra) the Constitution Bench, per majority, held that termination of the service of a workman giving one months notice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside14. In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellants plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. (13) of the Certified Standing Order to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13 (2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Art. 14. When so read the impugned action is violative of the principles of natural justice15. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct and domestic enquiry nor given the appellant any opportunity to put forth his case. Equally the appellant is the blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. | 1 | 3,950 | 442 | ### 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:
to act in a manner which is patently impartial and meets the requirements of natural justice. 10. The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both. 11. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Art 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Art 14 has a pervasive processual potency and versatile quality, equilitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Art. 14 and the procedure prescribed by law must be just, fair and reasonable. 12. In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 AIR(SC) 101 - 1991-I-LLJ-395 this Court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Arts. 14 and 21 etc. All matters relating to employment includes the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Art. 309 of the Constitution or the statutory provision or the rules, regulations or instruction having statutory flavour. They must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Art 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Arts. 14 and 21 so as to be just, fair and reasonable procedure is an essential in-built of natural justice. Art. 14 strikes at arbitrary action. It is not the form of the action but the substance of the Court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the effect thereof is the end result. 13. It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D.T C. v. D.T.C. Mazdoor Congress (supra) the Constitution Bench, per majority, held that termination of the service of a workman giving one months notice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside. 14. In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellants plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. (13) of the Certified Standing Order to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13 (2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Art. 14. When so read the impugned action is violative of the principles of natural justice. 15. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct and domestic enquiry nor given the appellant any opportunity to put forth his case. Equally the appellant is the blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. 16.
### Response:
1
### Explanation:
13. It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D.T C. v. D.T.C. Mazdoor Congress (supra) the Constitution Bench, per majority, held that termination of the service of a workman giving one months notice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside14. In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellants plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. (13) of the Certified Standing Order to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13 (2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Art. 14. When so read the impugned action is violative of the principles of natural justice15. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct and domestic enquiry nor given the appellant any opportunity to put forth his case. Equally the appellant is the blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order.
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SKODA AUTO VOLKSWAGEN INDIA PRIVATE LIMITED Vs. THE STATE OF UTTAR PRADESH & ORS | the vehicles in India were also fitted with cheat devices; (ii) that despite the clarification issued by them that they had not installed any cheat devices, in the vehicles meant to be sold in India, the cars purchased by the complainant were found to contain such defeat devices; and (iii) that therefore, the manufacturer is guilty of commission of various offences. 37. The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any representation in this regard to the petitioner, are all questions of fact, peculiar and particular to the 3rd respondent herein. NGT had no occasion to examine the cars purchased by the 3rd respondent herein. At this stage no one can presume whether the defence of the manufacturer to the police complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law. If the petitioner takes a defence that no such devices were installed in the cars purchased by the 3 rd respondent or that there was no (mis)representation in this regard, it will be a pure question of fact, which cannot be gone into in a quash petition. If the petitioner takes a defence that the installation of such devices, though true, does not violate any law, then it will be a pure question of law. We may be entitled to go into this question in a quash petition, provided the petitioner comes up with a categorical admission that they had installed such devices and yet there was no violation of the law. We do not expect the petitioner to disclose their defence at this stage nor would we speculate what type of defence the petitioner would have to the prosecution. 38. It may not be out of context to mention here that the European Union woke up way back in 2007 to the reality of car makers installing a software that manipulate exhaust emissions, depending upon whether the car ran on a test stand or on the road. After the European Commissions Joint Research Centre found in 2011 that the levels of harmful NOx emissions far exceeded the prescribed levels, a study conducted by the International Council on Clean Transportation (ICCT) revealed similar results in the United States. In September-2015, allegations of installation of manipulation devices by car manufacturers emerged from the US Environmental Protection Agency and this triggered investigations in several European Union States. After claims were lodged and legal action initiated, the German Federal Motor Transport Authority appears to have given permission in June-2016 for the recall of about 2 million vehicles across Europe. In the light of these developments, one of the manufacturers entered into an agreement with the US Environmental Protection Agency in December-2016 giving certain options to the customers. These and the subsequent developments, which attained notoriety as the diesel-gate scandal, led to the German Federal Court of Justice (Bundesgerichtshof-BGH) giving a ruling on May 25, 2020 in favour of the car owners for damages. 39. It is in the backdrop of what transpired in Europe and U.S.A., during the period from 2015 to 2019 that the action initiated by the Automotive Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year 2019, have to be seen. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions from the cars allegedly fitted with manipulative devices. The proceedings before the NGT were not intended to address issues relating to individuals, such as (i) whether any emissions manipulation software, called in common parlance as defeat devices were installed in the vehicles purchased by certain individuals; and (ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars. 40. Therefore, we are unable to agree with the contention of the learned Senior Counsel for the petitioner that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. As a matter of fact, the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code. We do not think that the petitioner can ask for anything more. 41. It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed, AIR 1945 PC 18 the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana vs. Bhajan Lal, (1992) Supp. (1) SCC 335 the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta vs. State of Gujarat, (2001) 7 SCC 659 this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere. | 0[ds]17. Let us take up the second contention first, since it is capable of being dealt with, without much ado. The second contention has two parts namely (i) that there is a long delay in lodging the complaint and (ii) that the 3rd Respondent-complainant, appears to have purchased only 3 vehicles as against his claim to have purchased 7 vehicles.18. The question whether the 3rd Respondent-complainant purchased 3 vehicles as revealed by the VAHAN Portal of the Government or 7 vehicles as claimed by him in his complaint, is a question of fact which has to be established only in the course of investigation/trial. In a petition for quashing the FIR, the Court cannot go into disputed questions of fact.19. The mere delay on the part of the 3rd Respondent-complainant in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents. Therefore, the second ground on which the petitioner seeks to quash the FIR cannot be countenanced.21. As stated earlier, two original applications came to be filed before the NGT in the year 2015, alleging that the manufacturers of the vehicles in question were employing deceit devices. The filing of the original applications coincided with the issue of notice by the Automotive Research Association of India to the manufacturers. We have already indicated broadly, in paragraphs 5-10 above as to what transpired before the NGT.22. The applicants before the NGT did not seek any relief for themselves, as purchasers of vehicles. The reliefs sought by the applicants before the NGT were broad and general. This is why the NGT, by its final order dated 07.03.2019 directed only the CPCB to consider the initiation of prosecution in the light of the applicable statutory regime, while ordering the manufacturers to deposit Rs.500 crores as compensation for the damage caused to the environment.23. Therefore, the order of the NGT, passed on the applications filed by certain individuals not claiming as purchasers of vehicles, cannot be taken as an impediment for an individual who purchased cars from the manufacturers, to lodge a complaint, if he has actually suffered on account of any representation made by the manufacturers.27. Therefore, the interim order passed by this Court not to take any coercive steps has to be understood only in the context of the aforesaid directions of the NGT which became the subject matter of the Civil Appeals. Hence it is futile to contend that the pendency of the Civil Appeals and the interim order passed by this Court should be taken as a deterrent for anyone else to lodge a police complaint and seek an investigation.29. But we do not think so. A little elaboration is required to show why we cannot agree with the above contention of the learned senior counsel appearing for the petitioner.37. The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any representation in this regard to the petitioner, are all questions of fact, peculiar and particular to the 3rd respondent herein. NGT had no occasion to examine the cars purchased by the 3rd respondent herein. At this stage no one can presume whether the defence of the manufacturer to the police complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law. If the petitioner takes a defence that no such devices were installed in the cars purchased by the 3 rd respondent or that there was no (mis)representation in this regard, it will be a pure question of fact, which cannot be gone into in a quash petition. If the petitioner takes a defence that the installation of such devices, though true, does not violate any law, then it will be a pure question of law. We may be entitled to go into this question in a quash petition, provided the petitioner comes up with a categorical admission that they had installed such devices and yet there was no violation of the law. We do not expect the petitioner to disclose their defence at this stage nor would we speculate what type of defence the petitioner would have to the prosecution.38. It may not be out of context to mention here that the European Union woke up way back in 2007 to the reality of car makers installing a software that manipulate exhaust emissions, depending upon whether the car ran on a test stand or on the road. After the European Commissions Joint Research Centre found in 2011 that the levels of harmful NOx emissions far exceeded the prescribed levels, a study conducted by the International Council on Clean Transportation (ICCT) revealed similar results in the United States. In September-2015, allegations of installation of manipulation devices by car manufacturers emerged from the US Environmental Protection Agency and this triggered investigations in several European Union States. After claims were lodged and legal action initiated, the German Federal Motor Transport Authority appears to have given permission in June-2016 for the recall of about 2 million vehicles across Europe. In the light of these developments, one of the manufacturers entered into an agreement with the US Environmental Protection Agency in December-2016 giving certain options to the customers. These and the subsequent developments, which attained notoriety as the diesel-gate scandal, led to the German Federal Court of Justice (Bundesgerichtshof-BGH) giving a ruling on May 25, 2020 in favour of the car owners for damages.39. It is in the backdrop of what transpired in Europe and U.S.A., during the period from 2015 to 2019 that the action initiated by the Automotive Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year 2019, have to be seen. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions from the cars allegedly fitted with manipulative devices. The proceedings before the NGT were not intended to address issues relating to individuals, such as (i) whether any emissions manipulation software, called in common parlance as defeat devices were installed in the vehicles purchased by certain individuals; and (ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars.40. Therefore, we are unable to agree with the contention of the learned Senior Counsel for the petitioner that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. As a matter of fact, the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code. We do not think that the petitioner can ask for anything more.41. It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed, AIR 1945 PC 18 the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana vs. Bhajan Lal, (1992) Supp. (1) SCC 335 the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta vs. State of Gujarat, (2001) 7 SCC 659 this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere. | 0 | 3,882 | 1,549 | ### 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:
the vehicles in India were also fitted with cheat devices; (ii) that despite the clarification issued by them that they had not installed any cheat devices, in the vehicles meant to be sold in India, the cars purchased by the complainant were found to contain such defeat devices; and (iii) that therefore, the manufacturer is guilty of commission of various offences. 37. The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any representation in this regard to the petitioner, are all questions of fact, peculiar and particular to the 3rd respondent herein. NGT had no occasion to examine the cars purchased by the 3rd respondent herein. At this stage no one can presume whether the defence of the manufacturer to the police complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law. If the petitioner takes a defence that no such devices were installed in the cars purchased by the 3 rd respondent or that there was no (mis)representation in this regard, it will be a pure question of fact, which cannot be gone into in a quash petition. If the petitioner takes a defence that the installation of such devices, though true, does not violate any law, then it will be a pure question of law. We may be entitled to go into this question in a quash petition, provided the petitioner comes up with a categorical admission that they had installed such devices and yet there was no violation of the law. We do not expect the petitioner to disclose their defence at this stage nor would we speculate what type of defence the petitioner would have to the prosecution. 38. It may not be out of context to mention here that the European Union woke up way back in 2007 to the reality of car makers installing a software that manipulate exhaust emissions, depending upon whether the car ran on a test stand or on the road. After the European Commissions Joint Research Centre found in 2011 that the levels of harmful NOx emissions far exceeded the prescribed levels, a study conducted by the International Council on Clean Transportation (ICCT) revealed similar results in the United States. In September-2015, allegations of installation of manipulation devices by car manufacturers emerged from the US Environmental Protection Agency and this triggered investigations in several European Union States. After claims were lodged and legal action initiated, the German Federal Motor Transport Authority appears to have given permission in June-2016 for the recall of about 2 million vehicles across Europe. In the light of these developments, one of the manufacturers entered into an agreement with the US Environmental Protection Agency in December-2016 giving certain options to the customers. These and the subsequent developments, which attained notoriety as the diesel-gate scandal, led to the German Federal Court of Justice (Bundesgerichtshof-BGH) giving a ruling on May 25, 2020 in favour of the car owners for damages. 39. It is in the backdrop of what transpired in Europe and U.S.A., during the period from 2015 to 2019 that the action initiated by the Automotive Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year 2019, have to be seen. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions from the cars allegedly fitted with manipulative devices. The proceedings before the NGT were not intended to address issues relating to individuals, such as (i) whether any emissions manipulation software, called in common parlance as defeat devices were installed in the vehicles purchased by certain individuals; and (ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars. 40. Therefore, we are unable to agree with the contention of the learned Senior Counsel for the petitioner that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. As a matter of fact, the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code. We do not think that the petitioner can ask for anything more. 41. It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed, AIR 1945 PC 18 the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana vs. Bhajan Lal, (1992) Supp. (1) SCC 335 the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta vs. State of Gujarat, (2001) 7 SCC 659 this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.
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0
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to contend that the pendency of the Civil Appeals and the interim order passed by this Court should be taken as a deterrent for anyone else to lodge a police complaint and seek an investigation.29. But we do not think so. A little elaboration is required to show why we cannot agree with the above contention of the learned senior counsel appearing for the petitioner.37. The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any representation in this regard to the petitioner, are all questions of fact, peculiar and particular to the 3rd respondent herein. NGT had no occasion to examine the cars purchased by the 3rd respondent herein. At this stage no one can presume whether the defence of the manufacturer to the police complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law. If the petitioner takes a defence that no such devices were installed in the cars purchased by the 3 rd respondent or that there was no (mis)representation in this regard, it will be a pure question of fact, which cannot be gone into in a quash petition. If the petitioner takes a defence that the installation of such devices, though true, does not violate any law, then it will be a pure question of law. We may be entitled to go into this question in a quash petition, provided the petitioner comes up with a categorical admission that they had installed such devices and yet there was no violation of the law. We do not expect the petitioner to disclose their defence at this stage nor would we speculate what type of defence the petitioner would have to the prosecution.38. It may not be out of context to mention here that the European Union woke up way back in 2007 to the reality of car makers installing a software that manipulate exhaust emissions, depending upon whether the car ran on a test stand or on the road. After the European Commissions Joint Research Centre found in 2011 that the levels of harmful NOx emissions far exceeded the prescribed levels, a study conducted by the International Council on Clean Transportation (ICCT) revealed similar results in the United States. In September-2015, allegations of installation of manipulation devices by car manufacturers emerged from the US Environmental Protection Agency and this triggered investigations in several European Union States. After claims were lodged and legal action initiated, the German Federal Motor Transport Authority appears to have given permission in June-2016 for the recall of about 2 million vehicles across Europe. In the light of these developments, one of the manufacturers entered into an agreement with the US Environmental Protection Agency in December-2016 giving certain options to the customers. These and the subsequent developments, which attained notoriety as the diesel-gate scandal, led to the German Federal Court of Justice (Bundesgerichtshof-BGH) giving a ruling on May 25, 2020 in favour of the car owners for damages.39. It is in the backdrop of what transpired in Europe and U.S.A., during the period from 2015 to 2019 that the action initiated by the Automotive Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year 2019, have to be seen. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions from the cars allegedly fitted with manipulative devices. The proceedings before the NGT were not intended to address issues relating to individuals, such as (i) whether any emissions manipulation software, called in common parlance as defeat devices were installed in the vehicles purchased by certain individuals; and (ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars.40. Therefore, we are unable to agree with the contention of the learned Senior Counsel for the petitioner that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. As a matter of fact, the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code. We do not think that the petitioner can ask for anything more.41. It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed, AIR 1945 PC 18 the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana vs. Bhajan Lal, (1992) Supp. (1) SCC 335 the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta vs. State of Gujarat, (2001) 7 SCC 659 this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.
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Ram Mills Ltd. Bombay Vs. Commissioner of Excess Profits Tax, Central, Bombay | this figure he excluded certain items in the return for determining how the profits increased the capital; for example, he excluded money given away as presents and in charity etc.3. Now in order to determine the quantum of excess profits tax payable by an assessee it is necessary under the Act to compute, among other things, the average amount of capital employed by the business during a certain period. This, under Section 2(3), has to be the average amount of capital "as computed in accordance with the second Schedule." That brings in the disputed rule, Rule No. 5 in Schedule II.4. It runs as follows :- > "For the purpose of ascertaining the average amount of capital employed in a business during any period, the profits or losses made in that period shall excepts so far as the contrary is shown, be deemed -(a) to have accrued at an even rate throughout the period; and(b) to have resulted, as they accrued, in a corresponding increase or decrease, as the case may be, in the capital employed in the business."5. The dispute centers round the words we have underlined. The learned counsel for the assessee contends that the words only govern clause (a) and not clause (b). The department has accepted in this case that the profits accrued at an even rate because the assessee has not rebutted that presumption nor has the department attempted to do so. The learned counsel for the assessee contends that that being so, the department is bound to apply clause (b) because the words we have underlined only govern clause (a) and not clause (b). His contention is that Rule 5 is an artificial rule which creates a fiction, namely that the profits accrue evenly over the year even when that is not the fact. Therefore the moment either party shows that this is not the case Rule 5 falls to the ground as a whole because the artificial presumption it created has been rebutted. Clause (b), he contends, cannot have any independent existence because it is a mere corollary to clause (a). In the same way, he says, if clause (a) is accepted, then clause (b) lives also, and as clause (a) has been accepted here clause (b) must also be applied without anything more.We do not agree. The word "deemed" clearly governs both clauses, for the fiction which the Rule creates is not only that the profits shall be deemed to have accrued at an even rate throughout the period, but further that they must be deemed to have resulted, as they accrued, in a corresponding increase or decrease in the capital. In the same way, the words "except so far as the contrary is shown" govern both clauses and it is open to either side to rebut the artificial presumptions created by that Rule by showing that either clause does not represent the true facts. Thus, it can be shown either that the profits did not accrue at an even rate throughout the period or that the profits did not actually go to increase the capital, as for example when it was taken out of the business and handed over to charities and so forth, and if only one of the two presumptions is rebutted, the other stands.6. The High Court resettled the first question we are asked to answer as follows :-"Whether on a true construction of Rule 5 of Schedule II of the Excess Profits Tax Act the expression so far as the contrary is shown applies only to sub-clause (a) or also to sub-clause (b) ?"We agree with the answer given by the High Court, namely that the words "so far as the contrary is shown" apply to both clauses (a) and (b).The next question is about the managing agency commission. Under the Articles of Agreement entered into between the assessee and its managing agents the agents were to be paid a certain commission and the articles provided :-"The said commission shall be due to the said firm yearly on the thirty-first day of December in each and every year during the continuance of this agreement and shall be payable and be paid immediately after annual accounts of the said company have been passed by the shareholders of the company.............."The managing agents left the commission lying with the assessee. The assessee contends that this constitutes a "borrowing" within the meaning of Rule 2A of Schedule II. The Commissioner of Income-tax says it is a "debt" within the meaning of Rule7. We agree with the High Court that this is a "debt" and not a "borrowing".At bottom this is a question of fact. Of course, money so, left could, by a proper agreement between the parties, be converted into a loan, but in the absence of an agreement mere inaction on the part of the managing agents cannot convert the money due to them, and not withdrawn, into a loan. A loan imports a positive act of lending coupled with an acceptance by the other side of the money as a loan. The relationship of borrower and lender cannot ordinarily come about by mere inaction. The clause in the Articles of Agreement quoted above was relied on for the purpose of showing that there was such an agreement in the case. We are unable to construe the provisions in that way. They merely give the managing agents a right to receive their commission at a certain time. If the money is not paid in time it lies with the assessee as a debt due to the agents.8. The second question was framed as follows :-"Whether the managing agency commission payable by the company to its managing agents for the year 1943 is borrowed money for the purposes of Rule 2A or a debt for the purposes of Rule 2 of Schedule II to the Excess Profits Tax Act ?"9. We agree with the High Court that it is a debt under Rule 2 and not a borrowing under Rule 2A. | 0[ds]We do not agree. The word "deemed" clearly governs both clauses, for the fiction which the Rule creates is not only that the profits shall be deemed to have accrued at an even rate throughout the period, but further that they must be deemed to have resulted, as they accrued, in a corresponding increase or decrease in the capital. In the same way, the words "except so far as the contrary is shown" govern both clauses and it is open to either side to rebut the artificial presumptions created by that Rule by showing that either clause does not represent the true facts. Thus, it can be shown either that the profits did not accrue at an even rate throughout the period or that the profits did not actually go to increase the capital, as for example when it was taken out of the business and handed over to charities and so forth, and if only one of the two presumptions is rebutted, the other stands.6. The High Court resettled the first question we are asked to answer as followson a true construction of Rule 5 of Schedule II of the Excess Profits Tax Act the expression so far as the contrary is shown applies only to(a) or also toWe agree with the answer given by the High Court, namely that the words "so far as the contrary is shown" apply to both clauses (a) and (b).We agree with the High Court that this is a "debt" and not a "borrowing".At bottom this is a question of fact. Of course, money so, left could, by a proper agreement between the parties, be converted into a loan, but in the absence of an agreement mere inaction on the part of the managing agents cannot convert the money due to them, and not withdrawn, into a loan. A loan imports a positive act of lending coupled with an acceptance by the other side of the money as a loan. The relationship of borrower and lender cannot ordinarily come about by mere inaction. The clause in the Articles of Agreement quoted above was relied on for the purpose of showing that there was such an agreement in the case. We are unable to construe the provisions in that way. They merely give the managing agents a right to receive their commission at a certain time. If the money is not paid in time it lies with the assessee as a debt due to the agents.We agree with the High Court that it is a debt under Rule 2 and not a borrowing under Rule 2A. | 0 | 1,277 | 486 | ### 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:
this figure he excluded certain items in the return for determining how the profits increased the capital; for example, he excluded money given away as presents and in charity etc.3. Now in order to determine the quantum of excess profits tax payable by an assessee it is necessary under the Act to compute, among other things, the average amount of capital employed by the business during a certain period. This, under Section 2(3), has to be the average amount of capital "as computed in accordance with the second Schedule." That brings in the disputed rule, Rule No. 5 in Schedule II.4. It runs as follows :- > "For the purpose of ascertaining the average amount of capital employed in a business during any period, the profits or losses made in that period shall excepts so far as the contrary is shown, be deemed -(a) to have accrued at an even rate throughout the period; and(b) to have resulted, as they accrued, in a corresponding increase or decrease, as the case may be, in the capital employed in the business."5. The dispute centers round the words we have underlined. The learned counsel for the assessee contends that the words only govern clause (a) and not clause (b). The department has accepted in this case that the profits accrued at an even rate because the assessee has not rebutted that presumption nor has the department attempted to do so. The learned counsel for the assessee contends that that being so, the department is bound to apply clause (b) because the words we have underlined only govern clause (a) and not clause (b). His contention is that Rule 5 is an artificial rule which creates a fiction, namely that the profits accrue evenly over the year even when that is not the fact. Therefore the moment either party shows that this is not the case Rule 5 falls to the ground as a whole because the artificial presumption it created has been rebutted. Clause (b), he contends, cannot have any independent existence because it is a mere corollary to clause (a). In the same way, he says, if clause (a) is accepted, then clause (b) lives also, and as clause (a) has been accepted here clause (b) must also be applied without anything more.We do not agree. The word "deemed" clearly governs both clauses, for the fiction which the Rule creates is not only that the profits shall be deemed to have accrued at an even rate throughout the period, but further that they must be deemed to have resulted, as they accrued, in a corresponding increase or decrease in the capital. In the same way, the words "except so far as the contrary is shown" govern both clauses and it is open to either side to rebut the artificial presumptions created by that Rule by showing that either clause does not represent the true facts. Thus, it can be shown either that the profits did not accrue at an even rate throughout the period or that the profits did not actually go to increase the capital, as for example when it was taken out of the business and handed over to charities and so forth, and if only one of the two presumptions is rebutted, the other stands.6. The High Court resettled the first question we are asked to answer as follows :-"Whether on a true construction of Rule 5 of Schedule II of the Excess Profits Tax Act the expression so far as the contrary is shown applies only to sub-clause (a) or also to sub-clause (b) ?"We agree with the answer given by the High Court, namely that the words "so far as the contrary is shown" apply to both clauses (a) and (b).The next question is about the managing agency commission. Under the Articles of Agreement entered into between the assessee and its managing agents the agents were to be paid a certain commission and the articles provided :-"The said commission shall be due to the said firm yearly on the thirty-first day of December in each and every year during the continuance of this agreement and shall be payable and be paid immediately after annual accounts of the said company have been passed by the shareholders of the company.............."The managing agents left the commission lying with the assessee. The assessee contends that this constitutes a "borrowing" within the meaning of Rule 2A of Schedule II. The Commissioner of Income-tax says it is a "debt" within the meaning of Rule7. We agree with the High Court that this is a "debt" and not a "borrowing".At bottom this is a question of fact. Of course, money so, left could, by a proper agreement between the parties, be converted into a loan, but in the absence of an agreement mere inaction on the part of the managing agents cannot convert the money due to them, and not withdrawn, into a loan. A loan imports a positive act of lending coupled with an acceptance by the other side of the money as a loan. The relationship of borrower and lender cannot ordinarily come about by mere inaction. The clause in the Articles of Agreement quoted above was relied on for the purpose of showing that there was such an agreement in the case. We are unable to construe the provisions in that way. They merely give the managing agents a right to receive their commission at a certain time. If the money is not paid in time it lies with the assessee as a debt due to the agents.8. The second question was framed as follows :-"Whether the managing agency commission payable by the company to its managing agents for the year 1943 is borrowed money for the purposes of Rule 2A or a debt for the purposes of Rule 2 of Schedule II to the Excess Profits Tax Act ?"9. We agree with the High Court that it is a debt under Rule 2 and not a borrowing under Rule 2A.
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We do not agree. The word "deemed" clearly governs both clauses, for the fiction which the Rule creates is not only that the profits shall be deemed to have accrued at an even rate throughout the period, but further that they must be deemed to have resulted, as they accrued, in a corresponding increase or decrease in the capital. In the same way, the words "except so far as the contrary is shown" govern both clauses and it is open to either side to rebut the artificial presumptions created by that Rule by showing that either clause does not represent the true facts. Thus, it can be shown either that the profits did not accrue at an even rate throughout the period or that the profits did not actually go to increase the capital, as for example when it was taken out of the business and handed over to charities and so forth, and if only one of the two presumptions is rebutted, the other stands.6. The High Court resettled the first question we are asked to answer as followson a true construction of Rule 5 of Schedule II of the Excess Profits Tax Act the expression so far as the contrary is shown applies only to(a) or also toWe agree with the answer given by the High Court, namely that the words "so far as the contrary is shown" apply to both clauses (a) and (b).We agree with the High Court that this is a "debt" and not a "borrowing".At bottom this is a question of fact. Of course, money so, left could, by a proper agreement between the parties, be converted into a loan, but in the absence of an agreement mere inaction on the part of the managing agents cannot convert the money due to them, and not withdrawn, into a loan. A loan imports a positive act of lending coupled with an acceptance by the other side of the money as a loan. The relationship of borrower and lender cannot ordinarily come about by mere inaction. The clause in the Articles of Agreement quoted above was relied on for the purpose of showing that there was such an agreement in the case. We are unable to construe the provisions in that way. They merely give the managing agents a right to receive their commission at a certain time. If the money is not paid in time it lies with the assessee as a debt due to the agents.We agree with the High Court that it is a debt under Rule 2 and not a borrowing under Rule 2A.
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M/S. Gayatri Project Ltd Vs. M/S. Sai Krishna Construction | settlement is to be doubted, it cannot be doubted before the Arbitrator. It must be remembered that the appellant is relying on the alleged settlement by way of defence. The respondent has not accepted the same. Nor has the respondent denied the execution of the document. The respondent has also not claimed that the full and final settlement was signed under coercion, undue influence, fraud, misrepresentation or mistake. Furthermore, the appellant had not made a claim on the basis of the settlement. It would have been different, if the appellant had made a claim on the basis of settlement which was denied by the respondent by one or more of the defences, as noticed above. In such circumstances, following the judgment in Nathanis case (supra), it would have to be held that the settlement can only be challenged in "proper proceedings". But these observations would be applicable only if there was a clear cut acceptance by the parties that there was a "full and final settlement".In fact, the matter would be squarely covered against the appellant by the ratio of the judgment in National Insurance Company Limited (supra) wherein this Court has considered the cases which were earlier considered in Nathanis Steel (supra) and observed as follows:- "33. Nathani Steels related to a dispute on account of non-completion of the contract. The Court found that the said dispute was settled by and between the parties as per deed dated 20.12.1980 signed by both parties. The deed referred to the prior discussions between the parties and recorded the amicable settlement of the disputes and differences between the parties in the presence of the Architect on the terms and conditions set out in clauses 1 to 8 thereof. In view of it, the Court rejected the contention of the contractor that the settlement was liable to be set aside on the ground of mistake. A three-Judge Bench of this Court, after referring to the decisions in P.K. Ramaiah and Nay Bharat Builders, held thus: (SCC p.326, para 3) ?3??.. that once the parties have arrived at a settlement in respect of any dispute or difference arising under a contract and that dispute or the difference is amicable settled by way of a final settlement by and between the parties, unless that settlement is set aside in proper proceedings, it cannot lie in the mouth of one of the parties to the settlement to spurn it on the ground that it was a mistake and proceed to invoke the Arbitration clause. If this is permitted the sanctity of contract, the settlement also being a contract, would be wholly lost and it would be open to one party to take the benefit under the settlement and then to question the same on the ground of mistake without having the settlement set aside. In the circumstances, we think that in the instant case since the dispute or difference was finally settled and payments were made as per the settlement, it was not open to the respondent unilaterally to treat the settlement as non est and proceed to invoke the Arbitration clause." 34. What requires to be noticed is that in Nav Bharat Builders and Nathani Steels, this Court on examination of facts, was satisfied that there were negotiations and voluntary settlement of all pending disputes, and the contract was discharged by accord and satisfaction. In P.K. Ramaiah, the Court was satisfied that there was a voluntary acceptance of the measurements and full and final payment of the amount found due, resulting in discharge of the contract, leaving no outstanding claim or pending dispute. In those circumstances, this Court held that after such voluntary accord and satisfaction or discharge of the contract, there could be no arbitrable disputes. 36. In Damodar Valley Corporation, the question that arose for consideration of this Court was as follows: (SCC p. 144 para 4) where one of the parties refers a dispute or disputes to arbitration and the other party takes a plea that there was a final settlement of all claims, is the Court, on an application under Sections 9(b) and 33 of the Act, entitled to enquire into the truth and validity of the averment as to whether there was or was not a final settlement on the ground that if that was proved it would bar a reference to the arbitration inasmuch as the arbitration clause itself would perish." In that case the question arose with reference to a claim by the supplier. The purchaser required the supplier to furnish a full and final receipt. But the supplier did not give such a receipt. Even though there was no discharge voucher, the purchaser contended that the payments made by it were in full and final settlement of the bills. This Court rejected that contention and held that the question whether there has been a settlement of all the claims arising in connection with the contract also postulates the existence of the contract which would mean that the arbitration clause operates. This Court held that the question whether there has been a full and final settlement of a claim under the contract is itself a dispute arising upon or in relation to or in connection with the contract; and where there is an arbitration clause in a contract, notwithstanding the plea that there was a full and final settlement between the parties, that dispute can be referred to arbitration. It was also observed that mere claim of accord and satisfaction may not put an end to the arbitration clause. It is significant that neither P.K. Ramaiah nor Nathani Steels disagreed with the decision in Damodar Valley Corporation but only distinguished it on the ground that there was no full and final discharge voucher showing accord and satisfaction in that case." In our opinion, since there is no acceptance of the full and final settlement by the Respondent which has been relied upon by the appellant, the issue clearly had to be left to the Arbitrator to be adjudicated. | 0[ds]In our opinion, the question as to whether letter datedwould constitute a "full and final settlement"would have to be determined on proper appreciation of the evidence led by the parties. It is, in our opinion, open to two interpretations. Which of the two interpretations is ultimately accepted will have to be decided by the appropriate forum. We are also not inclined to accept the submissions of Mr. Kathpalia that if the alleged settlement is to be doubted, it cannot be doubted before the Arbitrator. It must be remembered that the appellant is relying on the alleged settlement by way of defence. The respondent has not accepted the same. Nor has the respondent denied the execution of the document. The respondent has also not claimed that the full and final settlement was signed under coercion, undue influence, fraud, misrepresentation or mistake. Furthermore, the appellant had not made a claim on the basis of the settlement. It would have been different, if the appellant had made a claim on the basis of settlement which was denied by the respondent by one or more of the defences, as noticed above. In such circumstances, following the judgment in Nathanis case (supra), it would have to be held that the settlement can only be challenged in "proper proceedings". But these observations would be applicable only if there was a clear cut acceptance by the parties that there was a "full and final settlement".Inthat case the question arose with reference to a claim by the supplier. The purchaser required the supplier to furnish a full and final receipt. But the supplier did not give such a receipt. Even though there was no discharge voucher, the purchaser contended that the payments made by it were in full and final settlement of the bills. This Court rejected that contention and held that the question whether there has been a settlement of all the claims arising in connection with the contract also postulates the existence of the contract which would mean that the arbitration clause operates. This Court held that the question whether there has been a full and final settlement of a claim under the contract is itself a dispute arising upon or in relation to or in connection with the contract; and where there is an arbitration clause in a contract, notwithstanding the plea that there was a full and final settlement between the parties, that dispute can be referred to arbitration. It was also observed that mere claim of accord and satisfaction may not put an end to the arbitration clause. It is significant that neither P.K. Ramaiah nor Nathani Steels disagreed with the decision in Damodar Valley Corporation but only distinguished it on the ground that there was no full and final discharge voucher showing accord and satisfaction in that case." In our opinion, since there is no acceptance of the full and final settlement by the Respondent which has been relied upon by the appellant, the issue clearly had to be left to the Arbitrator to be adjudicated. | 0 | 3,435 | 559 | ### Instruction:
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settlement is to be doubted, it cannot be doubted before the Arbitrator. It must be remembered that the appellant is relying on the alleged settlement by way of defence. The respondent has not accepted the same. Nor has the respondent denied the execution of the document. The respondent has also not claimed that the full and final settlement was signed under coercion, undue influence, fraud, misrepresentation or mistake. Furthermore, the appellant had not made a claim on the basis of the settlement. It would have been different, if the appellant had made a claim on the basis of settlement which was denied by the respondent by one or more of the defences, as noticed above. In such circumstances, following the judgment in Nathanis case (supra), it would have to be held that the settlement can only be challenged in "proper proceedings". But these observations would be applicable only if there was a clear cut acceptance by the parties that there was a "full and final settlement".In fact, the matter would be squarely covered against the appellant by the ratio of the judgment in National Insurance Company Limited (supra) wherein this Court has considered the cases which were earlier considered in Nathanis Steel (supra) and observed as follows:- "33. Nathani Steels related to a dispute on account of non-completion of the contract. The Court found that the said dispute was settled by and between the parties as per deed dated 20.12.1980 signed by both parties. The deed referred to the prior discussions between the parties and recorded the amicable settlement of the disputes and differences between the parties in the presence of the Architect on the terms and conditions set out in clauses 1 to 8 thereof. In view of it, the Court rejected the contention of the contractor that the settlement was liable to be set aside on the ground of mistake. A three-Judge Bench of this Court, after referring to the decisions in P.K. Ramaiah and Nay Bharat Builders, held thus: (SCC p.326, para 3) ?3??.. that once the parties have arrived at a settlement in respect of any dispute or difference arising under a contract and that dispute or the difference is amicable settled by way of a final settlement by and between the parties, unless that settlement is set aside in proper proceedings, it cannot lie in the mouth of one of the parties to the settlement to spurn it on the ground that it was a mistake and proceed to invoke the Arbitration clause. If this is permitted the sanctity of contract, the settlement also being a contract, would be wholly lost and it would be open to one party to take the benefit under the settlement and then to question the same on the ground of mistake without having the settlement set aside. In the circumstances, we think that in the instant case since the dispute or difference was finally settled and payments were made as per the settlement, it was not open to the respondent unilaterally to treat the settlement as non est and proceed to invoke the Arbitration clause." 34. What requires to be noticed is that in Nav Bharat Builders and Nathani Steels, this Court on examination of facts, was satisfied that there were negotiations and voluntary settlement of all pending disputes, and the contract was discharged by accord and satisfaction. In P.K. Ramaiah, the Court was satisfied that there was a voluntary acceptance of the measurements and full and final payment of the amount found due, resulting in discharge of the contract, leaving no outstanding claim or pending dispute. In those circumstances, this Court held that after such voluntary accord and satisfaction or discharge of the contract, there could be no arbitrable disputes. 36. In Damodar Valley Corporation, the question that arose for consideration of this Court was as follows: (SCC p. 144 para 4) where one of the parties refers a dispute or disputes to arbitration and the other party takes a plea that there was a final settlement of all claims, is the Court, on an application under Sections 9(b) and 33 of the Act, entitled to enquire into the truth and validity of the averment as to whether there was or was not a final settlement on the ground that if that was proved it would bar a reference to the arbitration inasmuch as the arbitration clause itself would perish." In that case the question arose with reference to a claim by the supplier. The purchaser required the supplier to furnish a full and final receipt. But the supplier did not give such a receipt. Even though there was no discharge voucher, the purchaser contended that the payments made by it were in full and final settlement of the bills. This Court rejected that contention and held that the question whether there has been a settlement of all the claims arising in connection with the contract also postulates the existence of the contract which would mean that the arbitration clause operates. This Court held that the question whether there has been a full and final settlement of a claim under the contract is itself a dispute arising upon or in relation to or in connection with the contract; and where there is an arbitration clause in a contract, notwithstanding the plea that there was a full and final settlement between the parties, that dispute can be referred to arbitration. It was also observed that mere claim of accord and satisfaction may not put an end to the arbitration clause. It is significant that neither P.K. Ramaiah nor Nathani Steels disagreed with the decision in Damodar Valley Corporation but only distinguished it on the ground that there was no full and final discharge voucher showing accord and satisfaction in that case." In our opinion, since there is no acceptance of the full and final settlement by the Respondent which has been relied upon by the appellant, the issue clearly had to be left to the Arbitrator to be adjudicated.
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In our opinion, the question as to whether letter datedwould constitute a "full and final settlement"would have to be determined on proper appreciation of the evidence led by the parties. It is, in our opinion, open to two interpretations. Which of the two interpretations is ultimately accepted will have to be decided by the appropriate forum. We are also not inclined to accept the submissions of Mr. Kathpalia that if the alleged settlement is to be doubted, it cannot be doubted before the Arbitrator. It must be remembered that the appellant is relying on the alleged settlement by way of defence. The respondent has not accepted the same. Nor has the respondent denied the execution of the document. The respondent has also not claimed that the full and final settlement was signed under coercion, undue influence, fraud, misrepresentation or mistake. Furthermore, the appellant had not made a claim on the basis of the settlement. It would have been different, if the appellant had made a claim on the basis of settlement which was denied by the respondent by one or more of the defences, as noticed above. In such circumstances, following the judgment in Nathanis case (supra), it would have to be held that the settlement can only be challenged in "proper proceedings". But these observations would be applicable only if there was a clear cut acceptance by the parties that there was a "full and final settlement".Inthat case the question arose with reference to a claim by the supplier. The purchaser required the supplier to furnish a full and final receipt. But the supplier did not give such a receipt. Even though there was no discharge voucher, the purchaser contended that the payments made by it were in full and final settlement of the bills. This Court rejected that contention and held that the question whether there has been a settlement of all the claims arising in connection with the contract also postulates the existence of the contract which would mean that the arbitration clause operates. This Court held that the question whether there has been a full and final settlement of a claim under the contract is itself a dispute arising upon or in relation to or in connection with the contract; and where there is an arbitration clause in a contract, notwithstanding the plea that there was a full and final settlement between the parties, that dispute can be referred to arbitration. It was also observed that mere claim of accord and satisfaction may not put an end to the arbitration clause. It is significant that neither P.K. Ramaiah nor Nathani Steels disagreed with the decision in Damodar Valley Corporation but only distinguished it on the ground that there was no full and final discharge voucher showing accord and satisfaction in that case." In our opinion, since there is no acceptance of the full and final settlement by the Respondent which has been relied upon by the appellant, the issue clearly had to be left to the Arbitrator to be adjudicated.
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Workmen Of Dewan Tea Estate And Ors Vs. The Management | suggested or shown that their position was any better than that of the companies before us. It is also true that at the relevant time all the tea companies in Cachar in general, and the Managing Agents of the nine companies before us in particular M/s. Macneill and Barry Ltd. were trying their best to persuade the Assam Government to give them some relief in the matter of taxation. But the question which we have to decide is whether the financial position disclosed by the evidence on the record can be described as constituting a cause beyond the control of the respondent. We are not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by the Rule 8(a)(i) before the clause in regard in other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Rule 8(a)(i).9. Rule 8(a)(iii) which refers to temporary curtailment of production must obviously be read in the light of R. 8(a)(i) and if the case of the present lay off does not fall under R. 8(a)(i), R. 8 (a)(iii) would not improve the position.10. Mr. Banerjee has then urged that the present Standing Orders which were duly certified under the Standing Orders Act came into force in 1950, whereas S. 2(kkk) which defines a lay off was added to the Act by the Amending Act 43 of 1953 on October 24, 1953. His argument is that the Standing Orders having been certified before the definition of the lay off was introduced in the Act, the respondent is entitled to rely upon the said definition in support of the plea that the impugned lay off was justified. Basing himself on the definition of the lay off as prescribed by S. 2(kkk), Mr. Banerjee urged that this definition was wider than R. 8(a)(i) of the respondents Standing Orders and would take in the trading reasons on which he relies. We are not prepared to accept the argument that in the present case, the respondent can rely on the definition of lay off as prescribed by S. 2(kkk). It will be recalled that the Standing Orders which have been certified under the Standing Orders Act become part of the statutory terms and conditions of service between the industrial employer and his employees. Section 10(1) of the Standing Orders Act provides that the Standing Orders finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modifications thereof came into operation. If the Standing Orders thus become the part of the statutory terms and conditions of service, they will govern, the relations between the parties unless, of course, it can be shown that any provision of the Act is inconsistent with the said Standing Orders. In that case, it may be permissible to urge that the statutory provision contained in the Act should override the Standing Order which had been certified before the said statutory provision was enacted. Assuming without deciding that S. 2(kkk) may include the trading reasons as suggested by Mr. Banerjee, the definition prescribed by S. 2(kkk) is not a part of the operative provisions of the Act, and so, the argument that there is inconsistency between the definition and the relevant Rule of the Standing Orders does not assist Mr. Banerjees case. If there had been a provision in the Act specifically providing that an employer would be entitled to lay off his workmen for the reasons prescribed by S. 2(kkk), it might have been another matter.The only provision on which reliance has been placed is contained in S. 25C and that, as we have already seen, merely takes in the definition of lay off inasmuch as it refers to the workmen as laid off and provides the manner in which compensation would be paid to them. As alleged conflict between the definition of lay off and the substantive rule of the standing orders would not, therefore, help the respondent to contend that the definition over-rides the statutory condition as to lay off included in the certified Standing Order. Therefore, we do not think Mr. Banerjee would be entitled to contend that S. 2(kkk) of the Act is wider than the relevant Rule in the Standing Orders and should apply to the facts of this case. We ought to make it clear that in dealing with this argument, we have not thought it necessary to consider whether the broad and general construction of S. 2(kkk) for which Mr. Banerjee contends is justified. In fact, Mr. Agarwala for the appellants has very strongly urged that the words "for any reason" found in S. 2(kkk) will not take in the trading considerations. He contends and prima facie with some force that the said words must be construed ejusdem generis with the words that precede them, (vide Management of Kairbetta Estate, Kotagiri v. Rajamanickam, 1960-3 SCR 371 : (AIR 1960 SC 893 ). According to him, the circumstances specified in S. 2(kkk) which justify a lay off must be integrally connected with production, and, so, trading reasons cannot be included in that definition. According to this argument, the distinguishing features of the genus of which the several circumstances mentioned in the definition are different species, are: they are beyond the control of the employer, are expected to be of a short duration, and are of compulsive effect. As we have already indicated, we do not think it necessary to decide this interesting point in the present appeal because we are satisfied that the present dispute must be governed by R. 8(a)(i) of the respondents Standing Orders. | 1[ds]We are not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by the Rule 8(a)(i) before the clause in regard in other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Ruleare not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by the Rule 8(a)(i) before the clause in regard in other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Rulewe do not think Mr. Banerjee would be entitled to contend that S. 2(kkk) of the Act is wider than the relevant Rule in the Standing Orders and should apply to the facts of this case. We ought to make it clear that in dealing with this argument, we have not thought it necessary to consider whether the broad and general construction of S. 2(kkk) for which Mr. Banerjee contends is justified. In fact, Mr. Agarwala for the appellants has very strongly urged that the words "for any reason" found in S. 2(kkk) will not take in the trading considerations. He contends and prima facie with some force that the said words must be construed ejusdem generis with the words that precede them, (vide Management of Kairbetta Estate, Kotagiri v. Rajamanickam, 1960-3 SCR 371 : (AIR 1960 SC 893 ). According to him, the circumstances specified in S. 2(kkk) which justify a lay off must be integrally connected with production, and, so, trading reasons cannot be included in that definition. According to this argument, the distinguishing features of the genus of which the several circumstances mentioned in the definition are different species, are: they are beyond the control of the employer, are expected to be of a short duration, and are of compulsive effect. As we have already indicated, we do not think it necessary to decide this interesting point in the present appeal because we are satisfied that the present dispute must be governed by R. 8(a)(i) of the respondents Standing Orders. | 1 | 4,143 | 503 | ### Instruction:
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suggested or shown that their position was any better than that of the companies before us. It is also true that at the relevant time all the tea companies in Cachar in general, and the Managing Agents of the nine companies before us in particular M/s. Macneill and Barry Ltd. were trying their best to persuade the Assam Government to give them some relief in the matter of taxation. But the question which we have to decide is whether the financial position disclosed by the evidence on the record can be described as constituting a cause beyond the control of the respondent. We are not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by the Rule 8(a)(i) before the clause in regard in other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Rule 8(a)(i).9. Rule 8(a)(iii) which refers to temporary curtailment of production must obviously be read in the light of R. 8(a)(i) and if the case of the present lay off does not fall under R. 8(a)(i), R. 8 (a)(iii) would not improve the position.10. Mr. Banerjee has then urged that the present Standing Orders which were duly certified under the Standing Orders Act came into force in 1950, whereas S. 2(kkk) which defines a lay off was added to the Act by the Amending Act 43 of 1953 on October 24, 1953. His argument is that the Standing Orders having been certified before the definition of the lay off was introduced in the Act, the respondent is entitled to rely upon the said definition in support of the plea that the impugned lay off was justified. Basing himself on the definition of the lay off as prescribed by S. 2(kkk), Mr. Banerjee urged that this definition was wider than R. 8(a)(i) of the respondents Standing Orders and would take in the trading reasons on which he relies. We are not prepared to accept the argument that in the present case, the respondent can rely on the definition of lay off as prescribed by S. 2(kkk). It will be recalled that the Standing Orders which have been certified under the Standing Orders Act become part of the statutory terms and conditions of service between the industrial employer and his employees. Section 10(1) of the Standing Orders Act provides that the Standing Orders finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modifications thereof came into operation. If the Standing Orders thus become the part of the statutory terms and conditions of service, they will govern, the relations between the parties unless, of course, it can be shown that any provision of the Act is inconsistent with the said Standing Orders. In that case, it may be permissible to urge that the statutory provision contained in the Act should override the Standing Order which had been certified before the said statutory provision was enacted. Assuming without deciding that S. 2(kkk) may include the trading reasons as suggested by Mr. Banerjee, the definition prescribed by S. 2(kkk) is not a part of the operative provisions of the Act, and so, the argument that there is inconsistency between the definition and the relevant Rule of the Standing Orders does not assist Mr. Banerjees case. If there had been a provision in the Act specifically providing that an employer would be entitled to lay off his workmen for the reasons prescribed by S. 2(kkk), it might have been another matter.The only provision on which reliance has been placed is contained in S. 25C and that, as we have already seen, merely takes in the definition of lay off inasmuch as it refers to the workmen as laid off and provides the manner in which compensation would be paid to them. As alleged conflict between the definition of lay off and the substantive rule of the standing orders would not, therefore, help the respondent to contend that the definition over-rides the statutory condition as to lay off included in the certified Standing Order. Therefore, we do not think Mr. Banerjee would be entitled to contend that S. 2(kkk) of the Act is wider than the relevant Rule in the Standing Orders and should apply to the facts of this case. We ought to make it clear that in dealing with this argument, we have not thought it necessary to consider whether the broad and general construction of S. 2(kkk) for which Mr. Banerjee contends is justified. In fact, Mr. Agarwala for the appellants has very strongly urged that the words "for any reason" found in S. 2(kkk) will not take in the trading considerations. He contends and prima facie with some force that the said words must be construed ejusdem generis with the words that precede them, (vide Management of Kairbetta Estate, Kotagiri v. Rajamanickam, 1960-3 SCR 371 : (AIR 1960 SC 893 ). According to him, the circumstances specified in S. 2(kkk) which justify a lay off must be integrally connected with production, and, so, trading reasons cannot be included in that definition. According to this argument, the distinguishing features of the genus of which the several circumstances mentioned in the definition are different species, are: they are beyond the control of the employer, are expected to be of a short duration, and are of compulsive effect. As we have already indicated, we do not think it necessary to decide this interesting point in the present appeal because we are satisfied that the present dispute must be governed by R. 8(a)(i) of the respondents Standing Orders.
### Response:
1
### Explanation:
We are not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by the Rule 8(a)(i) before the clause in regard in other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Ruleare not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by the Rule 8(a)(i) before the clause in regard in other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Rulewe do not think Mr. Banerjee would be entitled to contend that S. 2(kkk) of the Act is wider than the relevant Rule in the Standing Orders and should apply to the facts of this case. We ought to make it clear that in dealing with this argument, we have not thought it necessary to consider whether the broad and general construction of S. 2(kkk) for which Mr. Banerjee contends is justified. In fact, Mr. Agarwala for the appellants has very strongly urged that the words "for any reason" found in S. 2(kkk) will not take in the trading considerations. He contends and prima facie with some force that the said words must be construed ejusdem generis with the words that precede them, (vide Management of Kairbetta Estate, Kotagiri v. Rajamanickam, 1960-3 SCR 371 : (AIR 1960 SC 893 ). According to him, the circumstances specified in S. 2(kkk) which justify a lay off must be integrally connected with production, and, so, trading reasons cannot be included in that definition. According to this argument, the distinguishing features of the genus of which the several circumstances mentioned in the definition are different species, are: they are beyond the control of the employer, are expected to be of a short duration, and are of compulsive effect. As we have already indicated, we do not think it necessary to decide this interesting point in the present appeal because we are satisfied that the present dispute must be governed by R. 8(a)(i) of the respondents Standing Orders.
|
Ramachandraiah Etc Vs. Land Acquisition Officer, Sagar | appear to have been issued to them either by the Special Acquisition Officer or by District Judge though some of them did appear as witnesses for the claimants for deposing to the income of the land. Presumably, no such notices were issued to them on the ground that they were annual tenants and had, therefore, no alienable interest in the lands cultivated by them. We do not know whether by the expression annual tenants was meant that their tenancy was for one year only and would lapse on the expiry of the year. Even if it were so, by the time the notification under Ss. 4 and 6 of the Act were issued, (in April and August 1960), the Mysore Tenancy Act XIII of 1952 had come into force. Section 4 of that Act provided that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if the conditions there set out are satisfied. Under S. 5 (1), there can be no tenancy for less than five years and all tenancies in force on the date of the commencement of the Act shall be deemed to be tenancies for a further period of five years from such date of the commencement of the Act. Under sub-sec. (2) of S. 5, no tenancy is terminable before expiry of the period of five years except on the grounds set out in S. 15, e.g., default by such a tenant in paying rent or the fair rent fixed under the Act as the case may be.5. The Mysore Tenancy Act, 13 of 1952 was amended first by Mysore Act, 16 of 1957, and again by Mysore Acts 24 of 1962 and 12 of 1963. Section 4 of Act 16 of 1957 provided that every tenancy in respect of which the period of five years specified in S. 5 of Act 13 of 1952 was due to expire during 1957 shall be deemed to be a tenancy for a further period of one year from the date on which the said period of five years was due to expire. Sub-sec. (3) of Sec. 4 further provided that notwithstanding anything contained in any law, notice given before the 11th day of March, 1957 by landlords to tenant terminating their tenancies at the expiry of the period of five years referred to in sub-sec. (1) on the ground of such expiry or on the ground that the landlord required the land for his personal cultivation shall be deemed to have been cancelled and shall have no effect and all applications made by landlords for possession of lands in pursuance of rent notices shall on the 11th March, 1957 stand dismissed. In 1961, the Mysore Legislature passed the Mysore Tenants (Temporary Protection From Eviction) Act, 37 of 1961. The Act was to remain in force till March 31, 1962 or such other date not later than one year after that date as the State Government may by notification specify. Section 3 of the Act provided that notwithstanding anything contained in any law or agreement, decree or order of a civil or revenue Court or a tribunal, no tenant shall be evicted from the land held by him as a tenant during the period that the Act remained in force. Section 4 of the Act stayed during the operation of the Act all suits and proceedings in execution of decrees or orders and other proceedings for the eviction of tenants from the lands held by them as such. The result of these provisions would appear to be that though the tenants of the lands in these appeals were inducted thereon originally as annual tenants, they got a fixed and secured tenure for additional periods and as deemed tenants they ceased to be persons entitled to possession only for one year as provided by their original leases. The point, therefore, is whether they acquired as a result of these provisions any share in the compensation.6. In view of these provisions the Special Land Acquisition Officer and the District Judge ought to have ascertained (which neither of them did) whether the tenants had any interest in the land and whether they were entitled to any share in the compensation payable in respect of lands under their cultivation. In the absence of the tenants before us, we find it difficult to go into these questions. Nonetheless, we do feel that in fairness to the tenants (if they are still on the land) their interests ought to have been ascertained and if they are entitled in law to any share, compensation according to the market value of the land should be ascertained afresh and their share, if allowable to them, should be allowed to them. If this were to be done, the annual income of the lands in question will have to be ascertained afresh from the evidence on record or otherwise and the net total income after deducting the costs of cultivation and other outgoings ascertained in order to arrive at the correct market value. If the position of the tenants as a result of the operation of the Tenancy Act has changed so as to make them entitled to a part of the compensation, that also will require to be ascertained. This is, of course, subject to the bar of limitation under S. 18 of the Act, for, it would prima facie appear that the tenants by appearing as witnesses for the claimants knew of the acquisition and the award and yet had made no application to be made parties to the reference before the District Judge. Even if it is found that the tenants are not entitled to any share in the compensation, the lands under tenants cultivation and those personally cultivated by the claimants cannot be valued on the same footing or the grounds set out earlier. A fresh calculation of compensation in any event of lands under the claimants cultivation is called for on the principles set out herein above. | 1[ds]It may be that resort may be had to fair rent as a true measure of income derived from a particular land by its proprietor for fixing the compensation by multiplying it by 20 years as has been done here by the High Court where no other method of valuation is possible. But where the acquired land has been under the personal cultivation of a claimant, the annual rent obtained by him from a tenant from another land may not be the correct or real income obtainable by the claimant. The rent of the land under a tenants cultivation may have been agreed upon several years ago or may not otherwise be the fair rent by reason of several factors. Quite apart from that, the two lands may not be equal in quality, situation and productivity and therefore the rent obtained for one cannot be the same for the other. Obviously, therefore, the annual rent obtained by a claimant from his tenant for one acquired piece of land cannot be applied as a measure for another piece of land which is personally cultivated by the claimant. The net return to the claimant from each of the two lands is bound to differ. Ordinarily, rent payable by a tenant would be fixed after calculating approximately the gross income less the tenants costs of cultivation, cost of labour expended by him and a certain amount of return for all the labour thrown in by him. In the case of land personally cultivated by a claimant, on the other hand, the income derived by such a claimant is arrived at by taking the gross income and deducting therefrom his expenses of cultivation, other expenses and outgoings. The net income thus arrived at is usually multiplied by 20 years purchase and the amount so calculated would be considered as equivalent to market value. In our view, the High Court was in error in equating the lands cultivated by the tenants and those under the personal cultivation of the claimants and applying to both a uniform measure, viz., the annual rent obtained from the former for fixing compensation. The two kinds of lands ought to have been separately treated and even if the rent in the case of tenant-occupied land was taken as a measure for such land, that could not properly be the measure for arriving at the market value of the land under the claimants personalresult of these provisions would appear to be that though the tenants of the lands in these appeals were inducted thereon originally as annual tenants, they got a fixed and secured tenure for additional periods and as deemed tenants they ceased to be persons entitled to possession only for one year as provided by their original leases. The point, therefore, is whether they acquired as a result of these provisions any share in the compensation.6. In view of these provisions the Special Land Acquisition Officer and the District Judge ought to have ascertained (which neither of them did) whether the tenants had any interest in the land and whether they were entitled to any share in the compensation payable in respect of lands under their cultivation. In the absence of the tenants before us, we find it difficult to go into these questions. Nonetheless, we do feel that in fairness to the tenants (if they are still on the land) their interests ought to have been ascertained and if they are entitled in law to any share, compensation according to the market value of the land should be ascertained afresh and their share, if allowable to them, should be allowed to them. If this were to be done, the annual income of the lands in question will have to be ascertained afresh from the evidence on record or otherwise and the net total income after deducting the costs of cultivation and other outgoings ascertained in order to arrive at the correct market value. If the position of the tenants as a result of the operation of the Tenancy Act has changed so as to make them entitled to a part of the compensation, that also will require to be ascertained. This is, of course, subject to the bar of limitation under S. 18 of the Act, for, it would prima facie appear that the tenants by appearing as witnesses for the claimants knew of the acquisition and the award and yet had made no application to be made parties to the reference before the District Judge. Even if it is found that the tenants are not entitled to any share in the compensation, the lands under tenants cultivation and those personally cultivated by the claimants cannot be valued on the same footing or the grounds set out earlier. A fresh calculation of compensation in any event of lands under the claimants cultivation is called for on the principles set out herein above. | 1 | 2,318 | 874 | ### 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:
appear to have been issued to them either by the Special Acquisition Officer or by District Judge though some of them did appear as witnesses for the claimants for deposing to the income of the land. Presumably, no such notices were issued to them on the ground that they were annual tenants and had, therefore, no alienable interest in the lands cultivated by them. We do not know whether by the expression annual tenants was meant that their tenancy was for one year only and would lapse on the expiry of the year. Even if it were so, by the time the notification under Ss. 4 and 6 of the Act were issued, (in April and August 1960), the Mysore Tenancy Act XIII of 1952 had come into force. Section 4 of that Act provided that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if the conditions there set out are satisfied. Under S. 5 (1), there can be no tenancy for less than five years and all tenancies in force on the date of the commencement of the Act shall be deemed to be tenancies for a further period of five years from such date of the commencement of the Act. Under sub-sec. (2) of S. 5, no tenancy is terminable before expiry of the period of five years except on the grounds set out in S. 15, e.g., default by such a tenant in paying rent or the fair rent fixed under the Act as the case may be.5. The Mysore Tenancy Act, 13 of 1952 was amended first by Mysore Act, 16 of 1957, and again by Mysore Acts 24 of 1962 and 12 of 1963. Section 4 of Act 16 of 1957 provided that every tenancy in respect of which the period of five years specified in S. 5 of Act 13 of 1952 was due to expire during 1957 shall be deemed to be a tenancy for a further period of one year from the date on which the said period of five years was due to expire. Sub-sec. (3) of Sec. 4 further provided that notwithstanding anything contained in any law, notice given before the 11th day of March, 1957 by landlords to tenant terminating their tenancies at the expiry of the period of five years referred to in sub-sec. (1) on the ground of such expiry or on the ground that the landlord required the land for his personal cultivation shall be deemed to have been cancelled and shall have no effect and all applications made by landlords for possession of lands in pursuance of rent notices shall on the 11th March, 1957 stand dismissed. In 1961, the Mysore Legislature passed the Mysore Tenants (Temporary Protection From Eviction) Act, 37 of 1961. The Act was to remain in force till March 31, 1962 or such other date not later than one year after that date as the State Government may by notification specify. Section 3 of the Act provided that notwithstanding anything contained in any law or agreement, decree or order of a civil or revenue Court or a tribunal, no tenant shall be evicted from the land held by him as a tenant during the period that the Act remained in force. Section 4 of the Act stayed during the operation of the Act all suits and proceedings in execution of decrees or orders and other proceedings for the eviction of tenants from the lands held by them as such. The result of these provisions would appear to be that though the tenants of the lands in these appeals were inducted thereon originally as annual tenants, they got a fixed and secured tenure for additional periods and as deemed tenants they ceased to be persons entitled to possession only for one year as provided by their original leases. The point, therefore, is whether they acquired as a result of these provisions any share in the compensation.6. In view of these provisions the Special Land Acquisition Officer and the District Judge ought to have ascertained (which neither of them did) whether the tenants had any interest in the land and whether they were entitled to any share in the compensation payable in respect of lands under their cultivation. In the absence of the tenants before us, we find it difficult to go into these questions. Nonetheless, we do feel that in fairness to the tenants (if they are still on the land) their interests ought to have been ascertained and if they are entitled in law to any share, compensation according to the market value of the land should be ascertained afresh and their share, if allowable to them, should be allowed to them. If this were to be done, the annual income of the lands in question will have to be ascertained afresh from the evidence on record or otherwise and the net total income after deducting the costs of cultivation and other outgoings ascertained in order to arrive at the correct market value. If the position of the tenants as a result of the operation of the Tenancy Act has changed so as to make them entitled to a part of the compensation, that also will require to be ascertained. This is, of course, subject to the bar of limitation under S. 18 of the Act, for, it would prima facie appear that the tenants by appearing as witnesses for the claimants knew of the acquisition and the award and yet had made no application to be made parties to the reference before the District Judge. Even if it is found that the tenants are not entitled to any share in the compensation, the lands under tenants cultivation and those personally cultivated by the claimants cannot be valued on the same footing or the grounds set out earlier. A fresh calculation of compensation in any event of lands under the claimants cultivation is called for on the principles set out herein above.
### Response:
1
### Explanation:
It may be that resort may be had to fair rent as a true measure of income derived from a particular land by its proprietor for fixing the compensation by multiplying it by 20 years as has been done here by the High Court where no other method of valuation is possible. But where the acquired land has been under the personal cultivation of a claimant, the annual rent obtained by him from a tenant from another land may not be the correct or real income obtainable by the claimant. The rent of the land under a tenants cultivation may have been agreed upon several years ago or may not otherwise be the fair rent by reason of several factors. Quite apart from that, the two lands may not be equal in quality, situation and productivity and therefore the rent obtained for one cannot be the same for the other. Obviously, therefore, the annual rent obtained by a claimant from his tenant for one acquired piece of land cannot be applied as a measure for another piece of land which is personally cultivated by the claimant. The net return to the claimant from each of the two lands is bound to differ. Ordinarily, rent payable by a tenant would be fixed after calculating approximately the gross income less the tenants costs of cultivation, cost of labour expended by him and a certain amount of return for all the labour thrown in by him. In the case of land personally cultivated by a claimant, on the other hand, the income derived by such a claimant is arrived at by taking the gross income and deducting therefrom his expenses of cultivation, other expenses and outgoings. The net income thus arrived at is usually multiplied by 20 years purchase and the amount so calculated would be considered as equivalent to market value. In our view, the High Court was in error in equating the lands cultivated by the tenants and those under the personal cultivation of the claimants and applying to both a uniform measure, viz., the annual rent obtained from the former for fixing compensation. The two kinds of lands ought to have been separately treated and even if the rent in the case of tenant-occupied land was taken as a measure for such land, that could not properly be the measure for arriving at the market value of the land under the claimants personalresult of these provisions would appear to be that though the tenants of the lands in these appeals were inducted thereon originally as annual tenants, they got a fixed and secured tenure for additional periods and as deemed tenants they ceased to be persons entitled to possession only for one year as provided by their original leases. The point, therefore, is whether they acquired as a result of these provisions any share in the compensation.6. In view of these provisions the Special Land Acquisition Officer and the District Judge ought to have ascertained (which neither of them did) whether the tenants had any interest in the land and whether they were entitled to any share in the compensation payable in respect of lands under their cultivation. In the absence of the tenants before us, we find it difficult to go into these questions. Nonetheless, we do feel that in fairness to the tenants (if they are still on the land) their interests ought to have been ascertained and if they are entitled in law to any share, compensation according to the market value of the land should be ascertained afresh and their share, if allowable to them, should be allowed to them. If this were to be done, the annual income of the lands in question will have to be ascertained afresh from the evidence on record or otherwise and the net total income after deducting the costs of cultivation and other outgoings ascertained in order to arrive at the correct market value. If the position of the tenants as a result of the operation of the Tenancy Act has changed so as to make them entitled to a part of the compensation, that also will require to be ascertained. This is, of course, subject to the bar of limitation under S. 18 of the Act, for, it would prima facie appear that the tenants by appearing as witnesses for the claimants knew of the acquisition and the award and yet had made no application to be made parties to the reference before the District Judge. Even if it is found that the tenants are not entitled to any share in the compensation, the lands under tenants cultivation and those personally cultivated by the claimants cannot be valued on the same footing or the grounds set out earlier. A fresh calculation of compensation in any event of lands under the claimants cultivation is called for on the principles set out herein above.
|
Alembic Glass Industries Ltd. Baroda & Others Vs. The Workmen & Others | when he is certified by a competent medical officer to be ill for that or a longer period. Sickness is a serious misfortune to a workman for it not only prevents him from earning his normal wages, but is a drain on his meagre financial resources by way of additional expenditure on food , nursing and visits to the medical centre etc. It has not been disputed before us that the "region-cure-industry" basis is suitable in cases like the present for examining any controversy regarding the workmans demand for additional benefits, but it has been argued by the learned counsel for the appellants that the award of the benefit of sick leave to the workers of the two Companies could not be justified on that basis. We find that the Tribunal has examined this aspect of the controversy also, and we have no reason to disagree with the view which it has taken. As has been stated, the Act came into force in the region concerned on December 14, 1969, and it has not been disputed before us that till then it was the practice in the glass industries to grant sick leave with wages for periods varying from 6 to 10 days. In fact in the case of the Alembic Glass Industries Ltd., Baroda, the Tribunal made an award for 7 days sick leave on full pay and dearness allowance in 1958, subject to the condition that the benefit would cease to apply when the benefits of the Act became available to the workmen. The benefit of sick leave was therefore lost when the Act was made applicable to the region from December 14, 1969. That was obviously under a mistaken impression of the sickness benefit which the Act allowed for, as has been shown, it does not deal with all aspects of the demand for sickness benefit and does not, at any rate, provide for the grant of leave on full emoluments during the period of the workmans physical incapacity to earn his normal wages because of his sickness. It therefore appears that the Tribunal could not be said to have erred in restoring the benefit which the workmen were receiving under the award of 1958, for it was taken away under the mistaken impression that it had been adequately replaced by the new provisions on the coming into force of the Act.The appellants have filed a statement (Ex. 7) containing information regarding the companies which have provided the benefit of sick leave to its workmen in the region. It shows that even though the Act was applicable to the workers of the Precision Bearings India Ltd., Baroda, Hindustan Brown Bovari Ltd., Baroda, the Associated Cement Companies Ltd., and M.S. University Press, Baroda, the benefit of sick leave has been allowed to the workmen of those companies . It is therefore .futile to contend that the benefit should not be admissible on the ground that it had not been allowed by other companies in the region. We also find that such a benefit has been allowed in the ca se of glass industries by Shree Vallabha Glass Works Ltd., Vallabh Vidyanagar, Ogale Glass Works Ltd., Oglewadi and Vijay Glass Works, Bombay. Even the Alembic Glass Industries Ltd. has allowed 6 days sick leave in a year to its employees in Bangalore and it is permissible to accumulate it upto 12 days in addition to the current years leave, under a settlement dated July 17, 1969, which is being continued even after the coming into force of the Act. Learned counsel for the appellants have invited our attention to the case between the Textile Labour Association and the Ahmedabad Millowners Association where the demand for sick leave was refused but, as the Tribunal has pointed out, the demand there was for a months leave every year in addition to 15 days casual leave and pay in lieu of privilege leave. The Full Bench of the Industrial Court in that case considered the paying capacity of the mills also, and held that the additional leave demanded by the workmen would be very much beyond the paying capacity of the industry. As against this, the Tribunal has examined the financial capacity of the two companies in question, and has given adequate reasons for holding that they are in good financial position and can bear the additional burden of sick leave. Learned counsel for the appellants have in fact not advanced any argument to the contrary.Mr. S.T. Desai has raised the argument, in the case of Jyoti Ltd., Baroda, that the Tribunal laboured under a misconception that the sickness benefit would be lost for the first two days of sickness under the first proviso to s. 49 of the Act, that the Tribunal should not, in any view of the matter, have given the benefit of 7 days sick leave, and that the workmen did not deserve anything more than sickness benefit for the first two days also. According to him, what has been awarded by the Tribunal is additional privilege leave for 7 days in the garb of sick leave. The argument is however futile because, as has been stated, the Tribunal has correctly examined the controversy and given adequate reasons for allowing the benefit of 7 days sick leave in the manner set out in the award. Such a leave could not be categorised as privilege leave as, by its very nature, it would be admissible only in the case of actual sickness certified by a registered medical practitioner.9. It would thus appear that the appellants have not been able to show that the awards in question are illegal or unjust; or would adversely affect the economy or the industrial peace, or lead to imbalance in the conditions of service in other industrial establishments. It appears, however, that it was not necessary, in the circumstances of the case, to award the benefit of the sick leave with retrospective effect from January 1, 1975, in the case of Jyoti Ltd. Baroda.10. | 0[ds]It would thus appear that the appellants have not been able to show that the awards in question are illegal or unjust; or would adversely affect the economy or the industrial peace, or lead to imbalance in the conditions of service in other industrial establishments. It appears, however, that it was not necessary, in the circumstances of the case, to award the benefit of the sick leave with retrospective effect from January 1, 1975, in the case of Jyoti Ltd. Baroda. | 0 | 2,909 | 95 | ### 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:
when he is certified by a competent medical officer to be ill for that or a longer period. Sickness is a serious misfortune to a workman for it not only prevents him from earning his normal wages, but is a drain on his meagre financial resources by way of additional expenditure on food , nursing and visits to the medical centre etc. It has not been disputed before us that the "region-cure-industry" basis is suitable in cases like the present for examining any controversy regarding the workmans demand for additional benefits, but it has been argued by the learned counsel for the appellants that the award of the benefit of sick leave to the workers of the two Companies could not be justified on that basis. We find that the Tribunal has examined this aspect of the controversy also, and we have no reason to disagree with the view which it has taken. As has been stated, the Act came into force in the region concerned on December 14, 1969, and it has not been disputed before us that till then it was the practice in the glass industries to grant sick leave with wages for periods varying from 6 to 10 days. In fact in the case of the Alembic Glass Industries Ltd., Baroda, the Tribunal made an award for 7 days sick leave on full pay and dearness allowance in 1958, subject to the condition that the benefit would cease to apply when the benefits of the Act became available to the workmen. The benefit of sick leave was therefore lost when the Act was made applicable to the region from December 14, 1969. That was obviously under a mistaken impression of the sickness benefit which the Act allowed for, as has been shown, it does not deal with all aspects of the demand for sickness benefit and does not, at any rate, provide for the grant of leave on full emoluments during the period of the workmans physical incapacity to earn his normal wages because of his sickness. It therefore appears that the Tribunal could not be said to have erred in restoring the benefit which the workmen were receiving under the award of 1958, for it was taken away under the mistaken impression that it had been adequately replaced by the new provisions on the coming into force of the Act.The appellants have filed a statement (Ex. 7) containing information regarding the companies which have provided the benefit of sick leave to its workmen in the region. It shows that even though the Act was applicable to the workers of the Precision Bearings India Ltd., Baroda, Hindustan Brown Bovari Ltd., Baroda, the Associated Cement Companies Ltd., and M.S. University Press, Baroda, the benefit of sick leave has been allowed to the workmen of those companies . It is therefore .futile to contend that the benefit should not be admissible on the ground that it had not been allowed by other companies in the region. We also find that such a benefit has been allowed in the ca se of glass industries by Shree Vallabha Glass Works Ltd., Vallabh Vidyanagar, Ogale Glass Works Ltd., Oglewadi and Vijay Glass Works, Bombay. Even the Alembic Glass Industries Ltd. has allowed 6 days sick leave in a year to its employees in Bangalore and it is permissible to accumulate it upto 12 days in addition to the current years leave, under a settlement dated July 17, 1969, which is being continued even after the coming into force of the Act. Learned counsel for the appellants have invited our attention to the case between the Textile Labour Association and the Ahmedabad Millowners Association where the demand for sick leave was refused but, as the Tribunal has pointed out, the demand there was for a months leave every year in addition to 15 days casual leave and pay in lieu of privilege leave. The Full Bench of the Industrial Court in that case considered the paying capacity of the mills also, and held that the additional leave demanded by the workmen would be very much beyond the paying capacity of the industry. As against this, the Tribunal has examined the financial capacity of the two companies in question, and has given adequate reasons for holding that they are in good financial position and can bear the additional burden of sick leave. Learned counsel for the appellants have in fact not advanced any argument to the contrary.Mr. S.T. Desai has raised the argument, in the case of Jyoti Ltd., Baroda, that the Tribunal laboured under a misconception that the sickness benefit would be lost for the first two days of sickness under the first proviso to s. 49 of the Act, that the Tribunal should not, in any view of the matter, have given the benefit of 7 days sick leave, and that the workmen did not deserve anything more than sickness benefit for the first two days also. According to him, what has been awarded by the Tribunal is additional privilege leave for 7 days in the garb of sick leave. The argument is however futile because, as has been stated, the Tribunal has correctly examined the controversy and given adequate reasons for allowing the benefit of 7 days sick leave in the manner set out in the award. Such a leave could not be categorised as privilege leave as, by its very nature, it would be admissible only in the case of actual sickness certified by a registered medical practitioner.9. It would thus appear that the appellants have not been able to show that the awards in question are illegal or unjust; or would adversely affect the economy or the industrial peace, or lead to imbalance in the conditions of service in other industrial establishments. It appears, however, that it was not necessary, in the circumstances of the case, to award the benefit of the sick leave with retrospective effect from January 1, 1975, in the case of Jyoti Ltd. Baroda.10.
### Response:
0
### Explanation:
It would thus appear that the appellants have not been able to show that the awards in question are illegal or unjust; or would adversely affect the economy or the industrial peace, or lead to imbalance in the conditions of service in other industrial establishments. It appears, however, that it was not necessary, in the circumstances of the case, to award the benefit of the sick leave with retrospective effect from January 1, 1975, in the case of Jyoti Ltd. Baroda.
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Muniyamma and Ors Vs. Anitha Vaz | 1. Nobody appears for the Appellants when the case was taken. However, learned Counsel appearing for the Respondent stated that the sale deed has been executed and registered before the Trial Court pursuant to impugned judgment in Respondents favour in relation to suit property and, therefore, the appeal has been rendered as infructuous.2. Even otherwise, we find that this Court, vide order dated 21.08.2008 had issued Show Cause Notice to the Respondent confining it to examine the question as to why the order granting leave by the High Court be not revoked.3. We find that the learned Single Judge, in the present case, had granted certificate of leave Under Articles 133 read with Article 134-A of the Constitution of India to the Appellant to file this appeal. The said article, in our view, specifically prohibits learned Single Judge of the High Court to grant leave as has been held by this Court in State Bank of India and Anr. v. S.B.I. Employees Union and Anr. 1987 (4) SCC 370 and followed by this Court in Civil Appeal No. 5817 of 2012 entitled Agnigundala Venkata Ranga Rao v. Indukuru Ramchandra Reddy (Dead) by L.Rs. and Ors. (dated 13.04.2017). | 1[ds]3. We find that the learned Single Judge, in the present case, had granted certificate of leave Under Articles 133 read with Article 134-A of the Constitution of India to the Appellant to file this appeal. The said article, in our view, specifically prohibits learned Single Judge of the High Court to grant leave as has been held by this Court in State Bank of India and Anr. v. S.B.I. Employees Union and Anr. 1987 (4) SCC 370 and followed by this Court in Civil Appeal No. 5817 of 2012 entitled Agnigundala Venkata Ranga Rao v. Indukuru Ramchandra Reddy (Dead) by L.Rs. and Ors. (dated 13.04.2017). | 1 | 224 | 129 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
1. Nobody appears for the Appellants when the case was taken. However, learned Counsel appearing for the Respondent stated that the sale deed has been executed and registered before the Trial Court pursuant to impugned judgment in Respondents favour in relation to suit property and, therefore, the appeal has been rendered as infructuous.2. Even otherwise, we find that this Court, vide order dated 21.08.2008 had issued Show Cause Notice to the Respondent confining it to examine the question as to why the order granting leave by the High Court be not revoked.3. We find that the learned Single Judge, in the present case, had granted certificate of leave Under Articles 133 read with Article 134-A of the Constitution of India to the Appellant to file this appeal. The said article, in our view, specifically prohibits learned Single Judge of the High Court to grant leave as has been held by this Court in State Bank of India and Anr. v. S.B.I. Employees Union and Anr. 1987 (4) SCC 370 and followed by this Court in Civil Appeal No. 5817 of 2012 entitled Agnigundala Venkata Ranga Rao v. Indukuru Ramchandra Reddy (Dead) by L.Rs. and Ors. (dated 13.04.2017).
### Response:
1
### Explanation:
3. We find that the learned Single Judge, in the present case, had granted certificate of leave Under Articles 133 read with Article 134-A of the Constitution of India to the Appellant to file this appeal. The said article, in our view, specifically prohibits learned Single Judge of the High Court to grant leave as has been held by this Court in State Bank of India and Anr. v. S.B.I. Employees Union and Anr. 1987 (4) SCC 370 and followed by this Court in Civil Appeal No. 5817 of 2012 entitled Agnigundala Venkata Ranga Rao v. Indukuru Ramchandra Reddy (Dead) by L.Rs. and Ors. (dated 13.04.2017).
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Chief General Manager (IPC) M P Power Trading Co Ltd & Anr Vs. Narmada Equipments Pvt Ltd | upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word and in Section 86(1)(f) between the words generating companies and to refer any dispute for arbitration means or. It is well settled that sometimes and can mean or and sometimes or can mean and (vide G.P. Singhs Principles of Statutory Interpretation, 9th Edn., 2004, p. 404). 27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word and between the words generating companies and the words refer any dispute means or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word and in Section 86(1)(f) means or. 28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation. This position has subsequently also been approved by two three-Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited (2019) 17 SCC 82 ; hereinafter, referred to as Hindustan Zinc Limited and NHAI v Sayedabad Tea Company Limited (2020) 15 SCC 161. 11. From the above judgment, it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The and between generating companies and to refer any dispute for arbitration is to be read as an or, since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration. Section 86(1)(f) is extracted below: 86.Functions of State Commission.— (1) The State Commission shall discharge the following functions, namely:- *** *** *** (f) adjudicate upon the disputes between the licensees and generating companies and to refer any dispute for arbitration; 12. Section 174 of the 2003 Act provides overriding effect to the 2003 Act notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the 2003Act itself. Section 174 provides thus: 174. Act to have overriding effect. — Save as otherwise provided in Section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 13. We refer now to the second argument raised on behalf of the respondent, that the appellant cannot raise an objection relying on Section 86(1)(f) of the 2003 Act in the second application filed by it under Section 11(6) of the 1996 Act, when it had not raised the same objection in the first application under Section 11(6) of the 1996 Act or before the Arbitrators so appointed. It is pertinent to note that this argument was rejected by the Single Judge of the High Court in the impugned judgment and order dated 30 November 2016 in the following terms 9. I will be failing in my duty if the basic objection raised by Shri Manoj Dubey about maintainability of this application is not dealt with. Merely because in earlier round of litigation, the objection of maintainability was not taken, it will not preclude the other side to raise such objection if it goes to the root of the matter. This is trite law that jurisdiction cannot be assumed by consent of the parties. If a statute does not provide jurisdiction to entertain an application/petition, the petition cannot be entertained for any reason whatsoever. Thus, I am not inclined to hold that since for the reason that in the earlier round of litigation i.e. A.C. No.76/2011 parties reached to a consensus for appointment of Arbitrators, this application is also maintainable. I deem it proper to examine whether because of operation of Section 174 of the Act of 2003, the present application under the Act of 1996 is not maintainable. 14. A similar issue was raised before a three-Judge bench of this Court in Hindustan Zinc Limited (supra), where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently, the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court, and the Commercial Courts decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies, and not licensees and consumers. When the matter reached this Court, the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court, Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction, the plea can be taken at any stage and also in collateral proceedings. He highlighted the well-established principle that a decree passed by a court without subject matter jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case. | 1[ds]9. In the present case, the notice for the initiation of arbitration under Clause 12.3 of the PPA was issued by the respondent on 30 May 2011. The commencement of the arbitral proceedings by the invocation of the arbitration agreement would, therefore, relate to 30 May 2011, when the notice invoking Clause 12.3 was issued. Hence, the fact that the PPA and the notice of termination predate the 2003 Act would not constitute material circumstances. Section 21 of the 1996 Act specifies that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute would commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Hence, there can be no manner of doubt that 30 May 2011 would be the material date, since it is on this date that the notice invoking Clause 12.3 was issued by the respondent to the appellant.10. The first issue which is raised in this appeal is governed by Gujarat Urja Vikas Nigam Limited (supra). In that case, the power purchase agreement between the parties was entered into on 30 May 1996, and the notice for referring the dispute to arbitration was sent by one of the parties on 14 November 2005. The other party opposed the notice by stating that the State Electricity Commission had exclusive jurisdiction in accordance with Section 86(1)(f) of the 2003 Act. The Gujarat High Court thereafter appointed an Arbitrator in an application under Section 11(6) of the 1996 Act, which was impugned before this Court. Speaking for the two-Judge bench, Justice Markandey Katju settled the position of law in paragraphs 26, 27 and 28 of the judgment, which are extracted below for convenience of reference:26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word and in Section 86(1)(f) between the words generating companies and to refer any dispute for arbitration means or. It is well settled that sometimes and can mean or and sometimes or can mean and (vide G.P. Singhs Principles of Statutory Interpretation, 9th Edn., 2004, p. 404).27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word and between the words generating companies and the words refer any dispute means or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word and in Section 86(1)(f) means or.28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation.This position has subsequently also been approved by two three-Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited (2019) 17 SCC 82 ; hereinafter, referred to as Hindustan Zinc Limited and NHAI v Sayedabad Tea Company Limited (2020) 15 SCC 161. 11. From the above judgment, it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The and between generating companies and to refer any dispute for arbitration is to be read as an or, since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration.14. A similar issue was raised before a three-Judge bench of this Court in Hindustan Zinc Limited (supra), where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently, the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court, and the Commercial Courts decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies, and not licensees and consumers. When the matter reached this Court, the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court, Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction, the plea can be taken at any stage and also in collateral proceedings. He highlighted the well-established principle that a decree passed by a court without subject matter jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case. | 1 | 2,483 | 1,074 | ### 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:
upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word and in Section 86(1)(f) between the words generating companies and to refer any dispute for arbitration means or. It is well settled that sometimes and can mean or and sometimes or can mean and (vide G.P. Singhs Principles of Statutory Interpretation, 9th Edn., 2004, p. 404). 27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word and between the words generating companies and the words refer any dispute means or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word and in Section 86(1)(f) means or. 28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation. This position has subsequently also been approved by two three-Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited (2019) 17 SCC 82 ; hereinafter, referred to as Hindustan Zinc Limited and NHAI v Sayedabad Tea Company Limited (2020) 15 SCC 161. 11. From the above judgment, it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The and between generating companies and to refer any dispute for arbitration is to be read as an or, since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration. Section 86(1)(f) is extracted below: 86.Functions of State Commission.— (1) The State Commission shall discharge the following functions, namely:- *** *** *** (f) adjudicate upon the disputes between the licensees and generating companies and to refer any dispute for arbitration; 12. Section 174 of the 2003 Act provides overriding effect to the 2003 Act notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the 2003Act itself. Section 174 provides thus: 174. Act to have overriding effect. — Save as otherwise provided in Section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 13. We refer now to the second argument raised on behalf of the respondent, that the appellant cannot raise an objection relying on Section 86(1)(f) of the 2003 Act in the second application filed by it under Section 11(6) of the 1996 Act, when it had not raised the same objection in the first application under Section 11(6) of the 1996 Act or before the Arbitrators so appointed. It is pertinent to note that this argument was rejected by the Single Judge of the High Court in the impugned judgment and order dated 30 November 2016 in the following terms 9. I will be failing in my duty if the basic objection raised by Shri Manoj Dubey about maintainability of this application is not dealt with. Merely because in earlier round of litigation, the objection of maintainability was not taken, it will not preclude the other side to raise such objection if it goes to the root of the matter. This is trite law that jurisdiction cannot be assumed by consent of the parties. If a statute does not provide jurisdiction to entertain an application/petition, the petition cannot be entertained for any reason whatsoever. Thus, I am not inclined to hold that since for the reason that in the earlier round of litigation i.e. A.C. No.76/2011 parties reached to a consensus for appointment of Arbitrators, this application is also maintainable. I deem it proper to examine whether because of operation of Section 174 of the Act of 2003, the present application under the Act of 1996 is not maintainable. 14. A similar issue was raised before a three-Judge bench of this Court in Hindustan Zinc Limited (supra), where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently, the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court, and the Commercial Courts decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies, and not licensees and consumers. When the matter reached this Court, the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court, Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction, the plea can be taken at any stage and also in collateral proceedings. He highlighted the well-established principle that a decree passed by a court without subject matter jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case.
### Response:
1
### Explanation:
9. In the present case, the notice for the initiation of arbitration under Clause 12.3 of the PPA was issued by the respondent on 30 May 2011. The commencement of the arbitral proceedings by the invocation of the arbitration agreement would, therefore, relate to 30 May 2011, when the notice invoking Clause 12.3 was issued. Hence, the fact that the PPA and the notice of termination predate the 2003 Act would not constitute material circumstances. Section 21 of the 1996 Act specifies that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute would commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Hence, there can be no manner of doubt that 30 May 2011 would be the material date, since it is on this date that the notice invoking Clause 12.3 was issued by the respondent to the appellant.10. The first issue which is raised in this appeal is governed by Gujarat Urja Vikas Nigam Limited (supra). In that case, the power purchase agreement between the parties was entered into on 30 May 1996, and the notice for referring the dispute to arbitration was sent by one of the parties on 14 November 2005. The other party opposed the notice by stating that the State Electricity Commission had exclusive jurisdiction in accordance with Section 86(1)(f) of the 2003 Act. The Gujarat High Court thereafter appointed an Arbitrator in an application under Section 11(6) of the 1996 Act, which was impugned before this Court. Speaking for the two-Judge bench, Justice Markandey Katju settled the position of law in paragraphs 26, 27 and 28 of the judgment, which are extracted below for convenience of reference:26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word and in Section 86(1)(f) between the words generating companies and to refer any dispute for arbitration means or. It is well settled that sometimes and can mean or and sometimes or can mean and (vide G.P. Singhs Principles of Statutory Interpretation, 9th Edn., 2004, p. 404).27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word and between the words generating companies and the words refer any dispute means or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word and in Section 86(1)(f) means or.28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation.This position has subsequently also been approved by two three-Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited (2019) 17 SCC 82 ; hereinafter, referred to as Hindustan Zinc Limited and NHAI v Sayedabad Tea Company Limited (2020) 15 SCC 161. 11. From the above judgment, it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The and between generating companies and to refer any dispute for arbitration is to be read as an or, since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration.14. A similar issue was raised before a three-Judge bench of this Court in Hindustan Zinc Limited (supra), where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently, the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court, and the Commercial Courts decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies, and not licensees and consumers. When the matter reached this Court, the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court, Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction, the plea can be taken at any stage and also in collateral proceedings. He highlighted the well-established principle that a decree passed by a court without subject matter jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case.
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Mgmt.Commt.,Montfort Sr.Secondary School Vs. Vijay Kumar | of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances and imposing liability or affecting the rights of others." 18. In Huddart Parker and Co. v. Moorehead (1909)8 CLR 330 (E) judicial powers were defined as under:- "The words "judicial power" as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action." 19. In Rex Vs. London County Council (1931) 2 KB 215 (F) judicial authority was defined as under:- "It is not necessary that it should be a Court in the sense in which this Court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition and it is not necessary to be strictly a Court." 20. In Royal Aquarium and summer and Winter Garden Society Ltd. v. Parkinson (1892 (1) QB 431) dealing with the meaning of the word judicial it was observed as under: "The word judicial has two meanings. It may refer to the discharge of duties exercisable by a Judge or by Justices in Court or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind, that is, a mind to determine what is fair and just in respect of the matters under consideration." 21. Reference to expressions "judicial", and "judicial power" as detailed in Advanced Law Lexicon by P. Ramanath Aiyar, 3rd Edition, 2005 (at pages 2512 and 2518) would be appropriate: "Judicial: Belonging to a cause, trial or judgment; belonging to or emanating from a judge as such; the authority vested in a judge. (Bouvier L. Dict.); of, or belonging to a Court of justice; of or pertaining to a judge; pertaining to the administration of justice, proper to a Court of law. The word "judicial" is used in two senses. The first to designate such bodies or officers "as have the power of adjudication upon the rights of persons and property. In the other class of cases it is used to express an act of the mind or judgment upon a proposed course of official action as to an object of corporate power, for the consequences of which the official will not be liable, although his act was not well judged. (See Royal Aquarium v. Parkinson, (1892) 1 QB 431). Judicial Power: The power to decide cases and controversies (Craig R. Ducat - Constitutional Interpretation). In "Words and Phrases - Legally Defined" by John B. Saunders, Volume 3, at page 113, "Judicial Power" has been defined: "If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that decision, then but only by then, according to the definition quoted, all the attributes of judicial power are plainly present." "Judicial power" as defined by Chief Justice Griffith in Huddart Parker and Co. v. Moorehead (1909) 8 CLR 330 at 357 approved by the Privy Council in Shell Company of Australia v. Federal Commr. Of Taxation, (1931) AC 275 at p.283 means the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. The authority to determine the rights of persons or property by arbitrating between adversaries in specific controversies at the instance of a party thereto; the authority vested in some Court, officer, or person to hear and determine when the rights of persons or property or the propriety of doing an act is the subject-matter of adjudication. (Grider v. Tally 54, Am Rep 65). A judge exercises "judicial powers" not only when he is deciding suits between parties, but also when he exercises disciplinary powers which are properly appurtenant to the office of a judge. (A.G. of Gambia v. N Jie, 1961 AC 617." 22. At first flush, Sections 8(3) and 15 of the Act may appear to be self-contradictory. But it is really not so, when considered in the background of what is stated in Frank Anthony and St. Xaviers cases (supra). By giving benefit of Section 8(3) to employees of recognized unaided minority schools, they are put at par with their counterparts in private schools. The two provisions serve similar purpose i.e. providing a forum for ventilating grievances before a forum. Once a remedy under one is exhausted it is not permissible to avail the other one. 23. As noted by this Court in Bank of India v. Lekhimoni Das and Ors. (2000 (3) SCC 640 ), as a general principle where two remedies are available under law, one of them should not be taken as operating in derogation of the other. 24. In Canara Bank v. Nuclear Power Corporation of India Ltd. (1995 (3) JT SC 42) this Court held that the Company Law Board was a Court while exercising the functions of the Court. No serious challenge is raised by learned counsel for the appellant to the proposition that the Tribunal is a judicial authority within the meaning of the Arbitration Act. 25. While accepting the stand of the appellant in a given case the provisions of Section 8(3) of the Act could be rendered nugatory by requiring the Tribunal to refer the matter to an arbitrator. | 0[ds]13. According to learned counsel for the appellant though there may be two remedies available to the dismissed employee, that is, one the appeal and the other before the arbitrator, his stand was that when one of the parties i.e. the employer wants a particular forum for adjudication there cannot be a compulsion for him to go before the forum chosen by the other party.This argument in our view is clearly without substance. Even if there are plural or multiple remedies available, the principle of dominus litis has clear application15. A question has been raised as to whether the Tribunal is a judicial authority and/or whether it exercises judicial power in the background of sub-Section (1) of Section 8 of the Arbitration Act. The expression Judicial Authority has not been defined under the said Act. The Tribunal is presided by a judicial officer of equal rank of the District Judge. The expenditure incurred on the Tribunal is defrayed from the Consolidated Funds of India. It is vested with the power to regulate its own proceedings and is vested with same powers as are vested in a Court of Law under the Code of Civil Procedure, 1908 (in short the CPC). One important factor is that the Tribunal has a power to stay the operation of the order appealed against23. As noted by this Court in Bank of India v. Lekhimoni Das and Ors. (2000 (3) SCC 640 ), as a general principle where two remedies are available under law, one of them should not be taken as operating in derogation of the other24. In Canara Bank v. Nuclear Power Corporation of India Ltd. (1995 (3) JT SC 42) this Court held that the Company Law Board was a Court while exercising the functions of the Court. No serious challenge is raised by learned counsel for the appellant to the proposition that the Tribunal is a judicial authority within the meaning of the Arbitration Act25. While accepting the stand of the appellant in a given case the provisions of Section 8(3) of the Act could be rendered nugatory by requiring the Tribunal to refer the matter to an arbitrator | 0 | 5,178 | 398 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances and imposing liability or affecting the rights of others." 18. In Huddart Parker and Co. v. Moorehead (1909)8 CLR 330 (E) judicial powers were defined as under:- "The words "judicial power" as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action." 19. In Rex Vs. London County Council (1931) 2 KB 215 (F) judicial authority was defined as under:- "It is not necessary that it should be a Court in the sense in which this Court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition and it is not necessary to be strictly a Court." 20. In Royal Aquarium and summer and Winter Garden Society Ltd. v. Parkinson (1892 (1) QB 431) dealing with the meaning of the word judicial it was observed as under: "The word judicial has two meanings. It may refer to the discharge of duties exercisable by a Judge or by Justices in Court or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind, that is, a mind to determine what is fair and just in respect of the matters under consideration." 21. Reference to expressions "judicial", and "judicial power" as detailed in Advanced Law Lexicon by P. Ramanath Aiyar, 3rd Edition, 2005 (at pages 2512 and 2518) would be appropriate: "Judicial: Belonging to a cause, trial or judgment; belonging to or emanating from a judge as such; the authority vested in a judge. (Bouvier L. Dict.); of, or belonging to a Court of justice; of or pertaining to a judge; pertaining to the administration of justice, proper to a Court of law. The word "judicial" is used in two senses. The first to designate such bodies or officers "as have the power of adjudication upon the rights of persons and property. In the other class of cases it is used to express an act of the mind or judgment upon a proposed course of official action as to an object of corporate power, for the consequences of which the official will not be liable, although his act was not well judged. (See Royal Aquarium v. Parkinson, (1892) 1 QB 431). Judicial Power: The power to decide cases and controversies (Craig R. Ducat - Constitutional Interpretation). In "Words and Phrases - Legally Defined" by John B. Saunders, Volume 3, at page 113, "Judicial Power" has been defined: "If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that decision, then but only by then, according to the definition quoted, all the attributes of judicial power are plainly present." "Judicial power" as defined by Chief Justice Griffith in Huddart Parker and Co. v. Moorehead (1909) 8 CLR 330 at 357 approved by the Privy Council in Shell Company of Australia v. Federal Commr. Of Taxation, (1931) AC 275 at p.283 means the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. The authority to determine the rights of persons or property by arbitrating between adversaries in specific controversies at the instance of a party thereto; the authority vested in some Court, officer, or person to hear and determine when the rights of persons or property or the propriety of doing an act is the subject-matter of adjudication. (Grider v. Tally 54, Am Rep 65). A judge exercises "judicial powers" not only when he is deciding suits between parties, but also when he exercises disciplinary powers which are properly appurtenant to the office of a judge. (A.G. of Gambia v. N Jie, 1961 AC 617." 22. At first flush, Sections 8(3) and 15 of the Act may appear to be self-contradictory. But it is really not so, when considered in the background of what is stated in Frank Anthony and St. Xaviers cases (supra). By giving benefit of Section 8(3) to employees of recognized unaided minority schools, they are put at par with their counterparts in private schools. The two provisions serve similar purpose i.e. providing a forum for ventilating grievances before a forum. Once a remedy under one is exhausted it is not permissible to avail the other one. 23. As noted by this Court in Bank of India v. Lekhimoni Das and Ors. (2000 (3) SCC 640 ), as a general principle where two remedies are available under law, one of them should not be taken as operating in derogation of the other. 24. In Canara Bank v. Nuclear Power Corporation of India Ltd. (1995 (3) JT SC 42) this Court held that the Company Law Board was a Court while exercising the functions of the Court. No serious challenge is raised by learned counsel for the appellant to the proposition that the Tribunal is a judicial authority within the meaning of the Arbitration Act. 25. While accepting the stand of the appellant in a given case the provisions of Section 8(3) of the Act could be rendered nugatory by requiring the Tribunal to refer the matter to an arbitrator.
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13. According to learned counsel for the appellant though there may be two remedies available to the dismissed employee, that is, one the appeal and the other before the arbitrator, his stand was that when one of the parties i.e. the employer wants a particular forum for adjudication there cannot be a compulsion for him to go before the forum chosen by the other party.This argument in our view is clearly without substance. Even if there are plural or multiple remedies available, the principle of dominus litis has clear application15. A question has been raised as to whether the Tribunal is a judicial authority and/or whether it exercises judicial power in the background of sub-Section (1) of Section 8 of the Arbitration Act. The expression Judicial Authority has not been defined under the said Act. The Tribunal is presided by a judicial officer of equal rank of the District Judge. The expenditure incurred on the Tribunal is defrayed from the Consolidated Funds of India. It is vested with the power to regulate its own proceedings and is vested with same powers as are vested in a Court of Law under the Code of Civil Procedure, 1908 (in short the CPC). One important factor is that the Tribunal has a power to stay the operation of the order appealed against23. As noted by this Court in Bank of India v. Lekhimoni Das and Ors. (2000 (3) SCC 640 ), as a general principle where two remedies are available under law, one of them should not be taken as operating in derogation of the other24. In Canara Bank v. Nuclear Power Corporation of India Ltd. (1995 (3) JT SC 42) this Court held that the Company Law Board was a Court while exercising the functions of the Court. No serious challenge is raised by learned counsel for the appellant to the proposition that the Tribunal is a judicial authority within the meaning of the Arbitration Act25. While accepting the stand of the appellant in a given case the provisions of Section 8(3) of the Act could be rendered nugatory by requiring the Tribunal to refer the matter to an arbitrator
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Orissa State Electricity Board Vs. M/S Ipisteel Ltd | x Rs.35/-. This is because the demand charges are meant to cover investment, installation and the standing charges to some extent, as held by this Court in Northern India Iron and Steel, (AIR 1976 SC 1100 ) which is precisely what we have explained hereinbefore. To say that demand charges should not be collected if the consumer does not avail of the electricity on the remaining, twenty nine days in a month in the above illustration would be to deny and disallow the very concept of and rationale behind the maximum demand charges. Of course, situation would be different, if in the above illustration, the Board does not or is unable to provide even the restricted supply in the manner explained herein before. In such a situation, the consumer would certainly be entitled to the relief in an equitable manner, just as he would have been entitled to relief in normal times. In other words, what would happen if during normal times such a thing happens ? Same would be the situation during the period of cut. There is in effect no distinction between both situations except that during periods of restricted supply, the availability of energy is reduced vis-a-vis the contracted supply. Now it is not the case of the respondent that in any month electricity energy was available for the first day of the month or on any particular day or days and not for the whole month. So far as the period January to March 1989 is concerned, the situation in that month was a special one. It is explained by the Board that on January 5, 1989 there was a system disturbance on account of failure of a 220/132 KV auto-transformer at TTPS Talcher on account of which the industries like the respondent were not allowed to draw energy even in accordance with the cut and restriction impose by the Government of Orissa and the Orissa Electricity Board. It is explained that on account of this unusual situation and on the basis of the representation of the respondent, it has been given a special rebate in Board Memorandum No.Com.1-70/83. Under this memorandum, it has been decided that some relief be provided to the consumer by exempting the demand charge for the period when power was restricted to this industry for a continuous period of seventy two or more as special case (for the months of January 89 to March 89 only). If this is approved, the monthly maximum demand charges of this unit for the three months from January, 89 to March, 89 shall be prorated for the period of supply excluding the period when power supply was not given to the consumer continuously for seventy two hours or more. This concession, if allowed, shall be a special case not to be cited as a precedent for future." It is stated by Sri Hegde, learned counsel for the Board that a special concession has been approved and given to the respondent for the said months.32. The other reason given by the High Court in support of its decision is contained in the second of the two extracts from its judgment set out by us hereinbefore. It takes the January, 1989 situation as a representative situation and seeks to demonstrate on that basis the arbitrariness and irrationality of the proviso to Regulation 46. But as stated hereinbefore that was an unusual situation for which appropriate relief has been given to the respondent. The validity of regulations, which have the force of law, should not be judged by taking either a stray case or an unusual case but on the generality of the situation. All that happens during the period of restriction is that electricity is generated at a lower level than usual; if the fall in production is expected to be fifty per cent, a corresponding restriction is imposed on consumption. So far as breakdowns and trippings etc. re concerned, they are not confined to periods of restrictions alone; they may occur during normal times as well. If there is no supply at all for considerable periods, the situation would be different, whether it happens during the period of normal supply or during the period of restricted supply, but we are not concerned with or called upon to pronounce upon such a situation. For the unusual situation obtaining during January-March, 1989 aforesaid, appropriate relief has already been given to the respondent.33. We must, therefore, say that no arbitrariness or unreasonableness is involved in Regulation 46 or its proviso. It only provides for collecting demand charges for the actual maximum demand availed by such consumers during the period of restricted supply. The consumer cannot legitimately complain of this course nor can it characterise it as confiscatory. We must also say that none of the decisions relied upon by the learned counsel for the respondent lays down any principle which can be said to suggest that such a rule is arbitrary and unreasonable. Once we understand the system of two-part levy and the rationale behind it, as also the compulsions arising from an order under Section 22-B of the Electricity Act,1910, there would be no room or ground for impugning the validity of Regulation 46 of its proviso. Difficulties are no doubt there - difficulties of the consumer and difficulties of the Board. They are essentially the problems of shortages, perhaps epidemic to a developing economy. As rightly emphasised by Sri Hedge, the respondent would have faced the same problems if he had installed his own plant for generating electricity to meet his needs. While the respondent says that it has suffered on account of these cuts, the Board says that by reducing the demand charges during such periods, it is also suffering. The consumer accuses Board of several failings and the Board has its own explanations. It is not possible to go into them. It is enough to say that in the circumstances, Regulation 46 or its proviso cannot be termed as arbitrary or unreasonable, much less confiscatory. | 1[ds]It is obvious that if a factory uses energy at a particular level/load and for a particular period, it consumes a particular quantity of energy. The trivector meter records the highest level/load at which the energy is drawn over any thirty minute period in a month while the other meter records the total consumption of energy in units in the month. Let us take the case of the respondent to illustrate the point. The maximum demand in his case is upto but not exceeding 7778 KVA. That is his requirement. In the normal times, he is entitled to draw energy at that level/load. That is his maximum demand under the agreement. But he may not always do so. Say, in the given month, he draws energy at 6000 KVA level only, even then he has to pay the minimum charges as stipulated in the agreement. But if he draws and consumes energy exceeding eight per cent of the energy, he pays demand and energy charges for what he utilises. Now, let us notice how the trivector meter, i.e., the meter which records the maximum demand works; the meter is so designed that it only records the maximum load/level at which energy is drawn over anyperiod in a month. It only goes forward but never goes back until it is put back manually. To be more precise, suppose the respondent has drawn energy at 7770 KVA for aperiod on the first day of the month, the meter will record that figure and will stay there even if the respondent consumes at 7000 or lesser KVA level during the rest of the month. From this circumstance, however, one cannot jump to the conclusion that it is an arbitrary way of levying consumption charges. Normally speaking, a factory utilises energy at a broadly constantin the case of thermal station, problems of supply of coal and oil, quality of coal supplied and other problems result in the Board producing electricity at a level far lower than what it normally does. During periods of such reduced generation/supply, problems of distribution arise. There are several categories of consumers; industrial (including bulk consumers), commercial, agricultural and domestic besides some other categories. Naturally, everybody cannot be supplied the full quantity of energy required; it has to be rationedand may be, supply staggered.It is obvious that an order made under Section 22.B is binding upon the Electricity Board and overrides the contracts and agreements which the Board may have entered into with the consumers. When an order under Section 22.B is issued, the Board is freed from the obligation to supply energy at the level stipulated in the agreements with the consumers and its obligation is to supply in accordance with the order under SectionOn this score, there is no controversy. The controversy is with respect to the power of the Board to collect maximum demand charges at the rate prescribed in the agreement during such periods of restricted supply. In short, the question is with respect to the power of the Board to frame Regulation 46 and more particularly, the reasonableness of the proviso to the said Regulation.Regulation 46, it is evident,is designed to meet the situation obtaining during the period an order under Sectionof the Electricity Act, 1910 is in force. It says so specifically. The Regulation says that when such an order is in operation, the Board shall be under no obligation to supply the contracted demand/maximum demand and that it will supply energy only in accordance with the restrictions placed by such order. To this extent it states the obvious. The provisowhich is the one in questionthen says that during the period of such restricted supply if the restriction on supply exceeds 150 hours in a month, (a) the consumer shall not be liable to pay minimum charges in accordance with the agreement but (b) he shall pay in case oftariff, on the basis of actual energy consumption and the maximum demand as provided in the agreement and (c) in all other cases, (i.e., in case of consumers to whomtariff does not apply) on the basis of actual consumption of energy.Apart from criticizing the above reasoning, Sri Hegde, learned counsel for the Board complains that the decision of the High Court is coloured by the extreme example taken by it relating to the month of January, 1989 (Bill No. 705 dated February 3, 1989). The learned counsel explains that during the month of January, i.e. on January 5, 1989, there was "system disturbance following failure of a 220/132 KVat TTPS, Talcher for which loads had to be restricted to all thereceiving power 132 KV., from TTPS due to which M/s IPISTEEL were not allowed to draw their furnace load during the several periods in the month of January, February and March,1989 which extended to more than 3 days at a stretch each time" and on which account a special remission has been granted to the respondent under Board Memorandum No.Com.I.70/83, a copy of which has been placed before us.Now coming back to the facts of the case before us, it must be stated at the outset that the validity or justifiability of the order made by the Government of Orissa under Sectionis not questioned nor is it in issue. We must,therefore, proceed on the assumption that the cut was imposed because it was necessary to ensure equitable supply of energy to various consumers in the State. It is equally beyond dispute that an order made under Section 22.B is binding upon the Electricity Board as well as the consumers and supersedes and overrides the agreements that may have been entered into between the Board and the consumers. According to the said order, the cut was fifty per cent and the cut was operative for one full year, called water year. The respondent was, therefore, bound to utilise only fifty per cent of what is permitted under the Agreement. In other words, it must consume only half the energy which it was entitled to consume under the agreement in a month or in a year, as the case may be. Evidently, if the respondent drew energy at the maximum demand level, i.e., at the maximum contracted level, and did so for the whole of the year, it would be utilising the full quota of energy permissible to him under the agreement, which he cannot do in view of the fifty per cent cut imposed by the order under SectionThe order under Sectionread with the option given by the Board, means, according to the Board, that either the consumer draws energy at half the maximum demand level and operates for full year or draws energy at full maximum demand level and operates only for half the relevant year of restriction, as explained hereinbefore. The choice is left to the consumer to arrange his affairs in such manner as he thinks fit provided he does not go beyond the quota (restricted quota) prescribed for him. Now, Regulation 46 says that during the period an order under Sectionis in operation and the hours of restriction exceed 150 hours in a month, the consumer is relieved of the obligation to pay the minimum charges, i. e., the obligation to pay eighty per cent of the charges even if he avails of and consumers less power. The consumer governed by thetariff is, however, obliged under the said regulation to pay "on the basis of actual energy consumption and the "maximum demand" as provided in the agreement". Now, what does this mean in practice ? If the consume avails of energy at half the maximum demand/contract demand, he will pay demand charges only for that. In other words, if the respondent had drawn energy at 3889 KVA, he would pay demand charges only for 3889 KVA plus the charges for the actual number of units consumed by him. Similarly, had the respondent availed of the energy at, say 3000 KVA he would have been liable to pay demand charges only on that basis plus the energy charges, and if he had availed of energy at maximum demand then he would have been liable to pay demand charges for the maximum demand availed by him plus the energy chargesthe over all restriction being that he should have remained within the fifty per cent quota prescribed. Thus, in no event, a consumer is made to pay maximum demand charges for more than what he actually availed. As stated above, thelimitation is that he must have remained within the fifty per cent quota allotted to him during the year of restriction. We are unable to see any arbitrariness or unreasonableness in the said proviso. It means and says that during such periods of restricted supply, the consumer pays the energy charges for the actual consumption plus maximum demand charges for the maximum demand availed of by him at the rate prescribed in the agreement.31. The High Court faulted the proviso to Regulation 46 on the ground of arbitrariness and unreasonableness. The reasoning of the High Court is this : if in a given case, an industry avails of energy at 7000 KVA on the first day of the month but does not take any energy for the remaining twenty nine days of the month, it would still be liable to pay the demand charges for the month at the rate prescribed in the agreement, viz, 7000 KVA xwhich is not only arbitrary and unreasonable but also confiscatory in nature. With great respect, we are unable to subscribe to this view. This would precisely be the result even in the normal times. Even when there is no power cut in force, if an industry draws energy at 7000 KVA on the first day of the month and does not draw the energy at all on the subsequent twenty nine days, it would still be required to pay the demand charges at 7000 KVA x Rs.This is because the demand charges are meant to cover investment, installation and the standing charges to some extent, as held by this Court in Northern India Iron and Steel, (AIR 1976 SC 1100 ) which is precisely what we have explained hereinbefore. To say that demand charges should not be collected if the consumer does not avail of the electricity on the remaining, twenty nine days in a month in the above illustration would be to deny and disallow the very concept of and rationale behind the maximum demand charges. Of course, situation would be different, if in the above illustration, the Board does not or is unable to provide even the restricted supply in the manner explained herein before. In such a situation, the consumer would certainly be entitled to the relief in an equitable manner, just as he would have been entitled to relief in normal times. In other words, what would happen if during normal times such a thing happens ? Same would be the situation during the period of cut. There is in effect no distinction between both situations except that during periods of restricted supply, the availability of energy is reducedthe contracted supply. Now it is not the case of the respondent that in any month electricity energy was available for the first day of the month or on any particular day or days and not for the whole month. So far as the period January to March 1989 is concerned, the situation in that month was a special one. It is explained by the Board that on January 5, 1989 there was a system disturbance on account of failure of a 220/132 KVat TTPS Talcher on account of which the industries like the respondent were not allowed to draw energy even in accordance with the cut and restriction impose by the Government of Orissa and the Orissa Electricity Board. It is explained that on account of this unusual situation and on the basis of the representation of the respondent, it has been given a special rebate in Board Memorandum No.Com.Under this memorandum, it has been decided that some relief be provided to the consumer by exempting the demand charge for the period when power was restricted to this industry for a continuous period of seventy two or more as special case (for the months of January 89 to March 89 only). If this is approved, the monthly maximum demand charges of this unit for the three months from January, 89 to March, 89 shall be prorated for the period of supply excluding the period when power supply was not given to the consumer continuously for seventy two hours or more. This concession, if allowed, shall be a special case not to be cited as a precedent for future." It is stated by Sri Hegde, learned counsel for the Board that a special concession has been approved and given to the respondent for the said months.32. The other reason given by the High Court in support of its decision is contained in the second of the two extracts from its judgment set out by us hereinbefore. It takes the January, 1989 situation as a representative situation and seeks to demonstrate on that basis the arbitrariness and irrationality of the proviso to Regulation 46. But as stated hereinbefore that was an unusual situation for which appropriate relief has been given to the respondent. The validity of regulations, which have the force of law, should not be judged by taking either a stray case or an unusual case but on the generality of the situation. All that happens during the period of restriction is that electricity is generated at a lower level than usual; if the fall in production is expected to be fifty per cent, a corresponding restriction is imposed on consumption. So far as breakdowns and trippings etc. re concerned, they are not confined to periods of restrictions alone; they may occur during normal times as well. If there is no supply at all for considerable periods, the situation would be different, whether it happens during the period of normal supply or during the period of restricted supply, but we are not concerned with or called upon to pronounce upon such a situation. For the unusual situation obtaining during1989 aforesaid, appropriate relief has already been given to the respondent.33. We must, therefore, say that no arbitrariness or unreasonableness is involved in Regulation 46 or its proviso. It only provides for collecting demand charges for the actual maximum demand availed by such consumers during the period of restricted supply. The consumer cannot legitimately complain of this course nor can it characterise it as confiscatory. We must also say that none of the decisions relied upon by the learned counsel for the respondent lays down any principle which can be said to suggest that such a rule is arbitrary and unreasonable. Once we understand the system oflevy and the rationale behind it, as also the compulsions arising from an order under Sectionof the Electricity Act,1910, there would be no room or ground for impugning the validity of Regulation 46 of its proviso. Difficulties are no doubt theredifficulties of the consumer and difficulties of the Board. They are essentially the problems of shortages, perhaps epidemic to a developing economy. As rightly emphasised by Sri Hedge, the respondent would have faced the same problems if he had installed his own plant for generating electricity to meet his needs. While the respondent says that it has suffered on account of these cuts, the Board says that by reducing the demand charges during such periods, it is also suffering. The consumer accuses Board of several failings and the Board has its own explanations. It is not possible to go into them. It is enough to say that in the circumstances, Regulation 46 or its proviso cannot be termed as arbitrary or unreasonable, much less confiscatory. | 1 | 10,533 | 2,882 | ### Instruction:
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x Rs.35/-. This is because the demand charges are meant to cover investment, installation and the standing charges to some extent, as held by this Court in Northern India Iron and Steel, (AIR 1976 SC 1100 ) which is precisely what we have explained hereinbefore. To say that demand charges should not be collected if the consumer does not avail of the electricity on the remaining, twenty nine days in a month in the above illustration would be to deny and disallow the very concept of and rationale behind the maximum demand charges. Of course, situation would be different, if in the above illustration, the Board does not or is unable to provide even the restricted supply in the manner explained herein before. In such a situation, the consumer would certainly be entitled to the relief in an equitable manner, just as he would have been entitled to relief in normal times. In other words, what would happen if during normal times such a thing happens ? Same would be the situation during the period of cut. There is in effect no distinction between both situations except that during periods of restricted supply, the availability of energy is reduced vis-a-vis the contracted supply. Now it is not the case of the respondent that in any month electricity energy was available for the first day of the month or on any particular day or days and not for the whole month. So far as the period January to March 1989 is concerned, the situation in that month was a special one. It is explained by the Board that on January 5, 1989 there was a system disturbance on account of failure of a 220/132 KV auto-transformer at TTPS Talcher on account of which the industries like the respondent were not allowed to draw energy even in accordance with the cut and restriction impose by the Government of Orissa and the Orissa Electricity Board. It is explained that on account of this unusual situation and on the basis of the representation of the respondent, it has been given a special rebate in Board Memorandum No.Com.1-70/83. Under this memorandum, it has been decided that some relief be provided to the consumer by exempting the demand charge for the period when power was restricted to this industry for a continuous period of seventy two or more as special case (for the months of January 89 to March 89 only). If this is approved, the monthly maximum demand charges of this unit for the three months from January, 89 to March, 89 shall be prorated for the period of supply excluding the period when power supply was not given to the consumer continuously for seventy two hours or more. This concession, if allowed, shall be a special case not to be cited as a precedent for future." It is stated by Sri Hegde, learned counsel for the Board that a special concession has been approved and given to the respondent for the said months.32. The other reason given by the High Court in support of its decision is contained in the second of the two extracts from its judgment set out by us hereinbefore. It takes the January, 1989 situation as a representative situation and seeks to demonstrate on that basis the arbitrariness and irrationality of the proviso to Regulation 46. But as stated hereinbefore that was an unusual situation for which appropriate relief has been given to the respondent. The validity of regulations, which have the force of law, should not be judged by taking either a stray case or an unusual case but on the generality of the situation. All that happens during the period of restriction is that electricity is generated at a lower level than usual; if the fall in production is expected to be fifty per cent, a corresponding restriction is imposed on consumption. So far as breakdowns and trippings etc. re concerned, they are not confined to periods of restrictions alone; they may occur during normal times as well. If there is no supply at all for considerable periods, the situation would be different, whether it happens during the period of normal supply or during the period of restricted supply, but we are not concerned with or called upon to pronounce upon such a situation. For the unusual situation obtaining during January-March, 1989 aforesaid, appropriate relief has already been given to the respondent.33. We must, therefore, say that no arbitrariness or unreasonableness is involved in Regulation 46 or its proviso. It only provides for collecting demand charges for the actual maximum demand availed by such consumers during the period of restricted supply. The consumer cannot legitimately complain of this course nor can it characterise it as confiscatory. We must also say that none of the decisions relied upon by the learned counsel for the respondent lays down any principle which can be said to suggest that such a rule is arbitrary and unreasonable. Once we understand the system of two-part levy and the rationale behind it, as also the compulsions arising from an order under Section 22-B of the Electricity Act,1910, there would be no room or ground for impugning the validity of Regulation 46 of its proviso. Difficulties are no doubt there - difficulties of the consumer and difficulties of the Board. They are essentially the problems of shortages, perhaps epidemic to a developing economy. As rightly emphasised by Sri Hedge, the respondent would have faced the same problems if he had installed his own plant for generating electricity to meet his needs. While the respondent says that it has suffered on account of these cuts, the Board says that by reducing the demand charges during such periods, it is also suffering. The consumer accuses Board of several failings and the Board has its own explanations. It is not possible to go into them. It is enough to say that in the circumstances, Regulation 46 or its proviso cannot be termed as arbitrary or unreasonable, much less confiscatory.
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days, it would still be required to pay the demand charges at 7000 KVA x Rs.This is because the demand charges are meant to cover investment, installation and the standing charges to some extent, as held by this Court in Northern India Iron and Steel, (AIR 1976 SC 1100 ) which is precisely what we have explained hereinbefore. To say that demand charges should not be collected if the consumer does not avail of the electricity on the remaining, twenty nine days in a month in the above illustration would be to deny and disallow the very concept of and rationale behind the maximum demand charges. Of course, situation would be different, if in the above illustration, the Board does not or is unable to provide even the restricted supply in the manner explained herein before. In such a situation, the consumer would certainly be entitled to the relief in an equitable manner, just as he would have been entitled to relief in normal times. In other words, what would happen if during normal times such a thing happens ? Same would be the situation during the period of cut. There is in effect no distinction between both situations except that during periods of restricted supply, the availability of energy is reducedthe contracted supply. Now it is not the case of the respondent that in any month electricity energy was available for the first day of the month or on any particular day or days and not for the whole month. So far as the period January to March 1989 is concerned, the situation in that month was a special one. It is explained by the Board that on January 5, 1989 there was a system disturbance on account of failure of a 220/132 KVat TTPS Talcher on account of which the industries like the respondent were not allowed to draw energy even in accordance with the cut and restriction impose by the Government of Orissa and the Orissa Electricity Board. It is explained that on account of this unusual situation and on the basis of the representation of the respondent, it has been given a special rebate in Board Memorandum No.Com.Under this memorandum, it has been decided that some relief be provided to the consumer by exempting the demand charge for the period when power was restricted to this industry for a continuous period of seventy two or more as special case (for the months of January 89 to March 89 only). If this is approved, the monthly maximum demand charges of this unit for the three months from January, 89 to March, 89 shall be prorated for the period of supply excluding the period when power supply was not given to the consumer continuously for seventy two hours or more. This concession, if allowed, shall be a special case not to be cited as a precedent for future." It is stated by Sri Hegde, learned counsel for the Board that a special concession has been approved and given to the respondent for the said months.32. The other reason given by the High Court in support of its decision is contained in the second of the two extracts from its judgment set out by us hereinbefore. It takes the January, 1989 situation as a representative situation and seeks to demonstrate on that basis the arbitrariness and irrationality of the proviso to Regulation 46. But as stated hereinbefore that was an unusual situation for which appropriate relief has been given to the respondent. The validity of regulations, which have the force of law, should not be judged by taking either a stray case or an unusual case but on the generality of the situation. All that happens during the period of restriction is that electricity is generated at a lower level than usual; if the fall in production is expected to be fifty per cent, a corresponding restriction is imposed on consumption. So far as breakdowns and trippings etc. re concerned, they are not confined to periods of restrictions alone; they may occur during normal times as well. If there is no supply at all for considerable periods, the situation would be different, whether it happens during the period of normal supply or during the period of restricted supply, but we are not concerned with or called upon to pronounce upon such a situation. For the unusual situation obtaining during1989 aforesaid, appropriate relief has already been given to the respondent.33. We must, therefore, say that no arbitrariness or unreasonableness is involved in Regulation 46 or its proviso. It only provides for collecting demand charges for the actual maximum demand availed by such consumers during the period of restricted supply. The consumer cannot legitimately complain of this course nor can it characterise it as confiscatory. We must also say that none of the decisions relied upon by the learned counsel for the respondent lays down any principle which can be said to suggest that such a rule is arbitrary and unreasonable. Once we understand the system oflevy and the rationale behind it, as also the compulsions arising from an order under Sectionof the Electricity Act,1910, there would be no room or ground for impugning the validity of Regulation 46 of its proviso. Difficulties are no doubt theredifficulties of the consumer and difficulties of the Board. They are essentially the problems of shortages, perhaps epidemic to a developing economy. As rightly emphasised by Sri Hedge, the respondent would have faced the same problems if he had installed his own plant for generating electricity to meet his needs. While the respondent says that it has suffered on account of these cuts, the Board says that by reducing the demand charges during such periods, it is also suffering. The consumer accuses Board of several failings and the Board has its own explanations. It is not possible to go into them. It is enough to say that in the circumstances, Regulation 46 or its proviso cannot be termed as arbitrary or unreasonable, much less confiscatory.
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Union of India Vs. Prafulla Kumar Sanyal | (with such designation only as he may specify for Manipur Territory) or if he is unwilling to act to the sole arbitrator some other person appointed by the arbitrator. An arbitrator can be appointed only under the terms of the agreement. The High Court rejected this contention on the ground that the arbitration agreement does not mention any appointed arbitrator. The arbitration agreement states that an abritrator has to be appointed by the President of India or if he is unwilling to act to the sole arbitration, some other person has to be appointed by the Administration. The High Court in appeal held that it was manifest that there was no arbitrator appointed in the agreement3. Under Section 20(4) of the Arbitration Act when an agreement is filed, the court is required to make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. The sub-section requires that the court shall make an order of reference to the arbitrator appointed by the parties whether in the agreement or otherwise. If no such arbitrator had been appointed and when the parties cannot agree upon an arbitrator, the court may proceed to appoint an arbitrator by itself. Thus if an arbitrator had been appointed whether in the agreement or otherwise, the court shall make an order of reference to him. In this case, clause 29 of the agreement provides that every dispute shall be referred to the sole arbitration of the person appointed by the President of India or if he is unwilling to act to the person appointed by the arbitrator. An arbitrator, in fact, has not been appointed by the President though the provision has been made for such appointment. Construing strictly the words of sub-section (4), the court is not bound to make an order of reference to the person that is to be appointed by the President of India or in the event of his not willing to a person to be appointed by the Administration, for the arbitrator has not been appointed as contemplated in the sub-section. Therefore, it will not be obligatory on the part of the court to make an order of reference to the arbitrator that may be appointed by the President. If an arbitrator had not been appointed as required in the sub-section, the court is to find whether the parties could agree upon an arbitrator. If the parties agree, the court has to appoint the person agreed to as an arbitrator. If there is no such agreement, the court will have to appoint an arbitrator of its choice4. It was contended on behalf of the appellant that when the arbitration agreement contains adequate and exhaustive machinery for appointment of arbitrators including substitutional appointments in case the appointed arbitrator refuses to act, it must be construed as the arbitrator having been appointed under sub-section (4) to Section 20. In support of this contention a decision of Calcutta High Court in Union of India v. HIMCO (India) Pvt. Ltd. (AIR 1965 Cal 404 ) was relied on, wherein Bachawat, J. observed that the arbitration agreement contained adequate and exhaustive machinery for appointment of arbitrators including substitutional appointments in case the appointed arbitrator refuses to act. The learned Judge observed the fact that the appointed arbitrator has not yet signified his willingness to act as arbitrator does not debar the court from making an order of reference of the dispute to him. If subsequently refuses to act as the arbitrator the procedure laid down in the arbitration agreement will prevail and will have to be followed. In support of this view the learned Judge relied on the decision of this Court in M/s. Dhanrajamal Govindram v. M/s. Shamji Kalidas and Co. (AIR 1961 SC 1285 ). This Court referring to the powers of the Court under Section 20(4) to appoint an arbitrator observed that it was perfectly possible (in the case) if the parties appointed the arbitrator or arbitrators. If the parties do not agree, the court may be required to make a decision as to who should be selected as an arbitrator. The Court further observed that in the case before it the parties by their agreement have placed the power of selecting an arbitrator or arbitrators in the hands of Chairman of the Board of Directors, and the court can certainly perform the ministerial act of sending the agreement to him to be dealt with by him. The decisions do not consider the question whether under Section 20(4) the court is bound to appoint an arbitrator who has actually not been appointed but for whose appointment adequate and exhaustive machinery had been provided. Taking into account the wording of the sub-section that the court shall make an order of reference to the arbitrator appointed by the parties we do not feel that the sub-section requires the court to appoint an arbitrator who had not actually been appointed, but for whose appointment adequate provisions have been made5. In the instant case, as an arbitrator has not been appointed by the parties and as the parties are not agreed upon an arbitrator the court may proceed to appoint an arbitrator, but in so doing it is desirable that the court should consider the feasibility of appointing an arbitrator according to the terms of the contract. In this case the respondent in his petition has prayed for an appointment of an arbitrator under the terms of the agreement. Before us both the parties expressed a desire that the President should be asked to appoint an arbitrator according to clause 29 of the agreement. We feel that there could be no objection to this suggestion and we accordingly ask the President to appoint an arbitrator as contemplated under clause 29 within two months from today. The arbitrator so appointed will immediately enter on his duties and dispose of the reference as expeditiously as possible.6. | 1[ds]5. In the instant case, as an arbitrator has not been appointed by the parties and as the parties are not agreed upon an arbitrator the court may proceed to appoint an arbitrator, but in so doing it is desirable that the court should consider the feasibility of appointing an arbitrator according to the terms of the contract. In this case the respondent in his petition has prayed for an appointment of an arbitrator under the terms of the agreement. Before us both the parties expressed a desire that the President should be asked to appoint an arbitrator according to clause 29 of the agreement. We feel that there could be no objection to this suggestion and we accordingly ask the President to appoint an arbitrator as contemplated under clause 29 within two months from today. The arbitrator so appointed will immediately enter on his duties and dispose of the reference as expeditiously as possible. | 1 | 1,563 | 167 | ### Instruction:
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(with such designation only as he may specify for Manipur Territory) or if he is unwilling to act to the sole arbitrator some other person appointed by the arbitrator. An arbitrator can be appointed only under the terms of the agreement. The High Court rejected this contention on the ground that the arbitration agreement does not mention any appointed arbitrator. The arbitration agreement states that an abritrator has to be appointed by the President of India or if he is unwilling to act to the sole arbitration, some other person has to be appointed by the Administration. The High Court in appeal held that it was manifest that there was no arbitrator appointed in the agreement3. Under Section 20(4) of the Arbitration Act when an agreement is filed, the court is required to make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. The sub-section requires that the court shall make an order of reference to the arbitrator appointed by the parties whether in the agreement or otherwise. If no such arbitrator had been appointed and when the parties cannot agree upon an arbitrator, the court may proceed to appoint an arbitrator by itself. Thus if an arbitrator had been appointed whether in the agreement or otherwise, the court shall make an order of reference to him. In this case, clause 29 of the agreement provides that every dispute shall be referred to the sole arbitration of the person appointed by the President of India or if he is unwilling to act to the person appointed by the arbitrator. An arbitrator, in fact, has not been appointed by the President though the provision has been made for such appointment. Construing strictly the words of sub-section (4), the court is not bound to make an order of reference to the person that is to be appointed by the President of India or in the event of his not willing to a person to be appointed by the Administration, for the arbitrator has not been appointed as contemplated in the sub-section. Therefore, it will not be obligatory on the part of the court to make an order of reference to the arbitrator that may be appointed by the President. If an arbitrator had not been appointed as required in the sub-section, the court is to find whether the parties could agree upon an arbitrator. If the parties agree, the court has to appoint the person agreed to as an arbitrator. If there is no such agreement, the court will have to appoint an arbitrator of its choice4. It was contended on behalf of the appellant that when the arbitration agreement contains adequate and exhaustive machinery for appointment of arbitrators including substitutional appointments in case the appointed arbitrator refuses to act, it must be construed as the arbitrator having been appointed under sub-section (4) to Section 20. In support of this contention a decision of Calcutta High Court in Union of India v. HIMCO (India) Pvt. Ltd. (AIR 1965 Cal 404 ) was relied on, wherein Bachawat, J. observed that the arbitration agreement contained adequate and exhaustive machinery for appointment of arbitrators including substitutional appointments in case the appointed arbitrator refuses to act. The learned Judge observed the fact that the appointed arbitrator has not yet signified his willingness to act as arbitrator does not debar the court from making an order of reference of the dispute to him. If subsequently refuses to act as the arbitrator the procedure laid down in the arbitration agreement will prevail and will have to be followed. In support of this view the learned Judge relied on the decision of this Court in M/s. Dhanrajamal Govindram v. M/s. Shamji Kalidas and Co. (AIR 1961 SC 1285 ). This Court referring to the powers of the Court under Section 20(4) to appoint an arbitrator observed that it was perfectly possible (in the case) if the parties appointed the arbitrator or arbitrators. If the parties do not agree, the court may be required to make a decision as to who should be selected as an arbitrator. The Court further observed that in the case before it the parties by their agreement have placed the power of selecting an arbitrator or arbitrators in the hands of Chairman of the Board of Directors, and the court can certainly perform the ministerial act of sending the agreement to him to be dealt with by him. The decisions do not consider the question whether under Section 20(4) the court is bound to appoint an arbitrator who has actually not been appointed but for whose appointment adequate and exhaustive machinery had been provided. Taking into account the wording of the sub-section that the court shall make an order of reference to the arbitrator appointed by the parties we do not feel that the sub-section requires the court to appoint an arbitrator who had not actually been appointed, but for whose appointment adequate provisions have been made5. In the instant case, as an arbitrator has not been appointed by the parties and as the parties are not agreed upon an arbitrator the court may proceed to appoint an arbitrator, but in so doing it is desirable that the court should consider the feasibility of appointing an arbitrator according to the terms of the contract. In this case the respondent in his petition has prayed for an appointment of an arbitrator under the terms of the agreement. Before us both the parties expressed a desire that the President should be asked to appoint an arbitrator according to clause 29 of the agreement. We feel that there could be no objection to this suggestion and we accordingly ask the President to appoint an arbitrator as contemplated under clause 29 within two months from today. The arbitrator so appointed will immediately enter on his duties and dispose of the reference as expeditiously as possible.6.
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5. In the instant case, as an arbitrator has not been appointed by the parties and as the parties are not agreed upon an arbitrator the court may proceed to appoint an arbitrator, but in so doing it is desirable that the court should consider the feasibility of appointing an arbitrator according to the terms of the contract. In this case the respondent in his petition has prayed for an appointment of an arbitrator under the terms of the agreement. Before us both the parties expressed a desire that the President should be asked to appoint an arbitrator according to clause 29 of the agreement. We feel that there could be no objection to this suggestion and we accordingly ask the President to appoint an arbitrator as contemplated under clause 29 within two months from today. The arbitrator so appointed will immediately enter on his duties and dispose of the reference as expeditiously as possible.
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Hartwell Prescott Singh Vs. Uttar Pradesh Government & Others | 1944, with the approval of the Public Service Commission of the United Provinces. He served in Class II of the United Provinces Agricultural Service in a temporary capacity for about ten years when he was reverted to his original appointment in the Subordinate Agricultural Service by an order of the Uttar Pradesh Government dated 3rd May 1954. The appellant protested against his reversion and handed over charge on 16th May 1954 and went on leave until 2nd October 1954. In the meanwhile a notice dated 13th September 1954, terminating the appellants services in the Subordinate Agricultural Service was issued to him by the Director of Agriculture. The notice purported to be under R. 25. cl. (4) of the Subordinate Agriculture Service Rules. This notice stated that the appellants services would not be required after the expiry of one month from the date of the issue of the order terminating his services. The appellant challenged the validity of the aforesaid orders of reversion and termination of his services. The High Court in dismissing his application came to the conclusion that the appellant had not been dismissed or removed from service and that Art. 311 of the Constitution did not apply in the circumstances of the case. The High Court dismissed an application filed by the appellant for the issue of a certificate that the case was a fit one for appeal to this Court.4. It was conceded before us on behalf of the appellant that at no time was he confirmed in any post either in the Subordinate Agricultural Service or in the United Provinces Agricultural Service Class II. In our opinion, the finding of the High Court that the appellant had failed to establish that he was confirmed as a member of the Subordinate Agricultural Service, based upon the materials before it, was a correct finding. The further finding of the High Court that the appellants contention that he had been absorbed in the permanent cadre of the United Provinces Agricultural Service had not been substantiated appears to us also to be correct finding upon the materials on the record.5. In considering the case of the appellant we must proceed on the basis that at no time was the appellant appointed permanently either to the United Provinces Agricultural Service or to the Subordinate Agricultural Service. At all times he was temporarily employed. Mr. Andleys contention on behalf of the appellant had been that Art. 311 of the Constitution applied even to a temporary appointment because the appellant held a civil post under the Government of the State of Uttar Pradesh although he may not have been a member of a Civil Service of that State. The order terminating his services amounted to dismissal or removal from the post as it conveyed an imputation of inefficiency and unsatisfactory work and the order reverting him from the post held by him in the United Provinces Agricultural Service to his original appointment in the Subordinate Agricultural Service amounted to a reduction in his rank, as it was by way of penalty. The mandatory provision of Art. 311 not having been complied with the aforesaid orders passed against the appellant were illegal. The question for consideration, therefore, is whether the orders terminating the appellants services and reverting him to his original appointment in the Subordinate Agricultural Service amount to removal, dismissal or reduction in rank within the meaning of the provisions of Art. 311 of the Constitution.6. The decisions of this Court in Satish Chandra Anand v. The Union of India, 1953 S C R 655: (A I R 1953 S C 250) (A) and in Shyam Lal v. The State of Uttar Pradesh, 1955-1 S C R 26: A I R 1954 S C 369) (B)clearly establish that termination of the services of a person employed by the Government does not amount in all cases to dismissal or removal from service. In the former case the termination was in accordance with the terms of the contract and in the latter case it was by way of compulsory retirement of a member of a Service under Art. 465 A of the Civil Service Regulations. This Court held that in either case the termination of the services of the person concerned amounted to dismissal or removal from service within the meaning of Art. 311 of the Constitution. In the present case the appellant was employed in a temporary capacity in the Subordinate Agricultural Service and was shown in the Gradation List as on probation. His conditions of service were governed by the Subordinate Agricultural Service Rules. Rule 25 (4) of these Rules permits the Director of Agriculture to terminate the services of a person on probation by giving him one months notice if that person has not made sufficient use of his opportunities or if he has otherwise failed to give satisfaction.The termination of the appellants services under R. 25 (4) does not amount to dismissal or removal from service within the meaning of Art. 311 as it was in accordance with the terms of the conditions of service applicable to the appellant. In principle, we cannot see any clear distinction between the termination of the services of a person under the terms of a contract governing him and the termination of his services in accordance with the terms of his conditions of service. The order complained against did not contravene the provisions of Art. 311 and was therefore, a valid order.7. Reversion from a temporary post held by a person does not per se amount to reduction in rank because the temporary post held by him is not his substantive rank. For the purposes of this appeal it is unnecessary to decide in what circumstances a reversion would be regarded as reduction in rank as the appellant has not established as a fact that the order of reversion passed against him was by way of a penalty.The order of reversion, therefore, did not contravene the provisions of Art. 311 and was a valid order.8. | 0[ds]In our opinion, the finding of the High Court that the appellant had failed to establish that he was confirmed as a member of the Subordinate Agricultural Service, based upon the materials before it, was a correctfurther finding of the High Court that the appellants contention that he had been absorbed in the permanent cadre of the United Provinces Agricultural Service had not been substantiated appears to us also to be correct finding upon the materials on theprinciple, we cannot see any clear distinction between the termination of the services of a person under the terms of a contract governing him and the termination of his services in accordance with the terms of his conditions of service. The order complained against did not contravene the provisions of Art. 311 and was therefore, a valid order.Reversion from a temporary post held by a person does not per se amount to reduction in rank because the temporary post held by him is not his substantive rank. For the purposes of this appeal it is unnecessary to decide in what circumstances a reversion would be regarded as reduction in rank as the appellant has not established as a fact that the order of reversion passed against him was by way of a penalty.The order of reversion, therefore, did not contravene the provisions of Art. 311 and was a valid order. | 0 | 1,286 | 244 | ### Instruction:
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1944, with the approval of the Public Service Commission of the United Provinces. He served in Class II of the United Provinces Agricultural Service in a temporary capacity for about ten years when he was reverted to his original appointment in the Subordinate Agricultural Service by an order of the Uttar Pradesh Government dated 3rd May 1954. The appellant protested against his reversion and handed over charge on 16th May 1954 and went on leave until 2nd October 1954. In the meanwhile a notice dated 13th September 1954, terminating the appellants services in the Subordinate Agricultural Service was issued to him by the Director of Agriculture. The notice purported to be under R. 25. cl. (4) of the Subordinate Agriculture Service Rules. This notice stated that the appellants services would not be required after the expiry of one month from the date of the issue of the order terminating his services. The appellant challenged the validity of the aforesaid orders of reversion and termination of his services. The High Court in dismissing his application came to the conclusion that the appellant had not been dismissed or removed from service and that Art. 311 of the Constitution did not apply in the circumstances of the case. The High Court dismissed an application filed by the appellant for the issue of a certificate that the case was a fit one for appeal to this Court.4. It was conceded before us on behalf of the appellant that at no time was he confirmed in any post either in the Subordinate Agricultural Service or in the United Provinces Agricultural Service Class II. In our opinion, the finding of the High Court that the appellant had failed to establish that he was confirmed as a member of the Subordinate Agricultural Service, based upon the materials before it, was a correct finding. The further finding of the High Court that the appellants contention that he had been absorbed in the permanent cadre of the United Provinces Agricultural Service had not been substantiated appears to us also to be correct finding upon the materials on the record.5. In considering the case of the appellant we must proceed on the basis that at no time was the appellant appointed permanently either to the United Provinces Agricultural Service or to the Subordinate Agricultural Service. At all times he was temporarily employed. Mr. Andleys contention on behalf of the appellant had been that Art. 311 of the Constitution applied even to a temporary appointment because the appellant held a civil post under the Government of the State of Uttar Pradesh although he may not have been a member of a Civil Service of that State. The order terminating his services amounted to dismissal or removal from the post as it conveyed an imputation of inefficiency and unsatisfactory work and the order reverting him from the post held by him in the United Provinces Agricultural Service to his original appointment in the Subordinate Agricultural Service amounted to a reduction in his rank, as it was by way of penalty. The mandatory provision of Art. 311 not having been complied with the aforesaid orders passed against the appellant were illegal. The question for consideration, therefore, is whether the orders terminating the appellants services and reverting him to his original appointment in the Subordinate Agricultural Service amount to removal, dismissal or reduction in rank within the meaning of the provisions of Art. 311 of the Constitution.6. The decisions of this Court in Satish Chandra Anand v. The Union of India, 1953 S C R 655: (A I R 1953 S C 250) (A) and in Shyam Lal v. The State of Uttar Pradesh, 1955-1 S C R 26: A I R 1954 S C 369) (B)clearly establish that termination of the services of a person employed by the Government does not amount in all cases to dismissal or removal from service. In the former case the termination was in accordance with the terms of the contract and in the latter case it was by way of compulsory retirement of a member of a Service under Art. 465 A of the Civil Service Regulations. This Court held that in either case the termination of the services of the person concerned amounted to dismissal or removal from service within the meaning of Art. 311 of the Constitution. In the present case the appellant was employed in a temporary capacity in the Subordinate Agricultural Service and was shown in the Gradation List as on probation. His conditions of service were governed by the Subordinate Agricultural Service Rules. Rule 25 (4) of these Rules permits the Director of Agriculture to terminate the services of a person on probation by giving him one months notice if that person has not made sufficient use of his opportunities or if he has otherwise failed to give satisfaction.The termination of the appellants services under R. 25 (4) does not amount to dismissal or removal from service within the meaning of Art. 311 as it was in accordance with the terms of the conditions of service applicable to the appellant. In principle, we cannot see any clear distinction between the termination of the services of a person under the terms of a contract governing him and the termination of his services in accordance with the terms of his conditions of service. The order complained against did not contravene the provisions of Art. 311 and was therefore, a valid order.7. Reversion from a temporary post held by a person does not per se amount to reduction in rank because the temporary post held by him is not his substantive rank. For the purposes of this appeal it is unnecessary to decide in what circumstances a reversion would be regarded as reduction in rank as the appellant has not established as a fact that the order of reversion passed against him was by way of a penalty.The order of reversion, therefore, did not contravene the provisions of Art. 311 and was a valid order.8.
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### Explanation:
In our opinion, the finding of the High Court that the appellant had failed to establish that he was confirmed as a member of the Subordinate Agricultural Service, based upon the materials before it, was a correctfurther finding of the High Court that the appellants contention that he had been absorbed in the permanent cadre of the United Provinces Agricultural Service had not been substantiated appears to us also to be correct finding upon the materials on theprinciple, we cannot see any clear distinction between the termination of the services of a person under the terms of a contract governing him and the termination of his services in accordance with the terms of his conditions of service. The order complained against did not contravene the provisions of Art. 311 and was therefore, a valid order.Reversion from a temporary post held by a person does not per se amount to reduction in rank because the temporary post held by him is not his substantive rank. For the purposes of this appeal it is unnecessary to decide in what circumstances a reversion would be regarded as reduction in rank as the appellant has not established as a fact that the order of reversion passed against him was by way of a penalty.The order of reversion, therefore, did not contravene the provisions of Art. 311 and was a valid order.
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Inder Singh & Anr Vs. State Of Punjab & Ors | It is clear from these provisions that the objects of the Act are: (a) to secure the rights of tenants, (b) to provide for acquisition of proprietary rights in the land to the tenant, (c) to provide for permissible limit of 30 standard acres, (d) to acquire surplus areas and distribute them amongst certain classes of persons including landless persons, and (e) to provide for compensation at prescribed rates payable by tenants and by Government on its acquiring surplus land. The principle laid down by the Act is that no person whether a landowner or tenant, should hold land more than the permissible area so that the surplus land can be distributed amongst the more needy sections of Society. In following this principle the Act lays down two corollaries, namely (i) not to recognise any transfer or disposition made by a landowner after a certain date as otherwise the scheme of distribution of surplus land would be frustrated, and (ii) to equate an individual 1andowner and a Hindu undivided family consisting of a landowner and his descendants so that both the units are entitled to hold only the permissible area of 30 standard acres. In our view, it cannot be gainsaid that S. 32-KK deals with an estate within the meaning of Art. 31-A and is concerned with agrarian reform. The decision in Kochunis case, (1960) 3 SCR 887 =(AIR 1960 SC 1080 ) (supra) cannot, therefore, avail the appellants. 8. In Pritam Singh v. State of Punjab, Writ Petn. No. 110 of 1966, D/- 1-2-1967- (AIR 1967 SC 930 ), this Court upheld the validity of S. 32-FF and held that that section was protected by Art. 31-A against any challenge under Art. 19. If a transfer or a disposition of land can validly be ignored under S. 32-FF for the purpose of ascertaining surplus land and acquisition of such surplus land by the State and that section is protected by Art. 31-A, it is difficult to say why S. 32-KK which, as, aforesaid, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is not equally protected by that Article. The object of enacting S. 32-KK was to prevent the landowner and his descendants by reason of their constituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard acres and preventing thereby distribution of surplus area. As to the pros and cons of such a provision much can be said on either side. The appellants could have perhaps contended that such a provision amounted to an unreasonable restriction. But such a contention is debarred by Art. 31-A and a challenge to the validity of that Article is no longer possible in view of the recent decision in I. C. Golak Nath v. State of Punjab Writ Petn. No. 153 of 1966, D/- 27-2-1967 -(AIR 1967 SC 1643 ). 9. The contention that the section is not one relating to agrarian reform is hardly sustainable in view of the above-mentioned objects of the Act in general and of S. 32-KK in particular.Similarly, the contention that the section has the effect of defeating the rights of a member of a Hindu undivided family from the family property also cannot be sustained because his rights in the permissible area retained by the landowner and his right to compensation in respect of the surplus area are not touched by the section. Nor is it possible to say that the section results in the transfer of rights of the descendants of a landowner in the permissible or surplus area in favour of such landowner. The section does not effect any change in the rights of the descendants as members of a Hindu undivided family or the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them. The contention as to the validity of S. 32-KK therefore, must fail. 10. The next contention was that the section infringes Art. 15 inasmuch as by limiting it only to Hindu undivided families it discriminates against descendants forming such families on the ground of religion only. It was argued that the customary law in Punjab recognises joint and undivided families amongst non-Hindu persons also and since the section affects only the Hindu undivided families, it violates Art 15. 11. In support of this contention passages from Rattigans Digest of Customary Law, 14th Edn., pp. 35 to 36 were relied on to show that the institution of undivided family exists amongst certain classes of Muslims in certain districts of Punjab. Support was also sought from the decisions in Banarsi Das v. Wealth Tax Officer, Spl. Circle, Meerut, (1965) 56 ITR 224 = (AIR 1965 SC 1387 ) and Mammad Keyi v. Wealth Tax Officer, Calicut, (1966) 60 ITR 737 =(AIR 1966 Ker 77 ) The former was concerned with the question whether a Hindu undivided family is embraced within the term individuals in Entry 56 of List I of the Seventh Schedule to the Constitution for purposes of the Wealth Tax Act, 1957. The latter decision does not touch the question under Art. 15. Neither of the two decisions therefore, can assist. On the other hand, in the case of ILR (1963) 1 Punj 500 = (AIR 1963 Punj 319) (supra) the High Court of Punjab has held that S. 32-KK does not create any discrimination on the ground of religion. In the present case, it is not possible to give any Concluding answer to the contention raised by Mr. Mani firstly because such a point was not raised in the writ petition and secondly because the appellants have not placed before us sufficient data to enable us to go into the question. We, therefore, refrain from examining that contention. 12. | 0[ds]It is clear from these provisions that the objects of the Act are: (a) to secure the rights of tenants, (b) to provide for acquisition of proprietary rights in the land to the tenant, (c) to provide for permissible limit of 30 standard acres, (d) to acquire surplus areas and distribute them amongst certain classes of persons including landless persons, and (e) to provide for compensation at prescribed rates payable by tenants and by Government on its acquiring surplus land. The principle laid down by the Act is that no person whether a landowner or tenant, should hold land more than the permissible area so that the surplus land can be distributed amongst the more needy sections of Society. In following this principle the Act lays down two corollaries, namely (i) not to recognise any transfer or disposition made by a landowner after a certain date as otherwise the scheme of distribution of surplus land would be frustrated, and (ii) to equate an individual 1andowner and a Hindu undivided family consisting of a landowner and his descendants so that both the units are entitled to hold only the permissible area of 30 standard acres. In our view, it cannot be gainsaid that S. 32-KK deals with an estate within the meaning of Art. 31-A and is concerned with agrarian reform. The decision in Kochunis case, (1960) 3 SCR 887 =(AIR 1960 SC 1080 ) (supra) cannot, therefore, avail the appellantsIf a transfer or a disposition of land can validly be ignored under S. 32-FF for the purpose of ascertaining surplus land and acquisition of such surplus land by the State and that section is protected by Art. 31-A, it is difficult to say why S. 32-KK which, as, aforesaid, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is not equally protected by that Article. The object of enacting S. 32-KK was to prevent the landowner and his descendants by reason of their constituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard acres and preventing thereby distribution of surplus area. As to the pros and cons of such a provision much can be said on either side. The appellants could have perhaps contended that such a provision amounted to an unreasonable restrictionOn the other hand, in the case of ILR (1963) 1 Punj 500 = (AIR 1963 Punj 319) (supra) the High Court of Punjab has held that S. 32-KK does not create any discrimination on the ground of religion. In the present case, it is not possible to give any Concluding answer to the contention raised by Mr. Mani firstly because such a point was not raised in the writ petition and secondly because the appellants have not placed before us sufficient data to enable us to go into the question. We, therefore, refrain from examining that contention. | 0 | 3,171 | 576 | ### 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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It is clear from these provisions that the objects of the Act are: (a) to secure the rights of tenants, (b) to provide for acquisition of proprietary rights in the land to the tenant, (c) to provide for permissible limit of 30 standard acres, (d) to acquire surplus areas and distribute them amongst certain classes of persons including landless persons, and (e) to provide for compensation at prescribed rates payable by tenants and by Government on its acquiring surplus land. The principle laid down by the Act is that no person whether a landowner or tenant, should hold land more than the permissible area so that the surplus land can be distributed amongst the more needy sections of Society. In following this principle the Act lays down two corollaries, namely (i) not to recognise any transfer or disposition made by a landowner after a certain date as otherwise the scheme of distribution of surplus land would be frustrated, and (ii) to equate an individual 1andowner and a Hindu undivided family consisting of a landowner and his descendants so that both the units are entitled to hold only the permissible area of 30 standard acres. In our view, it cannot be gainsaid that S. 32-KK deals with an estate within the meaning of Art. 31-A and is concerned with agrarian reform. The decision in Kochunis case, (1960) 3 SCR 887 =(AIR 1960 SC 1080 ) (supra) cannot, therefore, avail the appellants. 8. In Pritam Singh v. State of Punjab, Writ Petn. No. 110 of 1966, D/- 1-2-1967- (AIR 1967 SC 930 ), this Court upheld the validity of S. 32-FF and held that that section was protected by Art. 31-A against any challenge under Art. 19. If a transfer or a disposition of land can validly be ignored under S. 32-FF for the purpose of ascertaining surplus land and acquisition of such surplus land by the State and that section is protected by Art. 31-A, it is difficult to say why S. 32-KK which, as, aforesaid, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is not equally protected by that Article. The object of enacting S. 32-KK was to prevent the landowner and his descendants by reason of their constituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard acres and preventing thereby distribution of surplus area. As to the pros and cons of such a provision much can be said on either side. The appellants could have perhaps contended that such a provision amounted to an unreasonable restriction. But such a contention is debarred by Art. 31-A and a challenge to the validity of that Article is no longer possible in view of the recent decision in I. C. Golak Nath v. State of Punjab Writ Petn. No. 153 of 1966, D/- 27-2-1967 -(AIR 1967 SC 1643 ). 9. The contention that the section is not one relating to agrarian reform is hardly sustainable in view of the above-mentioned objects of the Act in general and of S. 32-KK in particular.Similarly, the contention that the section has the effect of defeating the rights of a member of a Hindu undivided family from the family property also cannot be sustained because his rights in the permissible area retained by the landowner and his right to compensation in respect of the surplus area are not touched by the section. Nor is it possible to say that the section results in the transfer of rights of the descendants of a landowner in the permissible or surplus area in favour of such landowner. The section does not effect any change in the rights of the descendants as members of a Hindu undivided family or the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them. The contention as to the validity of S. 32-KK therefore, must fail. 10. The next contention was that the section infringes Art. 15 inasmuch as by limiting it only to Hindu undivided families it discriminates against descendants forming such families on the ground of religion only. It was argued that the customary law in Punjab recognises joint and undivided families amongst non-Hindu persons also and since the section affects only the Hindu undivided families, it violates Art 15. 11. In support of this contention passages from Rattigans Digest of Customary Law, 14th Edn., pp. 35 to 36 were relied on to show that the institution of undivided family exists amongst certain classes of Muslims in certain districts of Punjab. Support was also sought from the decisions in Banarsi Das v. Wealth Tax Officer, Spl. Circle, Meerut, (1965) 56 ITR 224 = (AIR 1965 SC 1387 ) and Mammad Keyi v. Wealth Tax Officer, Calicut, (1966) 60 ITR 737 =(AIR 1966 Ker 77 ) The former was concerned with the question whether a Hindu undivided family is embraced within the term individuals in Entry 56 of List I of the Seventh Schedule to the Constitution for purposes of the Wealth Tax Act, 1957. The latter decision does not touch the question under Art. 15. Neither of the two decisions therefore, can assist. On the other hand, in the case of ILR (1963) 1 Punj 500 = (AIR 1963 Punj 319) (supra) the High Court of Punjab has held that S. 32-KK does not create any discrimination on the ground of religion. In the present case, it is not possible to give any Concluding answer to the contention raised by Mr. Mani firstly because such a point was not raised in the writ petition and secondly because the appellants have not placed before us sufficient data to enable us to go into the question. We, therefore, refrain from examining that contention. 12.
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It is clear from these provisions that the objects of the Act are: (a) to secure the rights of tenants, (b) to provide for acquisition of proprietary rights in the land to the tenant, (c) to provide for permissible limit of 30 standard acres, (d) to acquire surplus areas and distribute them amongst certain classes of persons including landless persons, and (e) to provide for compensation at prescribed rates payable by tenants and by Government on its acquiring surplus land. The principle laid down by the Act is that no person whether a landowner or tenant, should hold land more than the permissible area so that the surplus land can be distributed amongst the more needy sections of Society. In following this principle the Act lays down two corollaries, namely (i) not to recognise any transfer or disposition made by a landowner after a certain date as otherwise the scheme of distribution of surplus land would be frustrated, and (ii) to equate an individual 1andowner and a Hindu undivided family consisting of a landowner and his descendants so that both the units are entitled to hold only the permissible area of 30 standard acres. In our view, it cannot be gainsaid that S. 32-KK deals with an estate within the meaning of Art. 31-A and is concerned with agrarian reform. The decision in Kochunis case, (1960) 3 SCR 887 =(AIR 1960 SC 1080 ) (supra) cannot, therefore, avail the appellantsIf a transfer or a disposition of land can validly be ignored under S. 32-FF for the purpose of ascertaining surplus land and acquisition of such surplus land by the State and that section is protected by Art. 31-A, it is difficult to say why S. 32-KK which, as, aforesaid, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is not equally protected by that Article. The object of enacting S. 32-KK was to prevent the landowner and his descendants by reason of their constituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard acres and preventing thereby distribution of surplus area. As to the pros and cons of such a provision much can be said on either side. The appellants could have perhaps contended that such a provision amounted to an unreasonable restrictionOn the other hand, in the case of ILR (1963) 1 Punj 500 = (AIR 1963 Punj 319) (supra) the High Court of Punjab has held that S. 32-KK does not create any discrimination on the ground of religion. In the present case, it is not possible to give any Concluding answer to the contention raised by Mr. Mani firstly because such a point was not raised in the writ petition and secondly because the appellants have not placed before us sufficient data to enable us to go into the question. We, therefore, refrain from examining that contention.
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Narandas Morardas Gaziwala & Others Vs. S.P.A.M. Papammal & Another | for accounts for the material period.6. We proceed to consider the next question involved in this case viz., whether the plaintiff is entitled to set up a parole agreement to prove the condition precedent as to the enforceability of the promissory note. The argument of the Solicitor-General on behalf of the Surat firm is that the plaintiff is precluded from setting up a parole agreement by reason of the provisions of S. 92 of the Evidence Act which states :"92. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:Proviso (1) ..................Proviso (2) ..................Proviso (3) The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved..................................................."It was submitted by the Solicitor-General that the High Court has found that there is an agreement between the parties that the promissory note should be discharged by commission payable by the Surat firm. It was contended that the agreement was with regard to the mode of discharge of the obligation of promissory note and not a condition precedent to its enforceability. It was therefore argued that the bar under S. 92 of the Evidence Act operates and the plaintiff was not entitled to adduce any evidence with regard to a parole agreement. The contention was that the promissory note represented in law an unconditional undertaking to pay an amount which the plaintiff was already under a liability to pay and it was not open to him in law to plead a contemporaneous oral agreement contrary to the terms of that undertaking. We are unable to accept the submission of the Solicitor-General as correct. The finding of the High Court is that there was a collateral oral agreement that the obligation under the promissory note will not be enforced for 5 years and unless the amount was due after accounting for the period of the commission agency. In our opinion, the agreement was not related to the mode of discharge of the obligation under the promissory note but that it was a condition precedent to the enforceability of the promissory note and it is open to the plaintiff to adduce evidence of oral agreement under the 3rd proviso to S. 92 of the Evidence Act. The view that we have taken is borne out by the decision of the Judicial Committee in Rowland Ady. v. Administrator-General of Burma, AIR 1938 PC 198 . In that case it was observed by the judicial Committee that it is necessary to distinguish a collateral agreement which alters the legal effect of the instrument from an agreement that the instrument should not be an effective instrument until some condition is fulfilled, or, to put it in another form, it is necessary to distinguish an agreement in defeasance of the contract from an agreement suspending the coming into force of the contract contained in the promissory note. It was therefore held by the Judicial Committee in that case that where the promissory note is, by its express terms, payable on demand, that is at once, the obligation under the note attaches immediately. A collateral oral agreement not to make demand until a certain specified condition is fulfilled has the intention and effect of suspending the coming into force of that obligation, which is the contract contained in the promissory note. Such an oral agreement constitutes a condition precedent to the attaching of the obligation and is within the terms of Proviso 3 of S. 92 of the Evidence Act. On the facts of that case the Judicial Committee held that by terms of the oral agreement no liability under the note could arise until the happening of an event and that being so, the case fell within the 3rd proviso to S. 92 of the Evidence Act. It was further made clear that unless the agreement had the effect of making the liability conditional upon the happening of an event, proof of an oral agreement at variance with the terms of the note would not be permitted. At page 202 of the Report, Lord Wright observed as follows:"A case like the present is to be distinguished from that dealt with in Ramjibun Serowgy v. Oghore Nath Chatterjee, (1898) ILR 25 Cal 401- in which the promissory note, though absolute in its terms, was said to be subject to an oral agreement, providing that it was not to be enforceable by suit until the happening of a particular event. Sale J., in rejecting this evidence, expressed his opinion that the proper meaning of Proviso (3) was that the contemporaneous oral agreement to be admissible must be to the effect that a written contract was to be of no force at all and was to constitute no obligation until the happening of a certain event. This description in their Lordships judgment applies to the present case To the same effect Page J., in Walter Mitchell v. A. K. Tennent-ILR 52 Cal 677: (AIR 1925 Cal 1007 ) - held that the collateral agreement alleged in that case constituted a condition precedent to the attachment of any obligation under the cheques in question so that they remained inoperative until the condition was fulfilled."In the present case also we are of opinion that the oral agreement found to have been proved by the High Court constituted a condition precedent to the attaching of the obligation under the promissory note and falls within the terms of the 3rd proviso to S 92 of the Evidence Act and it was therefore, open to the plaintiff to lead evidence and to prove such an oral agreement. | 1[ds]In our opinion, the statute is not exhaustive and the right of the agent to sue the principal for accounts is an equitable right arising under special circumstances and is not a statutory right.In our opinion, the legal position in India is not different. Though an agent has no statutory right for an account from his principal, nevertheless there may be special circumstances rendering it equitable that the principal should account to the agent. Such a case may arise where all the accounts are in the possession of the principal and the agent does not possess accounts to enable him to determine his claim for commission against his principal. The right of the agent may also arise in an exceptional case where his remuneration depends on the extent of clearings which are not known to him or where he cannot be aware of the extent of the amount due to him unless the accounts of his principal are gone into. This view is borne out by the decision of the Madras High Court in Ramachandra Madhavadoss Co. v. Moidunkutti Birankutti and Bros, AIR 1938 Mad 707 , of the Lahore High Court in Ram Lal Kapur and Sons v. Asian Commercial Assurance Co. Ltd., AIR 1933 Lah 483, and of the Nagpur High Court in Basant Kumar v. Roshanlal, ILR (1954) Nag 435: (AIR 1954 Nag 300). In the present case the High Court has found that the transactions in respect of which the plaintiff is entitled to commission are peculiarly within the knowledge of the principal alone, viz., of the Surat firm. There is also prima facie evidence adduced on behalf of the plaintiff in this case in support of his allegation that the Surat firm had made direct sales to customers in contravention of the contract of sole agency granted to the plaintiff. The High Court referred in this connection to the evidence of the plaintiff - Exs. A-26 and A-28-which are complaints made by the plaintiff to the Surat firm with regard to direct sales made to Mr. M. K. Iyengar. The High Court has also observed that to none of the letters or telegrams from the plaintiff the Surat firm or their accredited representative Ratilal cared to send any reply. We are, therefore of the opinion that in the special circumstances of this case, the plaintiff is entitled to sue the Surat firm for accounts for the materialfinding of the High Court is that there was a collateral oral agreement that the obligation under the promissory note will not be enforced for 5 years and unless the amount was due after accounting for the period of the commission agency. In our opinion, the agreement was not related to the mode of discharge of the obligation under the promissory note but that it was a condition precedent to the enforceability of the promissory note and it is open to the plaintiff to adduce evidence of oral agreement under the 3rd proviso to S. 92 of the Evidence Act. The view that we have taken is borne out by the decision of the Judicial Committee in Rowland Ady. v. Administrator-General of Burma, AIR 1938 PC 198 . In that case it was observed by the judicial Committee that it is necessary to distinguish a collateral agreement which alters the legal effect of the instrument from an agreement that the instrument should not be an effective instrument until some condition is fulfilled, or, to put it in another form, it is necessary to distinguish an agreement in defeasance of the contract from an agreement suspending the coming into force of the contract contained in the promissory note. It was therefore held by the Judicial Committee in that case that where the promissory note is, by its express terms, payable on demand, that is at once, the obligation under the note attaches immediately. A collateral oral agreement not to make demand until a certain specified condition is fulfilled has the intention and effect of suspending the coming into force of that obligation, which is the contract contained in the promissory note. Such an oral agreement constitutes a condition precedent to the attaching of the obligation and is within the terms of Proviso 3 of S. 92 of the Evidence Act. On the facts of that case the Judicial Committee held that by terms of the oral agreement no liability under the note could arise until the happening of an event and that being so, the case fell within the 3rd proviso to S. 92 of the Evidence Act. It was further made clear that unless the agreement had the effect of making the liability conditional upon the happening of an event, proof of an oral agreement at variance with the terms of the note would not bethe present case also we are of opinion that the oral agreement found to have been proved by the High Court constituted a condition precedent to the attaching of the obligation under the promissory note and falls within the terms of the 3rd proviso to S 92 of the Evidence Act and it was therefore, open to the plaintiff to lead evidence and to prove such an oral213 of the Indian contract Act specifically provides that an agent is bound to render proper accounts to his principal on demand. The principals right to sue an agent for rendition of accounts is, therefore, recognised by the statute. Butthe question is whether an agent can sue the principal for accounts.There is no such provision in the Indian Contractare unable to accept the submission of theas correct. Thefinding of the High Court is that there was a collateral oral agreement that the obligation under the promissory note will not be enforced for 5 years and unless the amount was due after accounting for the period of the commission agency. In our opinion, the agreement was not related to the mode of discharge of the obligation under the promissory note but that it was a condition precedent to the enforceability of the promissory note and it is open to the plaintiff to adduce evidence of oral agreement under the 3rd proviso to S. 92 of the Evidence Act. The view that we have taken is borne out by the decision of the Judicial Committee in Rowland Ady. v.of Burma, AIR 1938 PC 198 . In that case it was observed by the judicial Committee that it is necessary to distinguish a collateral agreement which alters the legal effect of the instrument from an agreement that the instrument should not be an effective instrument until some condition is fulfilled, or, to put it in another form, it is necessary to distinguish an agreement in defeasance of the contract from an agreement suspending the coming into force of the contract contained in the promissory note. It was therefore held by the Judicial Committee in that case that where the promissory note is, by its express terms, payable on demand, that is at once, the obligation under the note attaches immediately. A collateral oral agreement not to make demand until a certain specified condition is fulfilled has the intention and effect of suspending the coming into force of that obligation, which is the contract contained in the promissory note. Such an oral agreement constitutes a condition precedent to the attaching of the obligation and is within the terms of Proviso 3 of S. 92 of the Evidence Act. On the facts of that case the Judicial Committee held that by terms of the oral agreement no liability under the note could arise until the happening of an event and that being so, the case fell within the 3rd proviso to S. 92 of the Evidence Act. It was further made clear that unless the agreement had the effect of making the liability conditional upon the happening of an event, proof of an oral agreement at variance with the terms of the note would not bepermitted. At page 202 of the Report, Lord Wright observed ascase like the present is to be distinguished from that dealt with in Ramjibun Serowgy v. Oghore Nath Chatterjee, (1898) ILR 25 Cal 401in which the promissory note, though absolute in its terms, was said to be subject to an oral agreement, providing that it was not to be enforceable by suit until the happening of a particular event. Sale J., in rejecting this evidence, expressed his opinion that the proper meaning of Proviso (3) was that the contemporaneous oral agreement to be admissible must be to the effect that a written contract was to be of no force at all and was to constitute no obligation until the happening of a certain event. This description in their Lordships judgment applies to the present case To the same effect Page J., in Walter Mitchell v. A. K.52 Cal 677: (AIR 1925 Cal 1007 )held that the collateral agreement alleged in that case constituted a condition precedent to the attachment of any obligation under the cheques in question so that they remained inoperative until the condition was fulfilled." | 1 | 3,259 | 1,607 | ### Instruction:
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for accounts for the material period.6. We proceed to consider the next question involved in this case viz., whether the plaintiff is entitled to set up a parole agreement to prove the condition precedent as to the enforceability of the promissory note. The argument of the Solicitor-General on behalf of the Surat firm is that the plaintiff is precluded from setting up a parole agreement by reason of the provisions of S. 92 of the Evidence Act which states :"92. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:Proviso (1) ..................Proviso (2) ..................Proviso (3) The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved..................................................."It was submitted by the Solicitor-General that the High Court has found that there is an agreement between the parties that the promissory note should be discharged by commission payable by the Surat firm. It was contended that the agreement was with regard to the mode of discharge of the obligation of promissory note and not a condition precedent to its enforceability. It was therefore argued that the bar under S. 92 of the Evidence Act operates and the plaintiff was not entitled to adduce any evidence with regard to a parole agreement. The contention was that the promissory note represented in law an unconditional undertaking to pay an amount which the plaintiff was already under a liability to pay and it was not open to him in law to plead a contemporaneous oral agreement contrary to the terms of that undertaking. We are unable to accept the submission of the Solicitor-General as correct. The finding of the High Court is that there was a collateral oral agreement that the obligation under the promissory note will not be enforced for 5 years and unless the amount was due after accounting for the period of the commission agency. In our opinion, the agreement was not related to the mode of discharge of the obligation under the promissory note but that it was a condition precedent to the enforceability of the promissory note and it is open to the plaintiff to adduce evidence of oral agreement under the 3rd proviso to S. 92 of the Evidence Act. The view that we have taken is borne out by the decision of the Judicial Committee in Rowland Ady. v. Administrator-General of Burma, AIR 1938 PC 198 . In that case it was observed by the judicial Committee that it is necessary to distinguish a collateral agreement which alters the legal effect of the instrument from an agreement that the instrument should not be an effective instrument until some condition is fulfilled, or, to put it in another form, it is necessary to distinguish an agreement in defeasance of the contract from an agreement suspending the coming into force of the contract contained in the promissory note. It was therefore held by the Judicial Committee in that case that where the promissory note is, by its express terms, payable on demand, that is at once, the obligation under the note attaches immediately. A collateral oral agreement not to make demand until a certain specified condition is fulfilled has the intention and effect of suspending the coming into force of that obligation, which is the contract contained in the promissory note. Such an oral agreement constitutes a condition precedent to the attaching of the obligation and is within the terms of Proviso 3 of S. 92 of the Evidence Act. On the facts of that case the Judicial Committee held that by terms of the oral agreement no liability under the note could arise until the happening of an event and that being so, the case fell within the 3rd proviso to S. 92 of the Evidence Act. It was further made clear that unless the agreement had the effect of making the liability conditional upon the happening of an event, proof of an oral agreement at variance with the terms of the note would not be permitted. At page 202 of the Report, Lord Wright observed as follows:"A case like the present is to be distinguished from that dealt with in Ramjibun Serowgy v. Oghore Nath Chatterjee, (1898) ILR 25 Cal 401- in which the promissory note, though absolute in its terms, was said to be subject to an oral agreement, providing that it was not to be enforceable by suit until the happening of a particular event. Sale J., in rejecting this evidence, expressed his opinion that the proper meaning of Proviso (3) was that the contemporaneous oral agreement to be admissible must be to the effect that a written contract was to be of no force at all and was to constitute no obligation until the happening of a certain event. This description in their Lordships judgment applies to the present case To the same effect Page J., in Walter Mitchell v. A. K. Tennent-ILR 52 Cal 677: (AIR 1925 Cal 1007 ) - held that the collateral agreement alleged in that case constituted a condition precedent to the attachment of any obligation under the cheques in question so that they remained inoperative until the condition was fulfilled."In the present case also we are of opinion that the oral agreement found to have been proved by the High Court constituted a condition precedent to the attaching of the obligation under the promissory note and falls within the terms of the 3rd proviso to S 92 of the Evidence Act and it was therefore, open to the plaintiff to lead evidence and to prove such an oral agreement.
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of the Judicial Committee in Rowland Ady. v. Administrator-General of Burma, AIR 1938 PC 198 . In that case it was observed by the judicial Committee that it is necessary to distinguish a collateral agreement which alters the legal effect of the instrument from an agreement that the instrument should not be an effective instrument until some condition is fulfilled, or, to put it in another form, it is necessary to distinguish an agreement in defeasance of the contract from an agreement suspending the coming into force of the contract contained in the promissory note. It was therefore held by the Judicial Committee in that case that where the promissory note is, by its express terms, payable on demand, that is at once, the obligation under the note attaches immediately. A collateral oral agreement not to make demand until a certain specified condition is fulfilled has the intention and effect of suspending the coming into force of that obligation, which is the contract contained in the promissory note. Such an oral agreement constitutes a condition precedent to the attaching of the obligation and is within the terms of Proviso 3 of S. 92 of the Evidence Act. On the facts of that case the Judicial Committee held that by terms of the oral agreement no liability under the note could arise until the happening of an event and that being so, the case fell within the 3rd proviso to S. 92 of the Evidence Act. It was further made clear that unless the agreement had the effect of making the liability conditional upon the happening of an event, proof of an oral agreement at variance with the terms of the note would not bethe present case also we are of opinion that the oral agreement found to have been proved by the High Court constituted a condition precedent to the attaching of the obligation under the promissory note and falls within the terms of the 3rd proviso to S 92 of the Evidence Act and it was therefore, open to the plaintiff to lead evidence and to prove such an oral213 of the Indian contract Act specifically provides that an agent is bound to render proper accounts to his principal on demand. The principals right to sue an agent for rendition of accounts is, therefore, recognised by the statute. Butthe question is whether an agent can sue the principal for accounts.There is no such provision in the Indian Contractare unable to accept the submission of theas correct. Thefinding of the High Court is that there was a collateral oral agreement that the obligation under the promissory note will not be enforced for 5 years and unless the amount was due after accounting for the period of the commission agency. In our opinion, the agreement was not related to the mode of discharge of the obligation under the promissory note but that it was a condition precedent to the enforceability of the promissory note and it is open to the plaintiff to adduce evidence of oral agreement under the 3rd proviso to S. 92 of the Evidence Act. The view that we have taken is borne out by the decision of the Judicial Committee in Rowland Ady. v.of Burma, AIR 1938 PC 198 . In that case it was observed by the judicial Committee that it is necessary to distinguish a collateral agreement which alters the legal effect of the instrument from an agreement that the instrument should not be an effective instrument until some condition is fulfilled, or, to put it in another form, it is necessary to distinguish an agreement in defeasance of the contract from an agreement suspending the coming into force of the contract contained in the promissory note. It was therefore held by the Judicial Committee in that case that where the promissory note is, by its express terms, payable on demand, that is at once, the obligation under the note attaches immediately. A collateral oral agreement not to make demand until a certain specified condition is fulfilled has the intention and effect of suspending the coming into force of that obligation, which is the contract contained in the promissory note. Such an oral agreement constitutes a condition precedent to the attaching of the obligation and is within the terms of Proviso 3 of S. 92 of the Evidence Act. On the facts of that case the Judicial Committee held that by terms of the oral agreement no liability under the note could arise until the happening of an event and that being so, the case fell within the 3rd proviso to S. 92 of the Evidence Act. It was further made clear that unless the agreement had the effect of making the liability conditional upon the happening of an event, proof of an oral agreement at variance with the terms of the note would not bepermitted. At page 202 of the Report, Lord Wright observed ascase like the present is to be distinguished from that dealt with in Ramjibun Serowgy v. Oghore Nath Chatterjee, (1898) ILR 25 Cal 401in which the promissory note, though absolute in its terms, was said to be subject to an oral agreement, providing that it was not to be enforceable by suit until the happening of a particular event. Sale J., in rejecting this evidence, expressed his opinion that the proper meaning of Proviso (3) was that the contemporaneous oral agreement to be admissible must be to the effect that a written contract was to be of no force at all and was to constitute no obligation until the happening of a certain event. This description in their Lordships judgment applies to the present case To the same effect Page J., in Walter Mitchell v. A. K.52 Cal 677: (AIR 1925 Cal 1007 )held that the collateral agreement alleged in that case constituted a condition precedent to the attachment of any obligation under the cheques in question so that they remained inoperative until the condition was fulfilled."
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S. Satyanarayana Vs. Energo Masch Power Engineering & Consulting Pvt. Ltd. & Others | Companies Act. 7. Against the complaint, the following accused-namely A4 Company; its Directors A5 and A6; A9 the manager of the IREDA; and A10 the private person approached the High Court under Section 482 of the Cr.P.C.. The High Court took the view that the Special Judge could not have taken cognizance of the offences under Sections 120B and 420 of the IPC unless he could also try the accused under Section 621 of the Companies Act. As regards the accused Company A4 and its Directors A5 and A6, the High Court held that no cognizance could be taken against the said accused because the complainant did not belong to any of the categories or persons who were entitled to file a complaint under Section 621 of the Companies Act:i.e. to say the complainant was neither (a) the Registrar, (b) a shareholder of the company, or (c) a person authorized in that behalf. Thus, the High Court held that taking of cognizance by the Special Court in so far as accused nos. A4, A5 and A6 is without jurisdiction. This finding is sought to be supported by the provisions of Section 621(1) of the Companies Act. However, without giving any special reasons as regards accused Nos. A9 and A10 the High Court quashed the taking of cognizance. In fact A9 is the manager of IREDA a financing agency and A10 is a private person and are prima facie not a company or officers of a Company vide Section 621. The High Court has not committed any error in reading Section 621 of the Companies Act and observing an accused cannot be prosecuted under Section 621 of the Companies Act because the complainant is not a share holder in the accused Company. However, it is obvious from the complaint that there was no allegation that the accused Nos. A4, A5, A6 and A9 have committed an offence under Section 628 of the Companies Act. Such an allegation of commission of an offence under Section 628 of the Companies Act was only against the accused A10 (vide para 19 and 20 of the complaint). It may be recalled that the allegation as regards Section 628 of the Companies Act is said to have been committed by the accused A1 to A3 by making a false declaration with regard to the record that is maintained in accordance with Section 193 of the Companies Act by filing an extract of the Board resolution of the company before the Andhra Bank, Sowcarpet Branch, Chennai in order to open a bank account ‘the said Board resolution being a false declaration?, since a bank account in the said bank was already opened even before A1 had obtained consent of the complainant to open the said account and further since the said Board resolution is signed by Hari Sesha Reddy - A3 who was not even a Director in the company as on the date of the opening of the bank account. The offence alleged against A10 was that she had drawn huge amounts through self cheques in the capacity of the authorized signatory of the company. It is surprising to see that the High Court has quashed the complaint against the accused persons on the ground of legal defects though no allegation containing such defects were made against the said accused persons. 8. As can be seen from the complaint the allegations are that the accused conspired with each other to cheat the complainant and a series of transactions gave rise to offence under Section 120B read with Section 420 of the Indian Penal Code as also Section 628 of the Companies Act. It is, therefore, clear that if the Special Court has jurisdiction to try offences under both the aforesaid Acts then the trial can certainly continue in respect of the offences which do not require the complainant to belong to the categories specified under Section 621 of the Companies Act. Thus the trial could certainly continue against those accused under the IPC.9. The High Court completely overlooked the fact that the complaint made allegations against the accused A4, A5, A6, A9 and A10 only in respect of Section 120B and 420 of Indian Penal Code and there was no reason in law to quash a complaint against them on the ground that they were immune from prosecution under Section 628 of the Companies Act by virtue of Section 621 of that Act.10. We accordingly set aside the findings of the High Court that taking of cognizance against the accused A4, A5, A6 and A9 is without jurisdiction on the ground that the complaint does not make out a prima facie case for the offences under Section 628 of the Companies Act, 1956 against the said accused. At this stage, it may be noted that the Special Court is empowered to try the offences under the Companies Act alongwith other Acts by virtue of a notification issued by the erstwhile Government of Andhra Pradesh dated 13.3.1981 which empowers such special Courts to try offences under specified enactments such as The Companies Act, 1956, The Income-tax Act, 1961, The Wealth-tax Act, 1957 etc., which reads as follows:- ?even if such cases include offences punishable under the Indian Penal Code, 1860 and any other enactments, if such offences form part of the same transaction.? [vide Notification reproduced in Criminal Petition No.5846 of 2014 The Superintendent of Customs Vs. Kannur Abdul Kader Mohammed Haneefa reported in 2014 (310) ELT 49 (A.P.)]11. Thus, even if a number of persons are accused of offences under a special enactment such as ‘the Companies Act and as also the IPC? in respect of the same transaction or facts and even if some could not be tried under the special enactment, it is the special court alone which would have jurisdiction to try all the offences based on the same transaction to avoid multiplicity of proceedings. We make this observation because at some stage in the hearing learned counsels addressed us on this point. | 1[ds]8. As can be seen from the complaint the allegations are that the accused conspired with each other to cheat the complainant and a series of transactions gave rise to offence under Section 120B read with Section 420 of the Indian Penal Code as also Section 628 of the Companies Act. It is, therefore, clear that if the Special Court has jurisdiction to try offences under both the aforesaid Acts then the trial can certainly continue in respect of the offences which do not require the complainant to belong to the categories specified under Section 621 of the Companies Act. Thus the trial could certainly continue against those accused under the IPC.9. The High Court completely overlooked the fact that the complaint made allegations against the accused A4, A5, A6, A9 and A10 only in respect of Section 120B and 420 of Indian Penal Code and there was no reason in law to quash a complaint against them on the ground that they were immune from prosecution under Section 628 of the Companies Act by virtue of Section 621 of that Act.10. We accordingly set aside the findings of the High Court that taking of cognizance against the accused A4, A5, A6 and A9 is without jurisdiction on the ground that the complaint does not make out a prima facie case for the offences under Section 628 of the Companies Act, 1956 against the said accused. At this stage, it may be noted that the Special Court is empowered to try the offences under the Companies Act alongwith other Acts by virtue of a notification issued by the erstwhile Government of Andhra Pradesh dated 13.3.1981 which empowers such special Courts to try offences under specified enactments such as The Companies Act, 1956, TheAct, 1961, TheAct, 1957 etc., which reads asif such cases include offences punishable under the Indian Penal Code, 1860 and any other enactments, if such offences form part of the sameNotification reproduced in Criminal Petition No.5846 of 2014 The Superintendent of Customs Vs. Kannur Abdul Kader Mohammed Haneefa reported in 2014 (310) ELT 49 (A.P.)]11. Thus, even if a number of persons are accused of offences under a special enactment such as ‘the Companies Act and as also the IPC? in respect of the same transaction or facts and even if some could not be tried under the special enactment, it is the special court alone which would have jurisdiction to try all the offences based on the same transaction to avoid multiplicity of proceedings. We make this observation because at some stage in the hearing learned counsels addressed us on this point. | 1 | 1,988 | 475 | ### Instruction:
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Companies Act. 7. Against the complaint, the following accused-namely A4 Company; its Directors A5 and A6; A9 the manager of the IREDA; and A10 the private person approached the High Court under Section 482 of the Cr.P.C.. The High Court took the view that the Special Judge could not have taken cognizance of the offences under Sections 120B and 420 of the IPC unless he could also try the accused under Section 621 of the Companies Act. As regards the accused Company A4 and its Directors A5 and A6, the High Court held that no cognizance could be taken against the said accused because the complainant did not belong to any of the categories or persons who were entitled to file a complaint under Section 621 of the Companies Act:i.e. to say the complainant was neither (a) the Registrar, (b) a shareholder of the company, or (c) a person authorized in that behalf. Thus, the High Court held that taking of cognizance by the Special Court in so far as accused nos. A4, A5 and A6 is without jurisdiction. This finding is sought to be supported by the provisions of Section 621(1) of the Companies Act. However, without giving any special reasons as regards accused Nos. A9 and A10 the High Court quashed the taking of cognizance. In fact A9 is the manager of IREDA a financing agency and A10 is a private person and are prima facie not a company or officers of a Company vide Section 621. The High Court has not committed any error in reading Section 621 of the Companies Act and observing an accused cannot be prosecuted under Section 621 of the Companies Act because the complainant is not a share holder in the accused Company. However, it is obvious from the complaint that there was no allegation that the accused Nos. A4, A5, A6 and A9 have committed an offence under Section 628 of the Companies Act. Such an allegation of commission of an offence under Section 628 of the Companies Act was only against the accused A10 (vide para 19 and 20 of the complaint). It may be recalled that the allegation as regards Section 628 of the Companies Act is said to have been committed by the accused A1 to A3 by making a false declaration with regard to the record that is maintained in accordance with Section 193 of the Companies Act by filing an extract of the Board resolution of the company before the Andhra Bank, Sowcarpet Branch, Chennai in order to open a bank account ‘the said Board resolution being a false declaration?, since a bank account in the said bank was already opened even before A1 had obtained consent of the complainant to open the said account and further since the said Board resolution is signed by Hari Sesha Reddy - A3 who was not even a Director in the company as on the date of the opening of the bank account. The offence alleged against A10 was that she had drawn huge amounts through self cheques in the capacity of the authorized signatory of the company. It is surprising to see that the High Court has quashed the complaint against the accused persons on the ground of legal defects though no allegation containing such defects were made against the said accused persons. 8. As can be seen from the complaint the allegations are that the accused conspired with each other to cheat the complainant and a series of transactions gave rise to offence under Section 120B read with Section 420 of the Indian Penal Code as also Section 628 of the Companies Act. It is, therefore, clear that if the Special Court has jurisdiction to try offences under both the aforesaid Acts then the trial can certainly continue in respect of the offences which do not require the complainant to belong to the categories specified under Section 621 of the Companies Act. Thus the trial could certainly continue against those accused under the IPC.9. The High Court completely overlooked the fact that the complaint made allegations against the accused A4, A5, A6, A9 and A10 only in respect of Section 120B and 420 of Indian Penal Code and there was no reason in law to quash a complaint against them on the ground that they were immune from prosecution under Section 628 of the Companies Act by virtue of Section 621 of that Act.10. We accordingly set aside the findings of the High Court that taking of cognizance against the accused A4, A5, A6 and A9 is without jurisdiction on the ground that the complaint does not make out a prima facie case for the offences under Section 628 of the Companies Act, 1956 against the said accused. At this stage, it may be noted that the Special Court is empowered to try the offences under the Companies Act alongwith other Acts by virtue of a notification issued by the erstwhile Government of Andhra Pradesh dated 13.3.1981 which empowers such special Courts to try offences under specified enactments such as The Companies Act, 1956, The Income-tax Act, 1961, The Wealth-tax Act, 1957 etc., which reads as follows:- ?even if such cases include offences punishable under the Indian Penal Code, 1860 and any other enactments, if such offences form part of the same transaction.? [vide Notification reproduced in Criminal Petition No.5846 of 2014 The Superintendent of Customs Vs. Kannur Abdul Kader Mohammed Haneefa reported in 2014 (310) ELT 49 (A.P.)]11. Thus, even if a number of persons are accused of offences under a special enactment such as ‘the Companies Act and as also the IPC? in respect of the same transaction or facts and even if some could not be tried under the special enactment, it is the special court alone which would have jurisdiction to try all the offences based on the same transaction to avoid multiplicity of proceedings. We make this observation because at some stage in the hearing learned counsels addressed us on this point.
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8. As can be seen from the complaint the allegations are that the accused conspired with each other to cheat the complainant and a series of transactions gave rise to offence under Section 120B read with Section 420 of the Indian Penal Code as also Section 628 of the Companies Act. It is, therefore, clear that if the Special Court has jurisdiction to try offences under both the aforesaid Acts then the trial can certainly continue in respect of the offences which do not require the complainant to belong to the categories specified under Section 621 of the Companies Act. Thus the trial could certainly continue against those accused under the IPC.9. The High Court completely overlooked the fact that the complaint made allegations against the accused A4, A5, A6, A9 and A10 only in respect of Section 120B and 420 of Indian Penal Code and there was no reason in law to quash a complaint against them on the ground that they were immune from prosecution under Section 628 of the Companies Act by virtue of Section 621 of that Act.10. We accordingly set aside the findings of the High Court that taking of cognizance against the accused A4, A5, A6 and A9 is without jurisdiction on the ground that the complaint does not make out a prima facie case for the offences under Section 628 of the Companies Act, 1956 against the said accused. At this stage, it may be noted that the Special Court is empowered to try the offences under the Companies Act alongwith other Acts by virtue of a notification issued by the erstwhile Government of Andhra Pradesh dated 13.3.1981 which empowers such special Courts to try offences under specified enactments such as The Companies Act, 1956, TheAct, 1961, TheAct, 1957 etc., which reads asif such cases include offences punishable under the Indian Penal Code, 1860 and any other enactments, if such offences form part of the sameNotification reproduced in Criminal Petition No.5846 of 2014 The Superintendent of Customs Vs. Kannur Abdul Kader Mohammed Haneefa reported in 2014 (310) ELT 49 (A.P.)]11. Thus, even if a number of persons are accused of offences under a special enactment such as ‘the Companies Act and as also the IPC? in respect of the same transaction or facts and even if some could not be tried under the special enactment, it is the special court alone which would have jurisdiction to try all the offences based on the same transaction to avoid multiplicity of proceedings. We make this observation because at some stage in the hearing learned counsels addressed us on this point.
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The East And West Steamship Company,George Town, Madras Vs. S. K. Ramalingam Chettiar.(And Connected Appeal) | the contract that delivery is to commence as soon as possible after the arrival of ship at port and completed before the ship leaves the port. Indeed even if there were no definite terms in the bill of lading as regards the delivery it would follows necessarily from the very nature of the carriage of goods by ship that the delivery of the cargo carried by the ship should be made between the date of the arrival at the port and its departure from the port. For our present purpose it is unnecessary to consider whether delivery to the dock authority in any of these cases was or would have been equivalent to the delivery to the consignee. That would depend upon the custom of the port of discharge or on statutory provisions or express stipulations in the bill of lading.But whether the delivery is to be made to the consignee or to anybody else on his behalf the duty of the ships master is to start the delivery as soon as possible after the ships arrival at the port and to complete it before the date of departure from the port. Before the ship had actually left the port it is not possible to say that the time when delivery should be made has expired. Once however the vessel has left the port it cannot but be common ground between the carrier and the consignee that the time when delivery should have been made in over. It is this point of time, viz., the time when the ship leaves the port, which in our opinion should be taken as the time when the delivery should have been made. The fact that after this point of time correspondence started between the carrier and the consignee as regards the failure to deliver and at a later point of time the carrier communicates his inability to deliver cannot affect this question. Nor can the ultimate repudiation of any claim that may be made by the shipper or the consignee affect the ascertainment of the date when the goods should have been delivered. The arrival at port of the vessel by which the goods have been contracted to be carried being known and the departure being equally an ascertainable thing and the duty of the carrier being necessarily to complete the delivery before leaving the port, the date by which the delivery should have been made is already a fixed point of time and later correspondence, claims or repudiation thereof an in no way change it.29. We have therefore come to the conclusion that whatever be the proper mode of ascertaining the date when delivery "ought to be made" under Art. 31 of the Limitation Act - whether that be the reasonable time for delivery in the circumstances of the case or the date when after correspondence the carrier intimates its inability to deliver or the date of the final repudiation of the claim on a claim for compensation having been made or in the case of part delivery the date when the bulk of the consignment was delivered - the date when the goods should have been delivered for the purpose of the Third Clause of the 6th paragraph of Art. III of the Act is the date when the ship by which the goods were contracted to be carried has left the port at which delivery was to be made.30. Applying the above clause to the facts of the cases before us it is obvious that these suits for compensation were not maintainable. It is hardly necessary therefore to consider the additional defence raised in all the three suits by the Shipping companies, viz., that the claim for compensation not having been made within thirty days from the date of arrival of the vessel in accordance with the terms of the bill of lading no compensation is payable. The learned Judges of the Bombay High Court did not think it necessary to consider this additional defence as they accepted the defence based on the third clause of the 6th paragraph of Art. III which has been discussed above.The learned Judge in the Madras High Court had however to consider this additional defence in view of his conclusions against the shipping company on the other defence. He held that the stipulation in the bill of lading that if no claim for compensation is made within thirty days from the date of arrival of the ship the shipping company will not be liable for compensation is void as it offends against para. 8 of Art. III. The relevant portion of this paragraph is in these words:"8. Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect."31. It cannot be seriously disputed that the stipulation under consideration does directly offend against the provisions of the 8th paragraph. For it seeks at least to "lessen", otherwise than provided in the rules in the Schedule the liability of the ship or carrier for loss of damage to goods or in connection with goods caused by the failure to deliver. This stipulation requiring claim for compensation being made within one month from the date of arrival of the ship is therefore null and void.32. Though the additional defence raised by the shipping companies must therefore fail, the main defence, as we have already found, succeeds. None of the suits were brought within a year from the date when the ship carrying the goods left the port of discharge. We therefore dismiss with costs the Civil Appeals Nos. 91 and 92 of 1958 and confirm the order of dismissal made by the Bombay High Court. One set of hearing costs will have to be paid. | 0[ds]18. It is worth noting in this connection that while paragraph 5 makes it clear that loss there means loss to the carrier and paragraph 8 speaks of loss or damage to or in connection with the goods, the Legislature has in the 6th paragraph of this Article left the words "loss or damage" unqualified. The object of the rule however being to give immunity to the carriers and the shippers from claims of compensation made by the owners of the goods in respect of loss sustained by them it will be unreasonable to read the word "loss" in that paragraph as restricted to only loss "of the goods". When the object of this particular paragraph and the setting of this paragraph in the Article after the previous paragraphs are considered there remains no doubt whatsoever that the learned judges of the Bombay High Court were right in their conclusion that the loss or damage in this paragraph is a wide expression used by the Legislature to include any loss or damage caused to shipper or consignee in respect of which he makes a grievance and in respect of which he claims compensation from the shipping company.19. The argument that loss due to failure to deliver the goods is not covered by this clause is merely to be mentioned to deserve rejection. The very use of the words "the date on which the goods should have been delivered" clearly contemplates a case where the goods have not been delivered. The clause gives the owner of the goods one years time to bring the suitthe year to be calculated from the date of the delivery of the goods where the goods have been delivered and from the date when the goods should have been delivered where all or some of the goods have not been delivered. The fact that the first clause of the 6th paragraph speaks of removal of the goods may be an argument for thinking as the Bombay High Court thought that that clause has no application when goods are notmay be mentioned that some authorities (See Carvers Carriage of Goods by Sea, 10th Edn., p. 191) have suggested that the first clause of this paragraph appears to have little meaning. That is a matter which need not engage our attention. It is sufficient to mention that the fact that the rule of evidence provided in the first clause of the paragraph may have no application to cases tois wholly irrelevant in deciding whether the third clause applies to cases ofAs we have already said the date when the goods should have been delivered necessarily contemplates a case where loss has arisen because goods have not been delivered.This case it has to be noticed had to consider in view of the special terms of an insurance policy, whether there was a total or partial loss for the purposes of claims under the policy and the argument that there was a total loss within the meaning of the policy because it was impossible for theto deliver the plaintiffs own bales of cotton to them was rejected. This case is of no assistance in the interpretation of the word "loss" in the Articles of the Schedule.23. There is nothing however to justify the conclusion that the consignee is bound to avail himself of the right to claim as tenant in common. The breach of contract remains and the claim for compensation for such breach is in no way affected. Neither authority nor principle therefore supports the contention of the learnedthat where the goods are in existence but cannot be delivered because they have been mixed up with the cargo of other owners there has been no "loss" within the meaning of the third clause of the 6th paragraph of Art. III.24. On the first question, therefore we have come to the conclusion that the word "loss" in the third clause of the 6th paragraph of Art. III to the Act means and includes any loss caused to a shipper or a consignee by reason of the inability of the ship or the carrier to deliver part or whole of the goods, to whatever reason such failure may befind it difficult to draw any reasonable distinction between the words "absolved from liability" and "discharged from liability" and think that these words "discharged from liability" were intended to mean and do mean that the liability has totally disappeared and not only that the remedy as regards the liability has disappeared. We are unable to agree with the learned Judge of the Madras High Court that these words merely mean that "that eve though the right may inhere in the person who is entitled to the benefits, still the liability in the opposite party is discharged by the impossibility of enforcement." The distinction between the extinction of a right and the extinction of a remedy for the enforcement of that right, though fine, is of great importance. The Legislature could not but have been conscious of this distinction when using the words "discharged from all liability" in an Article purporting to prescribe rights and immunities of the shipowners.The words are apt to express an intention of total extinction of the liability and should, specially in view of the international character of the legislation, be construed in that sense. It is hardly necessary to add that once the liability is extinguished under this clause, there is no scope of any acknowledgement of liability thereafter.On the next question whether this clause prescribes only a rule of limitation or provides for the extinction of a right to compensation, it will be observed that the Bombay High Court has not discussed it at all, apparently because on the facts of the case before it, it would have mattered little whether the provision was one of limitation or of extinction of right. The question is however of some importance in the facts of the Madras case. For if the provision is one of limitation there would be some scope for argument in the facts of that case that the period was extended by acknowledgments of liability within the meaning of Art. 19 of the Limitation Act. Thewe have to decide is whether in saying that the ship or the carrier will be "discharged from liability", only the remedy of the shipper or the consignee was being barred or the right was also beingIt is useful to remember in this connection the international character of these rules, as has been already emphasised above. Rules of limitation are likely to vary from country to country. Provisions for extension of periods prescribed for limitation would similarly vary.We should be slow therefore to put on the word "discharged from liability" as interpretation which would produce results varying in different countries and thus keeping the position uncertain both the shipper and theQuite apart from this consideration, however, we think that the ordinary grammatical sense of "discharged from liability" does not connote "free from the remedy as regards liability" but are more apt to mean a total extinction of the liability following upon an extinction of the right.Wefind it difficult to draw any reasonable distinction between the words "absolved from liability" and "discharged from liability" and think that these words "discharged from liability" were intended to mean and do mean that the liability has totally disappeared and not only that the remedy as regards the liability has disappeared. We are unable to agree with the learned Judge of the Madras High Court that these words merely mean that "that eve though the right may inhere in the person who is entitled to the benefits, still the liability in the opposite party is discharged by the impossibility of enforcement." The distinction between the extinction of a right and the extinction of a remedy for the enforcement of that right, though fine, is of great importance. The Legislature could not but have been conscious of this distinction when using the words "discharged from all liability" in an Article purporting to prescribe rights and immunities of the shipowners.The words are apt to express an intention of total extinction of the liability and should, specially in view of the international character of the legislation, be construed in that sense. It is hardly necessary to add that once the liability is extinguished under this clause, there is no scope of any acknowledgement of liability thereafter.s brings us to the question as to how the date "when the goods should have been delivered" should becalculated. References were made at the Bar to some of the numerous decisions in the different courts in India as regards the interpretation of somewhat similar words in Art. 31 of the Limitation Act in respect of suits for recovery of compensation forIndeed the learned Judge in the Madras High Court himself has based his conclusion on this question on the view of law he had earlier expressed as regards Art. 31 of the Limitation Act that the starting point of limitation there is the final repudiation of the liability by the company. With great respect to the learned Judge we are of opinion that the cases as regards the ascertainment of the date when the goods "ought to be delivered" as used in Art. 31 of the Limitation Act are of no assistance for our present purpose. Most, if not all of the cases which have considered the question of the ascertainment of the date when the goods "ought to be delivered" for the purpose of Art. 31 deal with cases of transport by Railways where no date has been or can be specified in the contract for carriage. We cannot however ignore the fact that the conditions of carriage of goods by ship are essentially different from contracts of carriage of goods by Railway in one respect, viz., that whereas in contracts of carriage of goods by Railways there is ordinarily no knowledge as to by which particular train the goods will be despatched nor is there any undertaking by the Railways as regards such trains, there is ordinarily in contracts of carriage of goods by sea a distinct arrangement that the goods will be shipped by a particular vessel.In these appeals we are not concerned with the facts of these terms of delivery of contract except that they show that it is clearly understood between the parties to the contract that delivery is to commence as soon as possible after the arrival of ship at port and completed before the ship leaves the port. Indeed even if there were no definite terms in the bill of lading as regards the delivery it would follows necessarily from the very nature of the carriage of goods by ship that the delivery of the cargo carried by the ship should be made between the date of the arrival at the port and its departure from the port. For our present purpose it is unnecessary to consider whether delivery to the dock authority in any of these cases was or would have been equivalent to the delivery to the consignee. That would depend upon the custom of the port of discharge or on statutory provisions or express stipulations in the bill of lading.But whether the delivery is to be made to the consignee or to anybody else on his behalf the duty of the ships master is to start the delivery as soon as possible after the ships arrival at the port and to complete it before the date of departure from the port. Before the ship had actually left the port it is not possible to say that the time when delivery should be made has expired. Once however the vessel has left the port it cannot but be common ground between the carrier and the consignee that the time when delivery should have been made in over. It is this point of time, viz., the time when the ship leaves the port, which in our opinion should be taken as the time when the delivery should have been made. The fact that after this point of time correspondence started between the carrier and the consignee as regards the failure to deliver and at a later point of time the carrier communicates his inability to deliver cannot affect this question. Nor can the ultimate repudiation of any claim that may be made by the shipper or the consignee affect the ascertainment of the date when the goods should have been delivered. The arrival at port of the vessel by which the goods have been contracted to be carried being known and the departure being equally an ascertainable thing and the duty of the carrier being necessarily to complete the delivery before leaving the port, the date by which the delivery should have been made is already a fixed point of time and later correspondence, claims or repudiation thereof an in no way change it.29. We have therefore come to the conclusion that whatever be the proper mode of ascertaining the date when delivery "ought to be made" under Art. 31 of the Limitation Actwhether that be the reasonable time for delivery in the circumstances of the case or the date when after correspondence the carrier intimates its inability to deliver or the date of the final repudiation of the claim on a claim for compensation having been made or in the case of part delivery the date when the bulk of the consignment was deliveredthe date when the goods should have been delivered for the purpose of the Third Clause of the 6th paragraph of Art. III of the Act is the date when the ship by which the goods were contracted to be carried has left the port at which delivery was to be made.30. Applying the above clause to the facts of the cases before us it is obvious that these suits for compensation were not maintainable. It is hardly necessary therefore to consider the additional defence raised in all the three suits by the Shipping companies, viz., that the claim for compensation not having been made within thirty days from the date of arrival of the vessel in accordance with the terms of the bill of lading no compensation is payable. The learned Judges of the Bombay High Court did not think it necessary to consider this additional defence as they accepted the defence based on the third clause of the 6th paragraph of Art. III which has been discussed above.The learned Judge in the Madras High Court had however to consider this additional defence in view of his conclusions against the shipping company on the other defence. He held that the stipulation in the bill of lading that if no claim for compensation is made within thirty days from the date of arrival of the ship the shipping company will not be liable for compensation is void as it offends against para. 8 of Art. III.It cannot be seriously disputed that the stipulation under consideration does directly offend against the provisions of the 8th paragraph. For it seeks at least to "lessen", otherwise than provided in the rules in the Schedule the liability of the ship or carrier for loss of damage to goods or in connection with goods caused by the failure to deliver. This stipulation requiring claim for compensation being made within one month from the date of arrival of the ship is therefore null and void.32. Though the additional defence raised by the shipping companies must therefore fail, the main defence, as we have already found, succeeds. None of the suits were brought within a year from the date when the ship carrying the goods left the port of discharge. We therefore dismiss with costs the Civil Appeals Nos. 91 and 92 of 1958 and confirm the order of dismissal made by the Bombay High Court. One set of hearing costs will have to be paid. | 0 | 8,166 | 2,815 | ### 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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the contract that delivery is to commence as soon as possible after the arrival of ship at port and completed before the ship leaves the port. Indeed even if there were no definite terms in the bill of lading as regards the delivery it would follows necessarily from the very nature of the carriage of goods by ship that the delivery of the cargo carried by the ship should be made between the date of the arrival at the port and its departure from the port. For our present purpose it is unnecessary to consider whether delivery to the dock authority in any of these cases was or would have been equivalent to the delivery to the consignee. That would depend upon the custom of the port of discharge or on statutory provisions or express stipulations in the bill of lading.But whether the delivery is to be made to the consignee or to anybody else on his behalf the duty of the ships master is to start the delivery as soon as possible after the ships arrival at the port and to complete it before the date of departure from the port. Before the ship had actually left the port it is not possible to say that the time when delivery should be made has expired. Once however the vessel has left the port it cannot but be common ground between the carrier and the consignee that the time when delivery should have been made in over. It is this point of time, viz., the time when the ship leaves the port, which in our opinion should be taken as the time when the delivery should have been made. The fact that after this point of time correspondence started between the carrier and the consignee as regards the failure to deliver and at a later point of time the carrier communicates his inability to deliver cannot affect this question. Nor can the ultimate repudiation of any claim that may be made by the shipper or the consignee affect the ascertainment of the date when the goods should have been delivered. The arrival at port of the vessel by which the goods have been contracted to be carried being known and the departure being equally an ascertainable thing and the duty of the carrier being necessarily to complete the delivery before leaving the port, the date by which the delivery should have been made is already a fixed point of time and later correspondence, claims or repudiation thereof an in no way change it.29. We have therefore come to the conclusion that whatever be the proper mode of ascertaining the date when delivery "ought to be made" under Art. 31 of the Limitation Act - whether that be the reasonable time for delivery in the circumstances of the case or the date when after correspondence the carrier intimates its inability to deliver or the date of the final repudiation of the claim on a claim for compensation having been made or in the case of part delivery the date when the bulk of the consignment was delivered - the date when the goods should have been delivered for the purpose of the Third Clause of the 6th paragraph of Art. III of the Act is the date when the ship by which the goods were contracted to be carried has left the port at which delivery was to be made.30. Applying the above clause to the facts of the cases before us it is obvious that these suits for compensation were not maintainable. It is hardly necessary therefore to consider the additional defence raised in all the three suits by the Shipping companies, viz., that the claim for compensation not having been made within thirty days from the date of arrival of the vessel in accordance with the terms of the bill of lading no compensation is payable. The learned Judges of the Bombay High Court did not think it necessary to consider this additional defence as they accepted the defence based on the third clause of the 6th paragraph of Art. III which has been discussed above.The learned Judge in the Madras High Court had however to consider this additional defence in view of his conclusions against the shipping company on the other defence. He held that the stipulation in the bill of lading that if no claim for compensation is made within thirty days from the date of arrival of the ship the shipping company will not be liable for compensation is void as it offends against para. 8 of Art. III. The relevant portion of this paragraph is in these words:"8. Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect."31. It cannot be seriously disputed that the stipulation under consideration does directly offend against the provisions of the 8th paragraph. For it seeks at least to "lessen", otherwise than provided in the rules in the Schedule the liability of the ship or carrier for loss of damage to goods or in connection with goods caused by the failure to deliver. This stipulation requiring claim for compensation being made within one month from the date of arrival of the ship is therefore null and void.32. Though the additional defence raised by the shipping companies must therefore fail, the main defence, as we have already found, succeeds. None of the suits were brought within a year from the date when the ship carrying the goods left the port of discharge. We therefore dismiss with costs the Civil Appeals Nos. 91 and 92 of 1958 and confirm the order of dismissal made by the Bombay High Court. One set of hearing costs will have to be paid.
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no knowledge as to by which particular train the goods will be despatched nor is there any undertaking by the Railways as regards such trains, there is ordinarily in contracts of carriage of goods by sea a distinct arrangement that the goods will be shipped by a particular vessel.In these appeals we are not concerned with the facts of these terms of delivery of contract except that they show that it is clearly understood between the parties to the contract that delivery is to commence as soon as possible after the arrival of ship at port and completed before the ship leaves the port. Indeed even if there were no definite terms in the bill of lading as regards the delivery it would follows necessarily from the very nature of the carriage of goods by ship that the delivery of the cargo carried by the ship should be made between the date of the arrival at the port and its departure from the port. For our present purpose it is unnecessary to consider whether delivery to the dock authority in any of these cases was or would have been equivalent to the delivery to the consignee. That would depend upon the custom of the port of discharge or on statutory provisions or express stipulations in the bill of lading.But whether the delivery is to be made to the consignee or to anybody else on his behalf the duty of the ships master is to start the delivery as soon as possible after the ships arrival at the port and to complete it before the date of departure from the port. Before the ship had actually left the port it is not possible to say that the time when delivery should be made has expired. Once however the vessel has left the port it cannot but be common ground between the carrier and the consignee that the time when delivery should have been made in over. It is this point of time, viz., the time when the ship leaves the port, which in our opinion should be taken as the time when the delivery should have been made. The fact that after this point of time correspondence started between the carrier and the consignee as regards the failure to deliver and at a later point of time the carrier communicates his inability to deliver cannot affect this question. Nor can the ultimate repudiation of any claim that may be made by the shipper or the consignee affect the ascertainment of the date when the goods should have been delivered. The arrival at port of the vessel by which the goods have been contracted to be carried being known and the departure being equally an ascertainable thing and the duty of the carrier being necessarily to complete the delivery before leaving the port, the date by which the delivery should have been made is already a fixed point of time and later correspondence, claims or repudiation thereof an in no way change it.29. We have therefore come to the conclusion that whatever be the proper mode of ascertaining the date when delivery "ought to be made" under Art. 31 of the Limitation Actwhether that be the reasonable time for delivery in the circumstances of the case or the date when after correspondence the carrier intimates its inability to deliver or the date of the final repudiation of the claim on a claim for compensation having been made or in the case of part delivery the date when the bulk of the consignment was deliveredthe date when the goods should have been delivered for the purpose of the Third Clause of the 6th paragraph of Art. III of the Act is the date when the ship by which the goods were contracted to be carried has left the port at which delivery was to be made.30. Applying the above clause to the facts of the cases before us it is obvious that these suits for compensation were not maintainable. It is hardly necessary therefore to consider the additional defence raised in all the three suits by the Shipping companies, viz., that the claim for compensation not having been made within thirty days from the date of arrival of the vessel in accordance with the terms of the bill of lading no compensation is payable. The learned Judges of the Bombay High Court did not think it necessary to consider this additional defence as they accepted the defence based on the third clause of the 6th paragraph of Art. III which has been discussed above.The learned Judge in the Madras High Court had however to consider this additional defence in view of his conclusions against the shipping company on the other defence. He held that the stipulation in the bill of lading that if no claim for compensation is made within thirty days from the date of arrival of the ship the shipping company will not be liable for compensation is void as it offends against para. 8 of Art. III.It cannot be seriously disputed that the stipulation under consideration does directly offend against the provisions of the 8th paragraph. For it seeks at least to "lessen", otherwise than provided in the rules in the Schedule the liability of the ship or carrier for loss of damage to goods or in connection with goods caused by the failure to deliver. This stipulation requiring claim for compensation being made within one month from the date of arrival of the ship is therefore null and void.32. Though the additional defence raised by the shipping companies must therefore fail, the main defence, as we have already found, succeeds. None of the suits were brought within a year from the date when the ship carrying the goods left the port of discharge. We therefore dismiss with costs the Civil Appeals Nos. 91 and 92 of 1958 and confirm the order of dismissal made by the Bombay High Court. One set of hearing costs will have to be paid.
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Subramania Gurukkal (Dead) Through Muthusubramanis Gurukkal & Others Vs. Shri Patteswaraswami Devasthanam, Perur By Its Executive Officer & Others | those in Ex. P-52. The final order of the Inam Commissioner was also in terms similar, and was confirmed to the fakirs the Sadavarti charity according to the grant, free, three being no excess. It is interesting to note that in column 2 (general class to which inam belongs) is noted Devadayam, i.e., dedicated to God; that in column 8 meant for the description of the inam is noted : for the support of Pagoda of Sri Jagannadhaswami in Bondilipuram, and that the entry in column 11 indicates that Anavaruddin Khan Bahadur made the grant in Hijiri 1171 corresponding to 1754-55 A.D. It is clear that the note about the land being dedicated to God is wrong in view of the definite statement that the Sanad mentioned that the inam was given for the support of fakirs to the original grantee (Mandasa Palahari Bairagi in Column 13) about a century ago and that it were the trustees of the institution who constructed the temple. When the temple was constructed by the trustees of the institution, viz., the Sadavarti institution, the original grant could not have been to the temple or to God. The entries in this extract confirm the construction we have placed on similar entries in Ex. P-52 and other extracts indicating the grant to the temple." * 44. As rightly pointed out by the High Court even the title deeds issued in favour of the service holders described the character of the property as Devadayam; this entry read in light of the Ex. B-1, the genuineness of which was never challenged, lends great support to the arguments addressed on behalf of the Devasthanam. This decision has also been referred to in Shri Vallabharaya ( 1979 (3) SCC 778 : 1979 AIR(SC) 1147), wherein the following observations are found : (SCC p. 778, para 2). "Column 1 of the Inam Fair Register describes the class of inam as Devadayam. But as observed in Venkayya v. Sriramamurthy 1957 AIR(AP) 53), this description by itself cannot be determinative of the question since it only denotes that the endowment is of a religious character which will include a service inam attached to a temple." * 45. Sami Ayyangar 1934 AIR(Mad) 381) observed at page 381 as under : "The use of the word Devadayam does not necessarily import that the grant was made to the temple, ...." 46. Coming to the entries in column 10, the Inam Fair Register states permanent so long as it is continued. The description in column 10 referring to the inam as permanent instead of hereditary is more consistent with the inam, being a service inam, rather than a personal grant burdened with service. Reliance is placed by Mr Padmanabham on Shri Vallabharaya Swami Varu 1957 AIR(AP) 53) but it has to be observed in that case that column 10 of the Register shows that the grant was hereditary. On the contrary the case Buddu Satyanarayana 1953 SCR 1001 : 1953 AIR(SC) 195) relied upon by Mr. K. Parasaran is apt in this case. It observed at page 1004 as under : "The copy of the statement filed by the then Archakas before the Inam Deputy Collector was exhibited in this case as Ex. D/3. In the Inam Register (Ex. P/3) under the several columns grouped under the general heading "Class extent and value of Inam" this Inam is classified in column 2 as Devadayam. In column 3 are set out the survey numbers together with the word Dry indicating the nature of the land comprised within the survey numbers. The areas are set out in column 5. The heading of column 7 is where no survey has been made and no assessment fixed by Government, the cess paid by the ryot to the Inamdar, or the average assessment of similar Government land should be entered in column (7). Under this heading are set out the amounts of respective assessments against the three survey numbers totalling Rs. 198-13-9. We then pass on the next group of columns under the general heading Description, tenure and documents in support of the Inam. Under column 8 description of Inam is entered the remark For the support of a Pagoda. Now kept up. The entry in column 9 shows that the Inam was free of tax, i.e., Sarvadumbala. Under column 10 headed Hereditary, unconditional for life only or for two or more lives is mentioned Permanent. The name of the grantor as stated in column 11 is Janganna Rao and the year of grant is fasli 1179, A.D. 1770. In column 13 the name of the temple is set out as the original grantee. The name of the temple and the location of the temple are also set out under columns 16 and 17. Turning now to the statement Ex. D/3 caused to be written and filed by the then Archakas during the Inam Inquiry held in 1859-60. Sree Somasekharaswami Varu is given as the name of the Inamdar and the present enjoyer. The name of the temple is also set out under columns 3, 5, 6 and 12. Under the heading Income derived from the Inam - whether it is sarvadumbala or jodi. If jodi the amount in column 13 is stated sarvadumbala Inam. Cist according to the rate prevailing in the neighbouring fields - Rs. 266-3-1. This statement (Ex. D/3) bears the signature of the Karnams and the witnesses. It will be noticed that neither in the Inam Register Ex. P/3 nor in the statement Ex. D/3 is there any mention of the Archakas as the grantee or for the matter of that, having any the least interest, personal or otherwise, in the subject-matter of the Inam grant. The two exhibits quite clearly indicate that the Inam grant was made in favour of the temple by the grantor and that in the face of this definite evidence and proof of the nature of the grant, no presumption of a lost grant can be made in favour of the Archakas. | 1[ds]31. This is a case in which the grant consists of both the varams. In other words it is an iruvaram grant. Therefore, it has to be decided whether the original inam grant was made by the previous sovereigns to the Devasthanam for its support or to the Oozhiamdars on condition of their rendering service to the Devasthanam. The question could have been easily answered if the original title deed was forthcoming. But unfortunately in this case the original title deed is lost. It was this which influenced the Tribunal when it commented upon theof the original title deed by the Devasthanam and made the Tribunal draw an adverse inference. But the High Court took the view that even in the absence of the original title deeds, the nature of the grant could be decided by looking into the evidence with regard to the terms of the grant itself and the evidence relating to possession and enjoyment by the service holders. But such possession and enjoyment would be evidence of grant only in the absence of any reliable or cogent evidence with regard to the terms of grant itself. As a matter of fact, in several cases even in the absence of original grant the other evidence was looked into for deciding the nature of grant (vide Narayanamurthy v. Acharyya Sastrulu 47 MLJ 714) or Buddu Satyanarayana v. Konduru Venkatapaiah 1950 AIR(Mad) 586), which was appealed against to this Court in Buddu Satyanarayana v. Konduru Venkatapayya 1953 SCR 1001 : 1953 AIR(SC) 195)). While Mr. Padmanabhan contends that in the absence of the original title deeds the entries in the Inam Fair Register must govern, Mr. K. Prasaran in opposition would urge that such entries alone cannot be held to be conclusive because there is more valuable evidence in this case like Ex.3; and the previous proceedings of the courts like Ex.etc. We will examine the correctness of these arguments before we come to the entries in Inam Fair Register.32. Ex.is dated July 14, 1802 which is a certified copy of the Sanad given to Perur Devasthanam. The salient features of Ex.are : (a) it indicates that the lands in Perur village from the manyam of the temple from a long time; (b) it lists out the oozhiams to which the lands were assigned; (c) it was stated that as the possession in the land was taken over by those doing service there need not be further cultivation by the sarkar kudigal; (d) it mentions that any alienation will be illegal; (e) it further mentions "without any defect in the service, the possession shall be made". This should obviously mean, in our opinion, so long as the service was rendered the land will continue to be in possession of those rendering service; (f) with reference to each oozhiam the word isum is mentioned which means permanent; (g) should there be any alienation by the particular service holder the land was liable to be resumed.33. Though the High Court placed reliance on these documents the Tribunal was of the view that the word Sanad used in these documents could convey no legal implication. It was just an order of the Collector or a circular passed on to the Tehsildar. We do not think this approach of the Tribunal is correct since this is only a supporting document on behalf of the Devasthanam to decide the nature of the grant.34. Then we come to Ex.which came to be marked in the High Court by the consent of the parties. This is dated January 8, 1864. That clearly spells out that it was a title deed granted to the manager for the time being of the Pagoda of Shri Patteswaraswami. It unmistakably says that the Secretary of the State for India in Council, acknowledges the title deed to a Devadayam or Pagoda Inam. The date of original settlement is January 8, 1864 and it was renewed on February 22, 1900.Coming to the entries in column 10, the Inam Fair Register states permanent so long as it is continued. The description in column 10 referring to the inam as permanent instead of hereditary is more consistent with the inam, being a service inam, rather than a personal grant burdened with service. Reliance is placed by Mr Padmanabham on Shri Vallabharaya Swami Varu 1957 AIR(AP) 53) but it has to be observed in that case that column 10 of the Register shows that the grant was hereditary. On the contrary the case Buddu Satyanarayana 1953 SCR 1001 : 1953 AIR(SC) 195) relied upon by Mr. K. Parasaran is apt in this case. It observed at page 1004 as undercopy of the statement filed by the then Archakas before the Inam Deputy Collector was exhibited in this case as Ex. D/3. In the Inam Register (Ex. P/3) under the several columns grouped under the general heading "Class extent and value of Inam" this Inam is classified in column 2 as Devadayam. In column 3 are set out the survey numbers together with the word Dry indicating the nature of the land comprised within the survey numbers. The areas are set out in column 5. The heading of column 7 is where no survey has been made and no assessment fixed by Government, the cess paid by the ryot to the Inamdar, or the average assessment of similar Government land should be entered in column (7). Under this heading are set out the amounts of respective assessments against the three survey numbers totalling Rs.We then pass on the next group of columns under the general heading Description, tenure and documents in support of the Inam. Under column 8 description of Inam is entered the remark For the support of a Pagoda. Now kept up. The entry in column 9 shows that the Inam was free of tax, i.e., Sarvadumbala. Under column 10 headed Hereditary, unconditional for life only or for two or more lives is mentioned Permanent. The name of the grantor as stated in column 11 is Janganna Rao and the year of grant is fasli 1179, A.D. 1770. In column 13 the name of the temple is set out as the original grantee. The name of the temple and the location of the temple are also set out under columns 16 and 17. Turning now to the statement Ex. D/3 caused to be written and filed by the then Archakas during the Inam Inquiry held inSree Somasekharaswami Varu is given as the name of the Inamdar and the present enjoyer. The name of the temple is also set out under columns 3, 5, 6 and 12. Under the heading Income derived from the Inamwhether it is sarvadumbala or jodi. If jodi the amount in column 13 is stated sarvadumbala Inam. Cist according to the rate prevailing in the neighbouring fields. This statement (Ex. D/3) bears the signature of the Karnams and the witnesses. It will be noticed that neither in the Inam Register Ex. P/3 nor in the statement Ex. D/3 is there any mention of the Archakas as the grantee or for the matter of that, having any the least interest, personal or otherwise, in theof the Inam grant. The two exhibits quite clearly indicate that the Inam grant was made in favour of the temple by the grantor and that in the face of this definite evidence and proof of the nature of the grant, no presumption of a lost grant can be made in favour of the Archakas. We, therefore, in agreement with the High Court, hold that the deity was the grantee and the first question raised before us must be answered against the appellants.Therefore the word permanent signifies the grant in favour of the temple. An attempt was made by the appellant to distinguish this case having regard to the other entries, namely, to be confirmed to the party in column 16permanently so long as he continues the performance of the service. It is also argued the entry as permanent in column 10 is by no means decisive and in support of this Thirulakshmi Ammal ((1973) 86 Mad LW 613 : (1973) 2 Mad LJ 317) is cited. It must be remembered that in the Madras case, it was supported by the statement of the Inam Commissioner which is not so in the instant case. Therefore any conclusion arrived at by the Inam Commissioner without the original title deed cannot change the character of the grant as rightly held by the High Court. | 1 | 7,824 | 1,568 | ### Instruction:
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those in Ex. P-52. The final order of the Inam Commissioner was also in terms similar, and was confirmed to the fakirs the Sadavarti charity according to the grant, free, three being no excess. It is interesting to note that in column 2 (general class to which inam belongs) is noted Devadayam, i.e., dedicated to God; that in column 8 meant for the description of the inam is noted : for the support of Pagoda of Sri Jagannadhaswami in Bondilipuram, and that the entry in column 11 indicates that Anavaruddin Khan Bahadur made the grant in Hijiri 1171 corresponding to 1754-55 A.D. It is clear that the note about the land being dedicated to God is wrong in view of the definite statement that the Sanad mentioned that the inam was given for the support of fakirs to the original grantee (Mandasa Palahari Bairagi in Column 13) about a century ago and that it were the trustees of the institution who constructed the temple. When the temple was constructed by the trustees of the institution, viz., the Sadavarti institution, the original grant could not have been to the temple or to God. The entries in this extract confirm the construction we have placed on similar entries in Ex. P-52 and other extracts indicating the grant to the temple." * 44. As rightly pointed out by the High Court even the title deeds issued in favour of the service holders described the character of the property as Devadayam; this entry read in light of the Ex. B-1, the genuineness of which was never challenged, lends great support to the arguments addressed on behalf of the Devasthanam. This decision has also been referred to in Shri Vallabharaya ( 1979 (3) SCC 778 : 1979 AIR(SC) 1147), wherein the following observations are found : (SCC p. 778, para 2). "Column 1 of the Inam Fair Register describes the class of inam as Devadayam. But as observed in Venkayya v. Sriramamurthy 1957 AIR(AP) 53), this description by itself cannot be determinative of the question since it only denotes that the endowment is of a religious character which will include a service inam attached to a temple." * 45. Sami Ayyangar 1934 AIR(Mad) 381) observed at page 381 as under : "The use of the word Devadayam does not necessarily import that the grant was made to the temple, ...." 46. Coming to the entries in column 10, the Inam Fair Register states permanent so long as it is continued. The description in column 10 referring to the inam as permanent instead of hereditary is more consistent with the inam, being a service inam, rather than a personal grant burdened with service. Reliance is placed by Mr Padmanabham on Shri Vallabharaya Swami Varu 1957 AIR(AP) 53) but it has to be observed in that case that column 10 of the Register shows that the grant was hereditary. On the contrary the case Buddu Satyanarayana 1953 SCR 1001 : 1953 AIR(SC) 195) relied upon by Mr. K. Parasaran is apt in this case. It observed at page 1004 as under : "The copy of the statement filed by the then Archakas before the Inam Deputy Collector was exhibited in this case as Ex. D/3. In the Inam Register (Ex. P/3) under the several columns grouped under the general heading "Class extent and value of Inam" this Inam is classified in column 2 as Devadayam. In column 3 are set out the survey numbers together with the word Dry indicating the nature of the land comprised within the survey numbers. The areas are set out in column 5. The heading of column 7 is where no survey has been made and no assessment fixed by Government, the cess paid by the ryot to the Inamdar, or the average assessment of similar Government land should be entered in column (7). Under this heading are set out the amounts of respective assessments against the three survey numbers totalling Rs. 198-13-9. We then pass on the next group of columns under the general heading Description, tenure and documents in support of the Inam. Under column 8 description of Inam is entered the remark For the support of a Pagoda. Now kept up. The entry in column 9 shows that the Inam was free of tax, i.e., Sarvadumbala. Under column 10 headed Hereditary, unconditional for life only or for two or more lives is mentioned Permanent. The name of the grantor as stated in column 11 is Janganna Rao and the year of grant is fasli 1179, A.D. 1770. In column 13 the name of the temple is set out as the original grantee. The name of the temple and the location of the temple are also set out under columns 16 and 17. Turning now to the statement Ex. D/3 caused to be written and filed by the then Archakas during the Inam Inquiry held in 1859-60. Sree Somasekharaswami Varu is given as the name of the Inamdar and the present enjoyer. The name of the temple is also set out under columns 3, 5, 6 and 12. Under the heading Income derived from the Inam - whether it is sarvadumbala or jodi. If jodi the amount in column 13 is stated sarvadumbala Inam. Cist according to the rate prevailing in the neighbouring fields - Rs. 266-3-1. This statement (Ex. D/3) bears the signature of the Karnams and the witnesses. It will be noticed that neither in the Inam Register Ex. P/3 nor in the statement Ex. D/3 is there any mention of the Archakas as the grantee or for the matter of that, having any the least interest, personal or otherwise, in the subject-matter of the Inam grant. The two exhibits quite clearly indicate that the Inam grant was made in favour of the temple by the grantor and that in the face of this definite evidence and proof of the nature of the grant, no presumption of a lost grant can be made in favour of the Archakas.
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it mentions that any alienation will be illegal; (e) it further mentions "without any defect in the service, the possession shall be made". This should obviously mean, in our opinion, so long as the service was rendered the land will continue to be in possession of those rendering service; (f) with reference to each oozhiam the word isum is mentioned which means permanent; (g) should there be any alienation by the particular service holder the land was liable to be resumed.33. Though the High Court placed reliance on these documents the Tribunal was of the view that the word Sanad used in these documents could convey no legal implication. It was just an order of the Collector or a circular passed on to the Tehsildar. We do not think this approach of the Tribunal is correct since this is only a supporting document on behalf of the Devasthanam to decide the nature of the grant.34. Then we come to Ex.which came to be marked in the High Court by the consent of the parties. This is dated January 8, 1864. That clearly spells out that it was a title deed granted to the manager for the time being of the Pagoda of Shri Patteswaraswami. It unmistakably says that the Secretary of the State for India in Council, acknowledges the title deed to a Devadayam or Pagoda Inam. The date of original settlement is January 8, 1864 and it was renewed on February 22, 1900.Coming to the entries in column 10, the Inam Fair Register states permanent so long as it is continued. The description in column 10 referring to the inam as permanent instead of hereditary is more consistent with the inam, being a service inam, rather than a personal grant burdened with service. Reliance is placed by Mr Padmanabham on Shri Vallabharaya Swami Varu 1957 AIR(AP) 53) but it has to be observed in that case that column 10 of the Register shows that the grant was hereditary. On the contrary the case Buddu Satyanarayana 1953 SCR 1001 : 1953 AIR(SC) 195) relied upon by Mr. K. Parasaran is apt in this case. It observed at page 1004 as undercopy of the statement filed by the then Archakas before the Inam Deputy Collector was exhibited in this case as Ex. D/3. In the Inam Register (Ex. P/3) under the several columns grouped under the general heading "Class extent and value of Inam" this Inam is classified in column 2 as Devadayam. In column 3 are set out the survey numbers together with the word Dry indicating the nature of the land comprised within the survey numbers. The areas are set out in column 5. The heading of column 7 is where no survey has been made and no assessment fixed by Government, the cess paid by the ryot to the Inamdar, or the average assessment of similar Government land should be entered in column (7). Under this heading are set out the amounts of respective assessments against the three survey numbers totalling Rs.We then pass on the next group of columns under the general heading Description, tenure and documents in support of the Inam. Under column 8 description of Inam is entered the remark For the support of a Pagoda. Now kept up. The entry in column 9 shows that the Inam was free of tax, i.e., Sarvadumbala. Under column 10 headed Hereditary, unconditional for life only or for two or more lives is mentioned Permanent. The name of the grantor as stated in column 11 is Janganna Rao and the year of grant is fasli 1179, A.D. 1770. In column 13 the name of the temple is set out as the original grantee. The name of the temple and the location of the temple are also set out under columns 16 and 17. Turning now to the statement Ex. D/3 caused to be written and filed by the then Archakas during the Inam Inquiry held inSree Somasekharaswami Varu is given as the name of the Inamdar and the present enjoyer. The name of the temple is also set out under columns 3, 5, 6 and 12. Under the heading Income derived from the Inamwhether it is sarvadumbala or jodi. If jodi the amount in column 13 is stated sarvadumbala Inam. Cist according to the rate prevailing in the neighbouring fields. This statement (Ex. D/3) bears the signature of the Karnams and the witnesses. It will be noticed that neither in the Inam Register Ex. P/3 nor in the statement Ex. D/3 is there any mention of the Archakas as the grantee or for the matter of that, having any the least interest, personal or otherwise, in theof the Inam grant. The two exhibits quite clearly indicate that the Inam grant was made in favour of the temple by the grantor and that in the face of this definite evidence and proof of the nature of the grant, no presumption of a lost grant can be made in favour of the Archakas. We, therefore, in agreement with the High Court, hold that the deity was the grantee and the first question raised before us must be answered against the appellants.Therefore the word permanent signifies the grant in favour of the temple. An attempt was made by the appellant to distinguish this case having regard to the other entries, namely, to be confirmed to the party in column 16permanently so long as he continues the performance of the service. It is also argued the entry as permanent in column 10 is by no means decisive and in support of this Thirulakshmi Ammal ((1973) 86 Mad LW 613 : (1973) 2 Mad LJ 317) is cited. It must be remembered that in the Madras case, it was supported by the statement of the Inam Commissioner which is not so in the instant case. Therefore any conclusion arrived at by the Inam Commissioner without the original title deed cannot change the character of the grant as rightly held by the High Court.
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COMMISSIONER OF CENTRAL EXCISE, KANPUR Vs. KOTHARI PRODUCTS LIMITED | issued a show-cause notice dated 4-2-2000 asking them to show cause as to why Central excise duty amounting to Rs 1,93,83,911 may not be demanded under the proviso to Section ll-A(l) of the Act and why penalty should not be imposed under Section 11-AC read with Rule 173-Q of the Central Excise Rules, 1944 (for short "the Rules"). 4. The respondents were also required to show cause as to why interest on duty so evaded should not be demanded under Section 11-AB of the Act on the ground that they were clearing the goods at different discounts and deductions varying from State to State which they termed as regional discounts during the relevant period. Shri Deepak Kothari, Managing Director of the company was also required to show cause as to why penalty should not be imposed upon him under Rule 209 of the Rules for his involvement in evasion of payment of Central excise duty. 5. The authority-in-original confirmed the demand of the Central excise duty and penalty of an equal amount was also imposed. It also imposed a penalty of Rs 1,00.000 upon Shri Deepak Kothari under Rule 209-A of the Rules. It was also directed that the respondents shall pay interest on the amount of duty confirmed. Being aggrieved by the order of the authority-in-original, the respondents filed appeals before the Tribunal. 6. The Tribunal has set aside the order-in-original on the ground that the respondents were earlier issued seven show-cause notices between March 1994 to October 1995 for the period August 1993 to July 1995. It was alleged in those show-cause notices that different prices for dealers situated in different regions cannot be considered as different class of buyers. It was alleged that all the dealers should be treated as the same class of buyers. Accordingly, differential duty was proposed to be demanded. The respondents resisted the show-cause notices. The case of the respondents was that different prices for dealers situated in different regions is permissible in law. However, the Assistant Commissioner confirmed the demands as proposed in the show-cause notices. 7. Aggrieved against the order of the Assistant Commissioner, the respondents filed appeal before the Commissioner (Appeals), Allahabad. The Commissioner vide his order dated 28-11-1997 set aside the order passed by the Assistant Commissioner and allowed the appeal. It was held as under: "I have carefully gone through the case records, ground of appeal, submissions made during personal hearing and various case laws relied upon by the appellants. The appellants are engaged in the manufacture of pan masala falling under Sub-Heading 2106.00 of the Central Excise Tariff Act, 1985. They sell the product directly from the factory to the dealers situated in different States/regions. The appellants also stock transfer some quantity to the C&F agents situated in some of the States/regions. The ultimate consumer price is uniform all over the country. The price to be charged by the wholesale buyer to the retailers is also uniform. In order to ensure that the wholesale buyers get a uniform discount, expressed as a percentage over the landed cost, as also to take care of the varying rates of sales tax prevalent in the respective States, the appellants fix the basic prices by working backwards from the wholesale price. In other words the appellants explained that from the wholesale prices, they exclude the margin to the dealer and thereafter the sales tax to be suffered by the dealer and thereafter deduct the freight element which is charged on equalised basis and also the turnover tax, if any, payable. Thus the basic price plus excise duty is arrived at. This is bifurcated into basic price (assessable value) and excise duty. Thus while raising the sale invoices for the goods sold, the appellants raise the invoices for basic price (assessable value), excise duty and the equalised freight. The Central sales tax is also charged on the same. The appellants do not charge and recover any other amount over and above the amounts indicated in the respective sales invoices. In the proceedings also there is no such allegation raised either in the show-cause notice or in the order-in-original." This order of the Commissioned Appeals) was confirmed by the Tribunal in appeal. The Revenue did not carry any further appeal meaning thereby that it has attained finality. 8. In the present case, the Tribunal has set aside the order-in-original passed by the Commissioner and held that in view of the earlier decision given by the Tribunal, the Revenue was not justified in issuing a fresh show-cause notice and the same was barred by limitation as well as by the principle of res judicata. 9. The Tribunal has dismissed the appeal by observing thus: "All the facts and the evidence relied upon in the present proceedings were fully known to the departmental authorities when the seven show-cause notices were issued to the appellants demanding duty of Rs 6,09,75,357.23 covering the period from August 1993 to July 1995. There are no fresh investigation undertaken which would entail issue of this show-cause notice. The relationship between the appellants and their dealers/consignment agents are covered by the agreements entered into by these parties. The agreements were with the Department right from the beginning when the earlier proceedings were initiated against the appellants, yet at no stage it was either felt or alleged that the prices of the goods as declared in the invoices issued by the appellants under Rule 52-A at the time of removal of the goods from the factory to these places (Hyderabad, Bombay and Trichy) was not normal value/price of the goods and hence not acceptable. We are clear in our mind that the issue in the present appeal is fully covered by the decision of the Tribunal in the earlier proceedings in favour of the appellants and the Revenue is barred by limitation as well as on the principle of res judicata against raising the same issue again. Therefore, we allow these appeals by setting aside the impugned order passed by the Commissioner." | 0[ds]8. In the present case, the Tribunal has set aside the order-in-original passed by the Commissioner and held that in view of the earlier decision given by the Tribunal, the Revenue was not justified in issuing a fresh show-cause notice and the same was barred by limitation as well as by the principle of res judicata9. The Tribunal has dismissed the appeal by observing thus:"All the facts and the evidence relied upon in the present proceedings were fully known to the departmental authorities when the seven show-cause notices were issued to the appellants demanding duty of Rs 6,09,75,357.23 covering the period from August 1993 to July 1995. There are no fresh investigation undertaken which would entail issue of this show-cause noticeThe relationship between the appellants and their dealers/consignment agents are covered by the agreements entered into by these parties. The agreements were with the Department right from the beginning when the earlier proceedings were initiated against the appellants, yet at no stage it was either felt or alleged that the prices of the goods as declared in the invoices issued by the appellants under Rule 52-A at the time of removal of the goods from the factory to these places (Hyderabad, Bombay and Trichy) was not normal value/price of the goods and hence not acceptableWe are clear in our mind that the issue in the present appeal is fully covered by the decision of the Tribunal in the earlier proceedings in favour of the appellants and the Revenue is barred by limitation as well as on the principle of res judicata against raising the same issue again. Therefore, we allow these appeals by setting aside the impugned order passed by the Commissioner."10. We agree with the order passed by the Tribunal that in view of the earlier order passed by the Tribunal which has attained finality, the Department was not justified in issuing the present show-cause notice and the same is barred by limitation as well as by the principle of res judicata. | 0 | 1,275 | 357 | ### Instruction:
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issued a show-cause notice dated 4-2-2000 asking them to show cause as to why Central excise duty amounting to Rs 1,93,83,911 may not be demanded under the proviso to Section ll-A(l) of the Act and why penalty should not be imposed under Section 11-AC read with Rule 173-Q of the Central Excise Rules, 1944 (for short "the Rules"). 4. The respondents were also required to show cause as to why interest on duty so evaded should not be demanded under Section 11-AB of the Act on the ground that they were clearing the goods at different discounts and deductions varying from State to State which they termed as regional discounts during the relevant period. Shri Deepak Kothari, Managing Director of the company was also required to show cause as to why penalty should not be imposed upon him under Rule 209 of the Rules for his involvement in evasion of payment of Central excise duty. 5. The authority-in-original confirmed the demand of the Central excise duty and penalty of an equal amount was also imposed. It also imposed a penalty of Rs 1,00.000 upon Shri Deepak Kothari under Rule 209-A of the Rules. It was also directed that the respondents shall pay interest on the amount of duty confirmed. Being aggrieved by the order of the authority-in-original, the respondents filed appeals before the Tribunal. 6. The Tribunal has set aside the order-in-original on the ground that the respondents were earlier issued seven show-cause notices between March 1994 to October 1995 for the period August 1993 to July 1995. It was alleged in those show-cause notices that different prices for dealers situated in different regions cannot be considered as different class of buyers. It was alleged that all the dealers should be treated as the same class of buyers. Accordingly, differential duty was proposed to be demanded. The respondents resisted the show-cause notices. The case of the respondents was that different prices for dealers situated in different regions is permissible in law. However, the Assistant Commissioner confirmed the demands as proposed in the show-cause notices. 7. Aggrieved against the order of the Assistant Commissioner, the respondents filed appeal before the Commissioner (Appeals), Allahabad. The Commissioner vide his order dated 28-11-1997 set aside the order passed by the Assistant Commissioner and allowed the appeal. It was held as under: "I have carefully gone through the case records, ground of appeal, submissions made during personal hearing and various case laws relied upon by the appellants. The appellants are engaged in the manufacture of pan masala falling under Sub-Heading 2106.00 of the Central Excise Tariff Act, 1985. They sell the product directly from the factory to the dealers situated in different States/regions. The appellants also stock transfer some quantity to the C&F agents situated in some of the States/regions. The ultimate consumer price is uniform all over the country. The price to be charged by the wholesale buyer to the retailers is also uniform. In order to ensure that the wholesale buyers get a uniform discount, expressed as a percentage over the landed cost, as also to take care of the varying rates of sales tax prevalent in the respective States, the appellants fix the basic prices by working backwards from the wholesale price. In other words the appellants explained that from the wholesale prices, they exclude the margin to the dealer and thereafter the sales tax to be suffered by the dealer and thereafter deduct the freight element which is charged on equalised basis and also the turnover tax, if any, payable. Thus the basic price plus excise duty is arrived at. This is bifurcated into basic price (assessable value) and excise duty. Thus while raising the sale invoices for the goods sold, the appellants raise the invoices for basic price (assessable value), excise duty and the equalised freight. The Central sales tax is also charged on the same. The appellants do not charge and recover any other amount over and above the amounts indicated in the respective sales invoices. In the proceedings also there is no such allegation raised either in the show-cause notice or in the order-in-original." This order of the Commissioned Appeals) was confirmed by the Tribunal in appeal. The Revenue did not carry any further appeal meaning thereby that it has attained finality. 8. In the present case, the Tribunal has set aside the order-in-original passed by the Commissioner and held that in view of the earlier decision given by the Tribunal, the Revenue was not justified in issuing a fresh show-cause notice and the same was barred by limitation as well as by the principle of res judicata. 9. The Tribunal has dismissed the appeal by observing thus: "All the facts and the evidence relied upon in the present proceedings were fully known to the departmental authorities when the seven show-cause notices were issued to the appellants demanding duty of Rs 6,09,75,357.23 covering the period from August 1993 to July 1995. There are no fresh investigation undertaken which would entail issue of this show-cause notice. The relationship between the appellants and their dealers/consignment agents are covered by the agreements entered into by these parties. The agreements were with the Department right from the beginning when the earlier proceedings were initiated against the appellants, yet at no stage it was either felt or alleged that the prices of the goods as declared in the invoices issued by the appellants under Rule 52-A at the time of removal of the goods from the factory to these places (Hyderabad, Bombay and Trichy) was not normal value/price of the goods and hence not acceptable. We are clear in our mind that the issue in the present appeal is fully covered by the decision of the Tribunal in the earlier proceedings in favour of the appellants and the Revenue is barred by limitation as well as on the principle of res judicata against raising the same issue again. Therefore, we allow these appeals by setting aside the impugned order passed by the Commissioner."
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8. In the present case, the Tribunal has set aside the order-in-original passed by the Commissioner and held that in view of the earlier decision given by the Tribunal, the Revenue was not justified in issuing a fresh show-cause notice and the same was barred by limitation as well as by the principle of res judicata9. The Tribunal has dismissed the appeal by observing thus:"All the facts and the evidence relied upon in the present proceedings were fully known to the departmental authorities when the seven show-cause notices were issued to the appellants demanding duty of Rs 6,09,75,357.23 covering the period from August 1993 to July 1995. There are no fresh investigation undertaken which would entail issue of this show-cause noticeThe relationship between the appellants and their dealers/consignment agents are covered by the agreements entered into by these parties. The agreements were with the Department right from the beginning when the earlier proceedings were initiated against the appellants, yet at no stage it was either felt or alleged that the prices of the goods as declared in the invoices issued by the appellants under Rule 52-A at the time of removal of the goods from the factory to these places (Hyderabad, Bombay and Trichy) was not normal value/price of the goods and hence not acceptableWe are clear in our mind that the issue in the present appeal is fully covered by the decision of the Tribunal in the earlier proceedings in favour of the appellants and the Revenue is barred by limitation as well as on the principle of res judicata against raising the same issue again. Therefore, we allow these appeals by setting aside the impugned order passed by the Commissioner."10. We agree with the order passed by the Tribunal that in view of the earlier order passed by the Tribunal which has attained finality, the Department was not justified in issuing the present show-cause notice and the same is barred by limitation as well as by the principle of res judicata.
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STATE OF KERALA AND OTHERS Vs. KALLIYANIKUTTY AND ANOTHER | in any of the sections of the said Act that the entire amount due whether time barred or not, can be recovered by resorting to the procedure under the Kerala Revenue Recovery Act. 13.- In our view if such a wide interpretation is put on the words amount due under the Kerala Revenue Recovery Act, there is every likelihood of the provisions of the Article 14 being attracted. this Court in the case Director of Industries, U.P. and Others Vs. Deep Chand Agarwal, justified the special procedure for recovery of certain debts under the U.P. Public Moneys (Recovery of Dues)Act, 1965 on the ground that the amount which were advanced by the State or by the financial institutions were for the economic betterment of the people of that State. Speedy recovery of these amounts was necessary so that these amounts was necessary so that these amounts could be re-utilised for the same public purpose. It is doubtful if this public purpose would extend to granting exemption to these claims from the statutes of limitation. The law of limitation itself rests on the foundations of public interest. The courts have expressed at least three reasons for supporting the existence of statutes of limitation; (1)that long dormant claims have more of cruelty than justice in them; (2)that a Defendant might have lost the evidence to disprove a stale claim; and (3)that persons with good causes of action should pursue them with reasonable diligence. (See Halsbury 4th Edn. Vol.28 para.605), In Nav Rattanmal and Others Vs. The State of Rajasthan, , the Statutes of Limitation have been considered as Statutes of Repose and statutes of Peace. The generally accepted basis for such statutes is that they are designed to effectuate a beneficent public purpose. Whether public purpose of speedy recovery would outweigh public purpose behind a statute of limitation is a moot point. But we need not examine this aspect any further in view of our interpretation of the words amounts due in Section 71. 14. It has been submitted before us that the statute of limitation merely bars the remedy without touching the right. Therefore, the right to recover the loan would remain even though the remedy by way of a suit would be time barred. Reliance was placed on Khadi Gram Udyog Trust Vs. Ram Chandraji Virajman Mandir, Sarasiya Ghat, Kanpur, )in this connection. The court there observed that though a debt may be time barred, it would still be a debt due. The right remains untouched and if a creditor has any means of enforcing his right other than by action or set off, he is not prevented from doing so. In Punjab National Bank and others Vs. Surendra Prasad Sinha, at page 503 this Court held that the rule of limitation are not meant to destroy the rights of the parties. Section 3 of the Limitation Act only bars the remedy but does not destroy the right which the remedy relates to. Excepting cases which are specifically provided for, as for example, u/s 27 of the Limitation Act, the right to which the remedy relates subsists. Though the right to enforce the debt by judicial process is barred, that right can be exercised in any manner other than by means of a suit. For example, a creditors right to make adjustment against time barred debts exists. 15. There is no question, however, in the present case of any payment voluntarily made by a debtor being adjusted by his creditor against a time barred debt. The provisions in the present case are statutory provisions for coercive recovery of amounts due, Although the necessity of filing a suit by a creditor is avoided, the extent of the claim which is legally recoverable is not thereby enlarged. u/s 70(2) of the Kerala Revenue Recovery Act the right of a debtor to file a suit for refund is expressly preserved. Instead of the bank or the financial institution filing a suit which is defended by the debtor, the creditor first recovers and then defends his recovery in a suit filed by the debtor. The rights of the parties are not thereby enlarged. The process of recovery is different. An Act must expressly provide for such enlargement of claims which are legally recoverable, before it can be interpreted as extending to the recovery of those amounts which have ceased to be legally recoverable on the date when recovery proceedings are undertaken. Under the Kerala Revenue Recovery Act such process of recovery would start with a written requisition issued in the prescribed form by the creditor to the collector of the District as prescribed u/s 69(2) of the said Act. Therefore, all claims which are legally recoverable and are not time barred on that date can be recovered under the Kerala Revenue Recovery Act. 16. In view of the interpretation which we have put on Section 71 of the Kerala Revenue Recovery Act it is not necessary for us to consider whether by making a requisition u/s 69(2) a creditor sets in motion a process of recovery which is a judicial process which would attract the Law of Limitation. There is a clear provision for adjudication u/s 70(3) of the said Act. This right u/s 70(3) of the said Act. This right u/s 70(3)is not affected by Section 72 of the said Act as was contended before us by the Respondents. Section 72 merely provides that every question arising between the Collector or the authorised officer and the defaulter relating to execution, discharge or satisfaction of a written demand issued under this Act will be determined not by a suit but under the provisions of the said Act. Section 72 does not cover the right of a person making a payment under protest to institute a suit which is expressly provided for u/s 70,Sub-section (3).Looking to the scheme of recovery and refund under Sections 70 and 71, amounts due u/s 71 are those amounts which the creditor could have recovered had he filed a suit. | 1[ds]The word due always imports a fixed and settled obligation or liability; but with reference to the time for its payment there is considerable ambiguity in the use of the term, the precise signification being determined in each case from the context. It may mean that the debt or claim in question is now (presently or immediately)matured and enforceable, or that it matured at sometime in the past and yet remains unsatisfied, or that it is fixed and certain but the day appointed for its payment has not yet arrived. But commonly and in the absence of any qualifying expressions, the word due is restricted to the first of these meanings, the second being expressed by the term overdue and the third by the word payable. There is no reference in these definitions to a time-barred debt. In every case the exact meaning of the word due will depend upon the context in which that word appears.8. In the case of Abdullah Ashgar Ali v. Ganesh Das, AIR (20) 1933 PC 63 the Privy Council was required to interpret the words money due u/s 186 of the Companies Act, 1913. Section 186 dealt with the recovery of any money due to the Company from a contributory. Interpreting the words money due, the Privy Council said that the phrase would only refer to those claims which were not time barred. It noted that the section is concerned only with moneys due from a contributory. A debtor who is not a contributory is not affected by it. Moneys due from him can be recovered only by a suit in the companys name. Secondly, the section creates a special procedure for obtaining payment of money. It is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights. Thirdly, the power of the court to order payment under that Section is discretionary. It may refuse to act under that section, leaving the liquidator to sue in the name of the company. Therefore, the Respondent under the procedure of Section 186 cannot be deprived of some defence or answer open to him in a suit for the same moneys.9. The same reasoning would apply in the present case also. The Kerala Revenue Recovery Act does not create any new right. It merely provides a process for speedy recovery of moneys due. Therefore, instead of filing a suit, (or an application or petition under any special Act), obtaining a decree and executing it, the bank or the financial institution can now recover the claim under the Kerala Revenue Recovery Act. Since this Act does not create any new right, the person claiming recovery cannot claim recovery of amounts which are not legally recoverable nor can a defence of limitation available to a debtor in a suit or other legal proceeding be taken away under the provisions of the Kerala Revenue Recovery Act. In fact, u/s 70 of the Kerala Revenue Recovery Act, it is provided that when proceedings are taken under this Act Act against any person for the recovery of any sum of money due from him, such person may, at any time before the commencement of the sale of any property attached in such proceedings, pay the amount claimed and at the same time deliver a protest signed by himself to the officer issuing the demand or conducting the sale as the case may be. Sub-section (2)of Section 70 provides that when the amount is paid under protest, the officer issuing the demand or the officer at whose instance the proceedings have been initiated, shall enquire into the protest and pass appropriate orders. If the protest is accepted, the officer disposing of the protest shall immediately ordense refund of whole or part of the money paid under protest. Under Sub-section (3)of Section 70, the person making a payment under protest shall have the right. to institute a suit for the refund of the whole or part of the sum paid by him under protest.10. Therefore, u/s 70(3) a person who has paid under protest can file a suit for refund of the amount wrongly recovered. In law he would be entitled to submit in the suit that the claim against which the recovery has been made is time barred. Hence no amount should have recovered from him. When the right to file a suit u/s 70(3) is expressly preserved, there is a necessary implication that the shield of limitation available to a debtor in a suit is also preserved. He cannot, therefore, be deprived of this right simply by making a recovery under the said Act unless there is anything in the Act which expressly brings about such a result. Provisions of the said Act, however, indicate to the contrary. Moreover, such a wide interpretation of amount due which destroys an important defence available to a debtor in a suit against him by the creditor, may attract Article 14 against the Act. It would be ironic if an Act for speedy recovery is held as enabling a creditor who has delayed recovery beyond the period of limitation to recover such delayed claims.This case turned on the interpretation of Section 20 of the U.P. Buildings (Regulation of Letting, Rent and Eviction)Act, 1972. u/s 20(2)(a) a suit for eviction against a tenant may be instituted on the ground that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. A further opportunity of payment of rent is provided to the tenant u/s 20(4) which provides that if, at the first hearing of the suit, the tenant unconditionally pays r tenders the entire amount of rent and damages due from him together with interest the court may pass an order relieving the tenant against his liability for eviction. The court said that Section 20(4) is meant to give a last opportunity to the tenant to retrieve his position. It confers a benefit on the tenant to avoid a decree of eviction. Hence the entire amount of arrears due would have to be tendered including time barred rent also. This reasoning however, does not have any application to the Kerala Revenue Recovery Act. There is no indication in any of the sections of the said Act that the entire amount due whether time barred or not, can be recovered by resorting to the procedure under the Kerala Revenue Recovery Act.13.- In our view if such a wide interpretation is put on the words amount due under the Kerala Revenue Recovery Act, there is every likelihood of the provisions of the Article 14 being attracted. this Court in the case Director of Industries, U.P. and Others Vs. Deep Chand Agarwal, justified the special procedure for recovery of certain debts under the U.P. Public Moneys (Recovery of Dues)Act, 1965 on the ground that the amount which were advanced by the State or by the financial institutions were for the economic betterment of the people of that State. Speedy recovery of these amounts was necessary so that these amounts was necessary so that these amounts could be re-utilised for the same public purpose. It is doubtful if this public purpose would extend to granting exemption to these claims from the statutes of limitation. The law of limitation itself rests on the foundations of public interest. The courts have expressed at least three reasons for supporting the existence of statutes of limitation; (1)that long dormant claims have more of cruelty than justice in them; (2)that a Defendant might have lost the evidence to disprove a stale claim; and (3)that persons with good causes of action should pursue them with reasonable diligence. (See Halsbury 4th Edn. Vol.28 para.605), In Nav Rattanmal and Others Vs. The State of Rajasthan, , the Statutes of Limitation have been considered as Statutes of Repose and statutes of Peace. The generally accepted basis for such statutes is that they are designed to effectuate a beneficent public purpose. Whether public purpose of speedy recovery would outweigh public purpose behind a statute of limitation is a moot point. But we need not examine this aspect any further in view of our interpretation of the words amounts due in Section 71.15. There is no question, however, in the present case of any payment voluntarily made by a debtor being adjusted by his creditor against a time barred debt. The provisions in the present case are statutory provisions for coercive recovery of amounts due, Although the necessity of filing a suit by a creditor is avoided, the extent of the claim which is legally recoverable is not thereby enlarged. u/s 70(2) of the Kerala Revenue Recovery Act the right of a debtor to file a suit for refund is expressly preserved. Instead of the bank or the financial institution filing a suit which is defended by the debtor, the creditor first recovers and then defends his recovery in a suit filed by the debtor. The rights of the parties are not thereby enlarged. The process of recovery is different. An Act must expressly provide for such enlargement of claims which are legally recoverable, before it can be interpreted as extending to the recovery of those amounts which have ceased to be legally recoverable on the date when recovery proceedings are undertaken. Under the Kerala Revenue Recovery Act such process of recovery would start with a written requisition issued in the prescribed form by the creditor to the collector of the District as prescribed u/s 69(2) of the said Act. Therefore, all claims which are legally recoverable and are not time barred on that date can be recovered under the Kerala Revenue Recovery Act.16. In view of the interpretation which we have put on Section 71 of the Kerala Revenue Recovery Act it is not necessary for us to consider whether by making a requisition u/s 69(2) a creditor sets in motion a process of recovery which is a judicial process which would attract the Law of Limitation. There is a clear provision for adjudication u/s 70(3) of the said Act. This right u/s 70(3) of the said Act. This right u/s 70(3)is not affected by Section 72 of the said Act as was contended before us by the Respondents. Section 72 merely provides that every question arising between the Collector or the authorised officer and the defaulter relating to execution, discharge or satisfaction of a written demand issued under this Act will be determined not by a suit but under the provisions of the said Act. Section 72 does not cover the right of a person making a payment under protest to institute a suit which is expressly provided for u/s 70,Sub-section (3).Looking to the scheme of recovery and refund under Sections 70 and 71, amounts due u/s 71 are those amounts which the creditor could have recovered had he filed a suit. | 1 | 4,044 | 2,040 | ### Instruction:
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in any of the sections of the said Act that the entire amount due whether time barred or not, can be recovered by resorting to the procedure under the Kerala Revenue Recovery Act. 13.- In our view if such a wide interpretation is put on the words amount due under the Kerala Revenue Recovery Act, there is every likelihood of the provisions of the Article 14 being attracted. this Court in the case Director of Industries, U.P. and Others Vs. Deep Chand Agarwal, justified the special procedure for recovery of certain debts under the U.P. Public Moneys (Recovery of Dues)Act, 1965 on the ground that the amount which were advanced by the State or by the financial institutions were for the economic betterment of the people of that State. Speedy recovery of these amounts was necessary so that these amounts was necessary so that these amounts could be re-utilised for the same public purpose. It is doubtful if this public purpose would extend to granting exemption to these claims from the statutes of limitation. The law of limitation itself rests on the foundations of public interest. The courts have expressed at least three reasons for supporting the existence of statutes of limitation; (1)that long dormant claims have more of cruelty than justice in them; (2)that a Defendant might have lost the evidence to disprove a stale claim; and (3)that persons with good causes of action should pursue them with reasonable diligence. (See Halsbury 4th Edn. Vol.28 para.605), In Nav Rattanmal and Others Vs. The State of Rajasthan, , the Statutes of Limitation have been considered as Statutes of Repose and statutes of Peace. The generally accepted basis for such statutes is that they are designed to effectuate a beneficent public purpose. Whether public purpose of speedy recovery would outweigh public purpose behind a statute of limitation is a moot point. But we need not examine this aspect any further in view of our interpretation of the words amounts due in Section 71. 14. It has been submitted before us that the statute of limitation merely bars the remedy without touching the right. Therefore, the right to recover the loan would remain even though the remedy by way of a suit would be time barred. Reliance was placed on Khadi Gram Udyog Trust Vs. Ram Chandraji Virajman Mandir, Sarasiya Ghat, Kanpur, )in this connection. The court there observed that though a debt may be time barred, it would still be a debt due. The right remains untouched and if a creditor has any means of enforcing his right other than by action or set off, he is not prevented from doing so. In Punjab National Bank and others Vs. Surendra Prasad Sinha, at page 503 this Court held that the rule of limitation are not meant to destroy the rights of the parties. Section 3 of the Limitation Act only bars the remedy but does not destroy the right which the remedy relates to. Excepting cases which are specifically provided for, as for example, u/s 27 of the Limitation Act, the right to which the remedy relates subsists. Though the right to enforce the debt by judicial process is barred, that right can be exercised in any manner other than by means of a suit. For example, a creditors right to make adjustment against time barred debts exists. 15. There is no question, however, in the present case of any payment voluntarily made by a debtor being adjusted by his creditor against a time barred debt. The provisions in the present case are statutory provisions for coercive recovery of amounts due, Although the necessity of filing a suit by a creditor is avoided, the extent of the claim which is legally recoverable is not thereby enlarged. u/s 70(2) of the Kerala Revenue Recovery Act the right of a debtor to file a suit for refund is expressly preserved. Instead of the bank or the financial institution filing a suit which is defended by the debtor, the creditor first recovers and then defends his recovery in a suit filed by the debtor. The rights of the parties are not thereby enlarged. The process of recovery is different. An Act must expressly provide for such enlargement of claims which are legally recoverable, before it can be interpreted as extending to the recovery of those amounts which have ceased to be legally recoverable on the date when recovery proceedings are undertaken. Under the Kerala Revenue Recovery Act such process of recovery would start with a written requisition issued in the prescribed form by the creditor to the collector of the District as prescribed u/s 69(2) of the said Act. Therefore, all claims which are legally recoverable and are not time barred on that date can be recovered under the Kerala Revenue Recovery Act. 16. In view of the interpretation which we have put on Section 71 of the Kerala Revenue Recovery Act it is not necessary for us to consider whether by making a requisition u/s 69(2) a creditor sets in motion a process of recovery which is a judicial process which would attract the Law of Limitation. There is a clear provision for adjudication u/s 70(3) of the said Act. This right u/s 70(3) of the said Act. This right u/s 70(3)is not affected by Section 72 of the said Act as was contended before us by the Respondents. Section 72 merely provides that every question arising between the Collector or the authorised officer and the defaulter relating to execution, discharge or satisfaction of a written demand issued under this Act will be determined not by a suit but under the provisions of the said Act. Section 72 does not cover the right of a person making a payment under protest to institute a suit which is expressly provided for u/s 70,Sub-section (3).Looking to the scheme of recovery and refund under Sections 70 and 71, amounts due u/s 71 are those amounts which the creditor could have recovered had he filed a suit.
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would be ironic if an Act for speedy recovery is held as enabling a creditor who has delayed recovery beyond the period of limitation to recover such delayed claims.This case turned on the interpretation of Section 20 of the U.P. Buildings (Regulation of Letting, Rent and Eviction)Act, 1972. u/s 20(2)(a) a suit for eviction against a tenant may be instituted on the ground that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. A further opportunity of payment of rent is provided to the tenant u/s 20(4) which provides that if, at the first hearing of the suit, the tenant unconditionally pays r tenders the entire amount of rent and damages due from him together with interest the court may pass an order relieving the tenant against his liability for eviction. The court said that Section 20(4) is meant to give a last opportunity to the tenant to retrieve his position. It confers a benefit on the tenant to avoid a decree of eviction. Hence the entire amount of arrears due would have to be tendered including time barred rent also. This reasoning however, does not have any application to the Kerala Revenue Recovery Act. There is no indication in any of the sections of the said Act that the entire amount due whether time barred or not, can be recovered by resorting to the procedure under the Kerala Revenue Recovery Act.13.- In our view if such a wide interpretation is put on the words amount due under the Kerala Revenue Recovery Act, there is every likelihood of the provisions of the Article 14 being attracted. this Court in the case Director of Industries, U.P. and Others Vs. Deep Chand Agarwal, justified the special procedure for recovery of certain debts under the U.P. Public Moneys (Recovery of Dues)Act, 1965 on the ground that the amount which were advanced by the State or by the financial institutions were for the economic betterment of the people of that State. Speedy recovery of these amounts was necessary so that these amounts was necessary so that these amounts could be re-utilised for the same public purpose. It is doubtful if this public purpose would extend to granting exemption to these claims from the statutes of limitation. The law of limitation itself rests on the foundations of public interest. The courts have expressed at least three reasons for supporting the existence of statutes of limitation; (1)that long dormant claims have more of cruelty than justice in them; (2)that a Defendant might have lost the evidence to disprove a stale claim; and (3)that persons with good causes of action should pursue them with reasonable diligence. (See Halsbury 4th Edn. Vol.28 para.605), In Nav Rattanmal and Others Vs. The State of Rajasthan, , the Statutes of Limitation have been considered as Statutes of Repose and statutes of Peace. The generally accepted basis for such statutes is that they are designed to effectuate a beneficent public purpose. Whether public purpose of speedy recovery would outweigh public purpose behind a statute of limitation is a moot point. But we need not examine this aspect any further in view of our interpretation of the words amounts due in Section 71.15. There is no question, however, in the present case of any payment voluntarily made by a debtor being adjusted by his creditor against a time barred debt. The provisions in the present case are statutory provisions for coercive recovery of amounts due, Although the necessity of filing a suit by a creditor is avoided, the extent of the claim which is legally recoverable is not thereby enlarged. u/s 70(2) of the Kerala Revenue Recovery Act the right of a debtor to file a suit for refund is expressly preserved. Instead of the bank or the financial institution filing a suit which is defended by the debtor, the creditor first recovers and then defends his recovery in a suit filed by the debtor. The rights of the parties are not thereby enlarged. The process of recovery is different. An Act must expressly provide for such enlargement of claims which are legally recoverable, before it can be interpreted as extending to the recovery of those amounts which have ceased to be legally recoverable on the date when recovery proceedings are undertaken. Under the Kerala Revenue Recovery Act such process of recovery would start with a written requisition issued in the prescribed form by the creditor to the collector of the District as prescribed u/s 69(2) of the said Act. Therefore, all claims which are legally recoverable and are not time barred on that date can be recovered under the Kerala Revenue Recovery Act.16. In view of the interpretation which we have put on Section 71 of the Kerala Revenue Recovery Act it is not necessary for us to consider whether by making a requisition u/s 69(2) a creditor sets in motion a process of recovery which is a judicial process which would attract the Law of Limitation. There is a clear provision for adjudication u/s 70(3) of the said Act. This right u/s 70(3) of the said Act. This right u/s 70(3)is not affected by Section 72 of the said Act as was contended before us by the Respondents. Section 72 merely provides that every question arising between the Collector or the authorised officer and the defaulter relating to execution, discharge or satisfaction of a written demand issued under this Act will be determined not by a suit but under the provisions of the said Act. Section 72 does not cover the right of a person making a payment under protest to institute a suit which is expressly provided for u/s 70,Sub-section (3).Looking to the scheme of recovery and refund under Sections 70 and 71, amounts due u/s 71 are those amounts which the creditor could have recovered had he filed a suit.
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SUDARSAN PUHAN Vs. JAYANTA KUMAR MOHANTY AND ANR | appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law. 30. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India and Anr. v. Emmsons International Ltd. and Anr., (2011) 12 SCC 174 and Uttar Pradesh State Road Transport Corporation v. Mamta and Ors. (2016) 4 SCC 172 . 31. An appeal Under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Co. Ltd. v. Naresh Kumar and Ors. ((2000) 10 SCC 198 and State of Punjab and Anr. v. Navdeep Kuur and Ors. (2004) 13 SCC 680]. 32. As observed supra, as a first Appellate Court, it was the duty of the High Court to have decided the appeals keeping in view the requirements of Order XX Rule 4(2) read with Order XLI Rule 31 of the Code which requires that judgment/order shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. 33. Coming now to the facts of the case at hand, we consider it appropriate to reproduce the order of the High Court infra: Considering the submissions made by the learned Counsel for the parties and keeping in view the quantum of compensation amount awarded and the basis on which the same has been arrived at I feel, the interest of justice would be best served if the awarded compensation amount of Rs. 24,62,065/- is modified and reduced to Rs. 20,00,000/- which is payable to the claimant along with the awarded interest. The impugned award is modified to the said extent. The Appellant-Insurance Company is directed to deposit the modified compensation amount of Rs. 20,00,000/- along with awarded interest with the learned Tribunal within six weeks hence. On deposit of the amount, the same shall be disbursed to the claimant proportionately, as per the direction of the learned Tribunal given in the impugned award. 34. Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation from Rs. 24,62,065/- to Rs. 20,00,000/-. 35. The High Court only observed Considering the submissions of the learned Counsel for the parties and I feel that compensation should have been awarded as Rs. 20,00,000/- and not Rs. 24,62,065/- . No reasons were given by the High Court as to why the amount of compensation should be reduced from Rs. 24,62,065/- to Rs. 20,00,000/- and why it cannot be enhanced. Since the Appellant-claimant had also filed appeal for enhancement of the compensation, the entire controversy was again open for decision before the High Court at the instance of the claimant and Insurance Company. It was, therefore, necessary for the High Court to assign the reasons for not granting enhancement of compensation and/or its reduction. In the absence of any reasons, we are unable to uphold the impugned orders of the High Court. 36. As mentioned above, the Insurance Company did not choose to file any special leave to appeal in this Court against the impugned order of the High Court. The effect of non-filing of appeal is that the Insurance Company has in principle accepted the High Courts order. 37. This Court having allowed the claimants appeal and setting aside the impugned order, it results in dismissal of the appeal filed by the Insurance Company (M.A.C.A. No. 839 of 2014) and allowing of the appeal (M.A.C.A. No. 690/2014) filed by the claimant. Had the Insurance Company filed special leave to appeal against the impugned order in this Court seeking further reduction in the compensation awarded by the High Court like what the Insurance Company did when they had filed appeal before the High Court questioning inter alia the quantum of compensation being on higher side, the Insurance Company too would have been entitled to prosecute their appeal on merits after remand before the High Court in terms of this order. It was, however, not done by the Insurance Company. | 1[ds]20. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned Counsel for the Appellant-claimant21. The powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra31. An appeal Under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Co. Ltd. v. Naresh Kumar and Ors. ((2000) 10 SCC 198 and State of Punjab and Anr. v. Navdeep Kuur and Ors. (2004) 13 SCC 680]32. As observed supra, as a first Appellate Court, it was the duty of the High Court to have decided the appeals keeping in view the requirements of Order XX Rule 4(2) read with Order XLI Rule 31 of the Code which requires that judgment/order shall contain a concise statement of the case, points for determination, decisions thereon and the reasons34. Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation from Rs. 24,62,065/- to Rs. 20,00,000/-35. The High Court only observed Considering the submissions of the learned Counsel for the parties and I feel that compensation should have been awarded as Rs. 20,00,000/- and not Rs. 24,62,065/- . No reasons were given by the High Court as to why the amount of compensation should be reduced from Rs. 24,62,065/- to Rs. 20,00,000/- and why it cannot be enhanced. Since the Appellant-claimant had also filed appeal for enhancement of the compensation, the entire controversy was again open for decision before the High Court at the instance of the claimant and Insurance Company. It was, therefore, necessary for the High Court to assign the reasons for not granting enhancement of compensation and/or its reduction. In the absence of any reasons, we are unable to uphold the impugned orders of the High Court36. As mentioned above, the Insurance Company did not choose to file any special leave to appeal in this Court against the impugned order of the High Court. The effect of non-filing of appeal is that the Insurance Company has in principle accepted the High Courts order37. This Court having allowed the claimants appeal and setting aside the impugned order, it results in dismissal of the appeal filed by the Insurance Company (M.A.C.A. No. 839 of 2014) and allowing of the appeal (M.A.C.A. No. 690/2014) filed by the claimant. Had the Insurance Company filed special leave to appeal against the impugned order in this Court seeking further reduction in the compensation awarded by the High Court like what the Insurance Company did when they had filed appeal before the High Court questioning inter alia the quantum of compensation being on higher side, the Insurance Company too would have been entitled to prosecute their appeal on merits after remand before the High Court in terms of this order. It was, however, not done by the Insurance Company. | 1 | 3,496 | 677 | ### Instruction:
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appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law. 30. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India and Anr. v. Emmsons International Ltd. and Anr., (2011) 12 SCC 174 and Uttar Pradesh State Road Transport Corporation v. Mamta and Ors. (2016) 4 SCC 172 . 31. An appeal Under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Co. Ltd. v. Naresh Kumar and Ors. ((2000) 10 SCC 198 and State of Punjab and Anr. v. Navdeep Kuur and Ors. (2004) 13 SCC 680]. 32. As observed supra, as a first Appellate Court, it was the duty of the High Court to have decided the appeals keeping in view the requirements of Order XX Rule 4(2) read with Order XLI Rule 31 of the Code which requires that judgment/order shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. 33. Coming now to the facts of the case at hand, we consider it appropriate to reproduce the order of the High Court infra: Considering the submissions made by the learned Counsel for the parties and keeping in view the quantum of compensation amount awarded and the basis on which the same has been arrived at I feel, the interest of justice would be best served if the awarded compensation amount of Rs. 24,62,065/- is modified and reduced to Rs. 20,00,000/- which is payable to the claimant along with the awarded interest. The impugned award is modified to the said extent. The Appellant-Insurance Company is directed to deposit the modified compensation amount of Rs. 20,00,000/- along with awarded interest with the learned Tribunal within six weeks hence. On deposit of the amount, the same shall be disbursed to the claimant proportionately, as per the direction of the learned Tribunal given in the impugned award. 34. Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation from Rs. 24,62,065/- to Rs. 20,00,000/-. 35. The High Court only observed Considering the submissions of the learned Counsel for the parties and I feel that compensation should have been awarded as Rs. 20,00,000/- and not Rs. 24,62,065/- . No reasons were given by the High Court as to why the amount of compensation should be reduced from Rs. 24,62,065/- to Rs. 20,00,000/- and why it cannot be enhanced. Since the Appellant-claimant had also filed appeal for enhancement of the compensation, the entire controversy was again open for decision before the High Court at the instance of the claimant and Insurance Company. It was, therefore, necessary for the High Court to assign the reasons for not granting enhancement of compensation and/or its reduction. In the absence of any reasons, we are unable to uphold the impugned orders of the High Court. 36. As mentioned above, the Insurance Company did not choose to file any special leave to appeal in this Court against the impugned order of the High Court. The effect of non-filing of appeal is that the Insurance Company has in principle accepted the High Courts order. 37. This Court having allowed the claimants appeal and setting aside the impugned order, it results in dismissal of the appeal filed by the Insurance Company (M.A.C.A. No. 839 of 2014) and allowing of the appeal (M.A.C.A. No. 690/2014) filed by the claimant. Had the Insurance Company filed special leave to appeal against the impugned order in this Court seeking further reduction in the compensation awarded by the High Court like what the Insurance Company did when they had filed appeal before the High Court questioning inter alia the quantum of compensation being on higher side, the Insurance Company too would have been entitled to prosecute their appeal on merits after remand before the High Court in terms of this order. It was, however, not done by the Insurance Company.
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20. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned Counsel for the Appellant-claimant21. The powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra31. An appeal Under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Co. Ltd. v. Naresh Kumar and Ors. ((2000) 10 SCC 198 and State of Punjab and Anr. v. Navdeep Kuur and Ors. (2004) 13 SCC 680]32. As observed supra, as a first Appellate Court, it was the duty of the High Court to have decided the appeals keeping in view the requirements of Order XX Rule 4(2) read with Order XLI Rule 31 of the Code which requires that judgment/order shall contain a concise statement of the case, points for determination, decisions thereon and the reasons34. Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation from Rs. 24,62,065/- to Rs. 20,00,000/-35. The High Court only observed Considering the submissions of the learned Counsel for the parties and I feel that compensation should have been awarded as Rs. 20,00,000/- and not Rs. 24,62,065/- . No reasons were given by the High Court as to why the amount of compensation should be reduced from Rs. 24,62,065/- to Rs. 20,00,000/- and why it cannot be enhanced. Since the Appellant-claimant had also filed appeal for enhancement of the compensation, the entire controversy was again open for decision before the High Court at the instance of the claimant and Insurance Company. It was, therefore, necessary for the High Court to assign the reasons for not granting enhancement of compensation and/or its reduction. In the absence of any reasons, we are unable to uphold the impugned orders of the High Court36. As mentioned above, the Insurance Company did not choose to file any special leave to appeal in this Court against the impugned order of the High Court. The effect of non-filing of appeal is that the Insurance Company has in principle accepted the High Courts order37. This Court having allowed the claimants appeal and setting aside the impugned order, it results in dismissal of the appeal filed by the Insurance Company (M.A.C.A. No. 839 of 2014) and allowing of the appeal (M.A.C.A. No. 690/2014) filed by the claimant. Had the Insurance Company filed special leave to appeal against the impugned order in this Court seeking further reduction in the compensation awarded by the High Court like what the Insurance Company did when they had filed appeal before the High Court questioning inter alia the quantum of compensation being on higher side, the Insurance Company too would have been entitled to prosecute their appeal on merits after remand before the High Court in terms of this order. It was, however, not done by the Insurance Company.
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Severn Trent Water Purification, Inc Vs. Chloro Controls (India) P.Ltd. | that looking to the company petition in its entirety and also the grounds and prayers, it is clear that the petition was not presented by Severn Trent as Creditor of the Company but as a Contributory. The contention as to Creditor was raised belatedly for the first time in argument before the Division Bench which was an afterthought. This is apparent from the observations of the Division Bench in the impugned order in para 54 extracted earlier. It was, therefore, submitted that no such argument could have been permitted and to that extent, the order passed by the Division Bench of the High Court deserves to be interfered with. 67. We have given anxious consideration to the above submission. In our opinion, however, it cannot be said that the Division Bench was in error in passing the impugned order and remitting the matter to the learned Company Judge to consider the question as to maintainability of company petition filed by Severn Trent as a Creditor of the Company. In this connection, our attention has been invited by the learned counsel for Severn Trent to the company petition. In para 16 of the petition, it was stated by Severn Trent that it was also a Creditor of the Company and admitted sums owed by the Company to Severn Trent had not been paid. It was further stated that the Board of Directors of the Company and the Managing Director had acknowledged the Companys liability to Severn Trent in various communications and Board Meetings. It was further stated that in the circumstances, Severn Trent was constrained to issue legal notice on August 4, 2004 demanding payment of all outstanding dues. A copy of the demand notice was also annexed to the company petition. According to Severn Trent, total amount due and payable by the Company to Severn Trent as on July 31, 2004 came to US $ 575113.29. In ground (i) also, it was the case of the Company that there was intentional refusal by Mr. Kocha to allow the Company to pay its admitted debts to Severn Trent. In paragraph 41, it was stated by Severn Trent that it was just, equitable, necessary and in the interest of justice and in order to secure the dues of the petitioner that Provisional Liquidator should be appointed. 68. It is thus clear that though the case put forward by Severn Trent in the winding up petition was as a contributory, the factum of the Company being Debtor and Severn Trent being Creditor and in spite of dues being admitted by the Company, there was non payment on the part of the Company had been mentioned in the petition. The learned counsel for Severn Trent appears to be right that in view of the finding by the learned Company Judge that the petition instituted by Severn Trent as a contributory was maintainable, it was no more necessary for the learned Company Judge to consider the question whether the company petition filed by Severn Trent was maintainable in the capacity as a Creditor. 69. It was then contended by the learned counsel for the Company that the ground for winding up of Company under clause (f) of Section 433 was not available to Severn Trent in case it had presented a petition as a Creditor of the Company. In this connection, our attention was invited to certain decisions. In our opinion, it would not be appropriate to express any opinion one way or the other since we are of the view that the Division Bench of the High Court was not wrong in allowing Severn Trent to argue that point before the learned Company Judge as that point did not arise before him earlier. We may, however, hasten to add that we may not be understood to have recorded a finding that the petition presented by Severn Trent is maintainable. We clarify that as and when the matter will be taken up by the learned Company Judge, it will be open to the Company to raise a contention that no such petition as presented is maintainable in the capacity as a Creditor. 70. Question No. 2 is answered accordingly. 3. Whether a winding up petition filed by Severn Trent is liable to be dismissed at the threshold on the ground of premature advertisement by Severn Trent without the order of the Court as required by law? 71. So far as the third question is concerned, neither the learned Company Judge, nor the Division Bench has decided it. Before the learned Company Judge, no such contention appears to have been advanced by the Company. Before the Division Bench, it was argued that since there was premature advertisement by the Severn Trent without any order from the Company Court, there was abuse of process of the Court by Severn Trent and the petition was liable to be dismissed only on that ground. Before us also, the above contention was reiterated by the learned counsel for the Company and in support thereof, case-law has been cited. The learned counsel for the Severn Trent, however, submitted that the advertisement was qualified, carefully worded and the facts stated therein were accurate. It was essentially a notice to creditors, contributories and other persons intimating about presenting of winding up petition and there was no mala fide intention or oblique motive in issuing the advertisement. We may only state that since the Division Bench of the High Court has remitted the matter to the learned Company Judge and granted liberty to the Company to oppose admission of the Company petition on all available grounds including the ground of premature advertisement, we need not express any opinion one way or the other. As observed by the Division Bench of the High Court, at the time the company petition will be taken up by the Company Judge for admission, it will be open to the Company or contesting respondent to oppose the admission on all grounds available. 72. Question No. 3 is answered accordingly. | 0[ds]19. Bare reading of Section 439 makes it clear that it is couched in positive as well as negative words. Whereas sub-section (1) of the said section permits the presentation of application for winding up of a Company by any person enlisted therein, it clarifies that the said provision is subject to the provision of the said section and, hence, the entire section has to be read with a view to consider the right of a person presenting a petition for winding up of a Company.From the above scheme of the Act, it is abundantly clear that a contributorys right to present a winding up petition must be one either under clause (a) or under clause (b) of sub-section (4) of Section 439. It is nobodys case that clause (a) of Section 439(4) is attracted in the instant case. Hence, Severn Trent can only claim the right to present a winding up petition under clause (b) of sub-section (4) of Section 439 of the Act.. in theinstant case, neither the foreign law was pleaded nor such evidence has been produced to prove merger/amalgamation. But even otherwise, in our considered opinion, Severn Trent cannot be treated as or said to be contributory unless and until the requirements of law i.e. the provisions of Section 439(4)(b) have been complied with. It is not disputed that the name of Severn Trent has not been registered in the Register of the Company and hence, it cannot present a petition for winding up of the Company in the capacity of a contributory.From the above discussion, it is clear that the provisions of the Act must be complied with before presenting a winding up petition under Section 439(4)(b) of the Act. If a person intends to present a petition for winding up of a company as a contributory, he/it has to satisfy the Company Court that his/its case is covered by one of the eventualities contemplated by clause (b) of sub-section (4) of Section 439 of the Act.We must express our inability to uphold the contention of learned counsel. In our judgment, sub-section (4) of Section 439 is a self-contained Code as to presentation of petition by a contributory. A person claiming to be a contributory and presenting a petition for winding up of a Company in that capacity must fulfill the conditions laid down in the said section. Moreover, as observed by us, if there is omission, default or illegal action on the part of the Company in not registering the name of the contributory even though he/it can be said to be a contributory by holding the shares as required by clause (b) of sub-section (4) of Section 439, the law provides a remedy. In the instant case, however, no such course has been adopted by Severn Trent. In the circumstances, in our opinion, it cannot be said that the Division Bench of the High Court was in error in holding that Severn Trent could not be said to be a contributory to present a winding up petition.The above argument weighed with the learned Single Judge and he observed that though Severn Trent was not the person who was originally allotted shares nor its name was registered in the register of the Company but the expression or have devolved on him through the death of former holder would get attracted inasmuch as upon merger/amalgamation of Capital Controls (Delaware) Company, Inc. in Severn Trent, the former Company i.e. former holder can be said to have been met with death and the shares held by the said Company could be said to have devolved on Severn Trent. If it is so, obviously, a petition filed by Severn Trent as a contributory was maintainable.In the context of Company Law, winding up of a body corporate is not the same thing as or equivalent to death of a member. An individual and a body corporate expressly have been treated separately which is clear from Sections 430, 431 and 432 of the Act. Under the scheme of the Act, every creditor may present a petition for winding up of a company, but every contributory cannot. A contributory to be eligible and qualified to present a winding up petition must be covered by sub-section (4) of Section 439 of the Act and the Legislature, in its wisdom, excluded certain categories of persons from being entitled to present a petition for winding up as contributory. As already held by us earlier, the provision is exhaustive in nature and its sweep cannot be extended by judicial interpretation. Upholding of argument of Severn Trent and conceding the right to present a petition for winding up of a Company though it cannot be said to be a contributory would, in our judgment, result in re-writing of the provision. A Court of law cannot adopt a construction which would result in amendment of a statute. The contention of the learned counsel for Severn Trent, therefore, must be rejected.For the aforesaid reasons, we answer question No.1 in the negative and hold that a winding up petition filed by Severn Trent in the capacity as a contributory is not maintainable.So far as second question is concerned, reading of the order passed by the learned Company Judge makes it clear that no such argument was raised on behalf of Severn Trent presumably because there was no occasion for such argument inasmuch as according to the learned Company Judge, Severn Trent could be said to be a contributory within the meaning of Section 439 (4)(b) of the Act and a petition presented by Severn Trent in that capacity was tenable. Since the order passed by the Company Judge was challenged by the Company before the Division Bench and the Division Bench upheld the objection of the Company and reached a conclusion that the learned Company Judge was wrong in treating Severn Trent as contributory and granting it locus to present a petition for winding up of Company, that an alternative argument was raised on behalf of Severn Trent that Severn Trent was also a Creditor of the Company and in that capacity i.in the capacity of aCreditor, the petition for winding up of the Company was maintainable.We have given anxious consideration to the above submission. In our opinion, however, it cannot be said that the Division Bench was in error in passing the impugned order and remitting the matter to the learned Company Judge to consider the question as to maintainability of company petition filed by Severn Trent as a Creditor of the Company. In this connection, our attention has been invited by the learned counsel for Severn Trent to the company petition. In para 16 of the petition, it was stated by Severn Trent that it was also a Creditor of the Company and admitted sums owed by the Company to Severn Trent had not been paid. It was further stated that the Board of Directors of the Company and the Managing Director had acknowledged the Companys liability to Severn Trent in various communications and Board Meetings. It was further stated that in the circumstances, Severn Trent was constrained to issue legal notice on August 4, 2004 demanding payment of all outstanding dues. A copy of the demand notice was also annexed to the company petition. According to Severn Trent, total amount due and payable by the Company to Severn Trent as on July 31, 2004 came to US $ 575113.29. In ground (i) also, it was the case of the Company that there was intentional refusal by Mr. Kocha to allow the Company to pay its admitted debts to Severn Trent. In paragraph 41, it was stated by Severn Trent that it was just, equitable, necessary and in the interest of justice and in order to secure the dues of the petitioner that Provisional Liquidator should be appointed.So far as the third question is concerned, neither the learned Company Judge, nor the Division Bench has decided it. Before the learned Company Judge, no such contention appears to have been advanced by the Company. Before the Division Bench, it was argued that since there was premature advertisement by the Severn Trent without any order from the Company Court, there was abuse of process of the Court by Severn Trent and the petition was liable to be dismissed only on that ground. Before us also, the above contention was reiterated by the learned counsel for the Company and in support thereof, case-law has been cited. The learned counsel for the Severn Trent, however, submitted that the advertisement was qualified, carefully worded and the facts stated therein were accurate. It was essentially a notice to creditors, contributories and other persons intimating about presenting of winding up petition and there was no mala fide intention or oblique motive in issuing the advertisement. We may only state that since the Division Bench of the High Court has remitted the matter to the learned Company Judge and granted liberty to the Company to oppose admission of the Company petition on all available grounds including the ground of premature advertisement, we need not express any opinion one way or the other. As observed by the Division Bench of the High Court, at the time the company petition will be taken up by the Company Judge for admission, it will be open to the Company or contesting respondent to oppose the admission on all grounds available.It is thus clear that though the case put forward by Severn Trent in the winding up petition was as a contributory, the factum of the Company being Debtor and Severn Trent being Creditor and in spite of dues being admitted by the Company, there was non payment on the part of the Company had been mentioned in the petition. The learned counsel for Severn Trent appears to be right that in view of the finding by the learned Company Judge that the petition instituted by Severn Trent as a contributory was maintainable, it was no more necessary for the learned Company Judge to consider the question whether the company petition filed by Severn Trent was maintainable in the capacity as aour opinion, it would not be appropriate to express any opinion one way or the other since we are of the view that the Division Bench of the High Court was not wrong in allowing Severn Trent to argue that point before the learned Company Judge as that point did not arise before him earlier. We may, however, hasten to add that we may not be understood to have recorded a finding that the petition presented by Severn Trent is maintainable. We clarify that as and when the matter will be taken up by the learned Company Judge, it will be open to the Company to raise a contention that no such petition as presented is maintainable in the capacity as a | 0 | 11,291 | 1,981 | ### Instruction:
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that looking to the company petition in its entirety and also the grounds and prayers, it is clear that the petition was not presented by Severn Trent as Creditor of the Company but as a Contributory. The contention as to Creditor was raised belatedly for the first time in argument before the Division Bench which was an afterthought. This is apparent from the observations of the Division Bench in the impugned order in para 54 extracted earlier. It was, therefore, submitted that no such argument could have been permitted and to that extent, the order passed by the Division Bench of the High Court deserves to be interfered with. 67. We have given anxious consideration to the above submission. In our opinion, however, it cannot be said that the Division Bench was in error in passing the impugned order and remitting the matter to the learned Company Judge to consider the question as to maintainability of company petition filed by Severn Trent as a Creditor of the Company. In this connection, our attention has been invited by the learned counsel for Severn Trent to the company petition. In para 16 of the petition, it was stated by Severn Trent that it was also a Creditor of the Company and admitted sums owed by the Company to Severn Trent had not been paid. It was further stated that the Board of Directors of the Company and the Managing Director had acknowledged the Companys liability to Severn Trent in various communications and Board Meetings. It was further stated that in the circumstances, Severn Trent was constrained to issue legal notice on August 4, 2004 demanding payment of all outstanding dues. A copy of the demand notice was also annexed to the company petition. According to Severn Trent, total amount due and payable by the Company to Severn Trent as on July 31, 2004 came to US $ 575113.29. In ground (i) also, it was the case of the Company that there was intentional refusal by Mr. Kocha to allow the Company to pay its admitted debts to Severn Trent. In paragraph 41, it was stated by Severn Trent that it was just, equitable, necessary and in the interest of justice and in order to secure the dues of the petitioner that Provisional Liquidator should be appointed. 68. It is thus clear that though the case put forward by Severn Trent in the winding up petition was as a contributory, the factum of the Company being Debtor and Severn Trent being Creditor and in spite of dues being admitted by the Company, there was non payment on the part of the Company had been mentioned in the petition. The learned counsel for Severn Trent appears to be right that in view of the finding by the learned Company Judge that the petition instituted by Severn Trent as a contributory was maintainable, it was no more necessary for the learned Company Judge to consider the question whether the company petition filed by Severn Trent was maintainable in the capacity as a Creditor. 69. It was then contended by the learned counsel for the Company that the ground for winding up of Company under clause (f) of Section 433 was not available to Severn Trent in case it had presented a petition as a Creditor of the Company. In this connection, our attention was invited to certain decisions. In our opinion, it would not be appropriate to express any opinion one way or the other since we are of the view that the Division Bench of the High Court was not wrong in allowing Severn Trent to argue that point before the learned Company Judge as that point did not arise before him earlier. We may, however, hasten to add that we may not be understood to have recorded a finding that the petition presented by Severn Trent is maintainable. We clarify that as and when the matter will be taken up by the learned Company Judge, it will be open to the Company to raise a contention that no such petition as presented is maintainable in the capacity as a Creditor. 70. Question No. 2 is answered accordingly. 3. Whether a winding up petition filed by Severn Trent is liable to be dismissed at the threshold on the ground of premature advertisement by Severn Trent without the order of the Court as required by law? 71. So far as the third question is concerned, neither the learned Company Judge, nor the Division Bench has decided it. Before the learned Company Judge, no such contention appears to have been advanced by the Company. Before the Division Bench, it was argued that since there was premature advertisement by the Severn Trent without any order from the Company Court, there was abuse of process of the Court by Severn Trent and the petition was liable to be dismissed only on that ground. Before us also, the above contention was reiterated by the learned counsel for the Company and in support thereof, case-law has been cited. The learned counsel for the Severn Trent, however, submitted that the advertisement was qualified, carefully worded and the facts stated therein were accurate. It was essentially a notice to creditors, contributories and other persons intimating about presenting of winding up petition and there was no mala fide intention or oblique motive in issuing the advertisement. We may only state that since the Division Bench of the High Court has remitted the matter to the learned Company Judge and granted liberty to the Company to oppose admission of the Company petition on all available grounds including the ground of premature advertisement, we need not express any opinion one way or the other. As observed by the Division Bench of the High Court, at the time the company petition will be taken up by the Company Judge for admission, it will be open to the Company or contesting respondent to oppose the admission on all grounds available. 72. Question No. 3 is answered accordingly.
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would result in amendment of a statute. The contention of the learned counsel for Severn Trent, therefore, must be rejected.For the aforesaid reasons, we answer question No.1 in the negative and hold that a winding up petition filed by Severn Trent in the capacity as a contributory is not maintainable.So far as second question is concerned, reading of the order passed by the learned Company Judge makes it clear that no such argument was raised on behalf of Severn Trent presumably because there was no occasion for such argument inasmuch as according to the learned Company Judge, Severn Trent could be said to be a contributory within the meaning of Section 439 (4)(b) of the Act and a petition presented by Severn Trent in that capacity was tenable. Since the order passed by the Company Judge was challenged by the Company before the Division Bench and the Division Bench upheld the objection of the Company and reached a conclusion that the learned Company Judge was wrong in treating Severn Trent as contributory and granting it locus to present a petition for winding up of Company, that an alternative argument was raised on behalf of Severn Trent that Severn Trent was also a Creditor of the Company and in that capacity i.in the capacity of aCreditor, the petition for winding up of the Company was maintainable.We have given anxious consideration to the above submission. In our opinion, however, it cannot be said that the Division Bench was in error in passing the impugned order and remitting the matter to the learned Company Judge to consider the question as to maintainability of company petition filed by Severn Trent as a Creditor of the Company. In this connection, our attention has been invited by the learned counsel for Severn Trent to the company petition. In para 16 of the petition, it was stated by Severn Trent that it was also a Creditor of the Company and admitted sums owed by the Company to Severn Trent had not been paid. It was further stated that the Board of Directors of the Company and the Managing Director had acknowledged the Companys liability to Severn Trent in various communications and Board Meetings. It was further stated that in the circumstances, Severn Trent was constrained to issue legal notice on August 4, 2004 demanding payment of all outstanding dues. A copy of the demand notice was also annexed to the company petition. According to Severn Trent, total amount due and payable by the Company to Severn Trent as on July 31, 2004 came to US $ 575113.29. In ground (i) also, it was the case of the Company that there was intentional refusal by Mr. Kocha to allow the Company to pay its admitted debts to Severn Trent. In paragraph 41, it was stated by Severn Trent that it was just, equitable, necessary and in the interest of justice and in order to secure the dues of the petitioner that Provisional Liquidator should be appointed.So far as the third question is concerned, neither the learned Company Judge, nor the Division Bench has decided it. Before the learned Company Judge, no such contention appears to have been advanced by the Company. Before the Division Bench, it was argued that since there was premature advertisement by the Severn Trent without any order from the Company Court, there was abuse of process of the Court by Severn Trent and the petition was liable to be dismissed only on that ground. Before us also, the above contention was reiterated by the learned counsel for the Company and in support thereof, case-law has been cited. The learned counsel for the Severn Trent, however, submitted that the advertisement was qualified, carefully worded and the facts stated therein were accurate. It was essentially a notice to creditors, contributories and other persons intimating about presenting of winding up petition and there was no mala fide intention or oblique motive in issuing the advertisement. We may only state that since the Division Bench of the High Court has remitted the matter to the learned Company Judge and granted liberty to the Company to oppose admission of the Company petition on all available grounds including the ground of premature advertisement, we need not express any opinion one way or the other. As observed by the Division Bench of the High Court, at the time the company petition will be taken up by the Company Judge for admission, it will be open to the Company or contesting respondent to oppose the admission on all grounds available.It is thus clear that though the case put forward by Severn Trent in the winding up petition was as a contributory, the factum of the Company being Debtor and Severn Trent being Creditor and in spite of dues being admitted by the Company, there was non payment on the part of the Company had been mentioned in the petition. The learned counsel for Severn Trent appears to be right that in view of the finding by the learned Company Judge that the petition instituted by Severn Trent as a contributory was maintainable, it was no more necessary for the learned Company Judge to consider the question whether the company petition filed by Severn Trent was maintainable in the capacity as aour opinion, it would not be appropriate to express any opinion one way or the other since we are of the view that the Division Bench of the High Court was not wrong in allowing Severn Trent to argue that point before the learned Company Judge as that point did not arise before him earlier. We may, however, hasten to add that we may not be understood to have recorded a finding that the petition presented by Severn Trent is maintainable. We clarify that as and when the matter will be taken up by the learned Company Judge, it will be open to the Company to raise a contention that no such petition as presented is maintainable in the capacity as a
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RELIANCE LIFE INSURANCE CO. LTD. Vs. REKHABEN NARESHBHAI RATHOD | finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra) "there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance". Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.27. In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to enquiry. 28. Learned counsel appearing on behalf of the insurer submitted that where a warranty has been furnished by the proposer in terms of a declaration in the proposal form, the requirement of the information being material should not be insisted upon and the insurer would be at liberty to avoid its liability irrespective of whether the information which is sought is material or otherwise. For the purposes of the present case, it is sufficient for this Court to hold in the present facts that the information which was sought by the insurer was indeed material to its decision as to whether or not to undertake a risk. The proposer was aware of the fact, while making a declaration, that if any statements were untrue or inaccurate or if any matter material to the proposal was not disclosed, the insurer may cancel the contract and forfeit the premium. MacGillivray on Insurance Law formulates the principle thus: "… In more recent cases it has been held that all-important element in such a declaration is the phrase which makes the declaration the "basis of contract". These words alone show that the proposer is warranting the truth of his statements, so that in the event of a breach this warranty, the insurer can repudiate the liability on the policy irrespective of issues of materiality" " 29. We are not impressed with the submission that the proposer was unaware of the contents of the form that he was required to fill up or that in assigning such a response to a third party, he was absolved of the consequence of appending his signatures to the proposal. The proposer duly appended his signature to the proposal form and the grant of the insurance cover was on the basis of the statements contained in the proposal form. Barely two months before the contract of insurance was entered into with the appellant, the insured had obtained another insurance cover for his life in the sum of Rs 11 lakhs. We are of the view that the failure of the insured to disclose the policy of insurance obtained earlier in the proposal form entitled the insurer to repudiate the claim under the policy. 30. We may note at this stage, that the view which was taken by the NCDRC in the present case was contrary to its earlier decision in Vidya Devi (supra). In that case, the NCDRC upheld the repudiation of an insurance claim under a life insurance cover by the LIC on the ground of a non-disclosure of previous insurance policies. In taking this view, the NCDRC relied on its earlier decision in Chandarana (supra). Subsequently in Sahara India (supra), the NCDRC took a contrary view. Having noticed its earlier decisions, the NCDRC did not even attempt to distinguish them. Indeed, the earlier decisions were binding on the NCDRC. This line of approach on the part of the NCDRC must be disapproved. 31. Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted. A similar argument was correctly rejected in a decision of a Division Bench of the Mysore High Court in VK Srinivasa Setty v Messers Premier Life and General Insurance Co Ltd AIR 1958 Mys 53 where it was held: " Now it is clear that a person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising therefrom by pleading that he chose to sign the proposal containing such statement without either reading or understanding it. That is because, in filling up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form.If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer. Further, apart from any question of imputed knowledge, the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading or understanding it, it being irrelevant to consider how the inaccuracy arose if he has contracted, as the plaintiff has done in this case that his written answers shall be accurate." | 1[ds]11. While considering the rival submissions, it is necessary to preface our analysis with reference to two basic facts. The first pertains to the nature of the disclosure made by the insured in the proposal form. The second relates to the ground for repudiation of the claim. The proposal form required a specific disclosure of the lifeinsurance policies held by the proposer and all proposals submitted to life insurance companies, including the appellant. The proposer was called upon to furnish a full disclosure of covers for life insurance, critical illness or accident benefit under which the proposer was currently insured or for which the proposer had applied. The answer to this was given in the negative. Furthermore, item 17 of the proposal form required a detailed disclosure of the other insurance policies held by the proposer including the sum assured. A disclosure was also required of the status of pending proposals. These were answered with ae, following the statement that the proposer did not hold any other insurance cover. The fact that two months prior to the policy which was obtained from the appellant on 16 September 2009, the insured had obtained a policy from Max New York Life Insurance Co Ltd in the amount of Rs 11 lakhs has now been admitted. There was evidently a nondisclosure of the earlier cover for life insurance held by the insured. The second aspect of the case which merits to be noticed is that the repudiation of the claim on 30 August 2011 was on the ground that there was a non-disclosure of a material fact on the part of the insured in not disclosing that he held a prior insurance cover. The insurer stated that if this was to be disclosed in the proposal form, it would have called for and evaluated financial income documents together with the terms for the acceptance of the cover. Though the insurer has subsequently, during the pendency of the proceedings made an effort to sustain its repudiation on the ground that the insured had a pre-existing illness which was not disclosed, it is necessary to record that this was not pressed in aid during the hearing before this Court.12. The repudiation in the present case was within a period of two years from the commencement of the insurance cover. This assumes significance because of the provisions of Section 45 of the Insurance Act 1932, as they stood at the materialNo policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected be called in question by an insurer on the ground that statement made in the proposal or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.Section 45 stipulates restrictions upon the insurer calling into question a policy of life insurance after the expiry of two years from the date on which it was effected . After two years have elapsed the insurer cannot call it into question on the ground that: (i) a statement made in the proposal; or (ii) a statement made in any report of a medical officer, referee or friend of the insured; or (iii) a statement made in any other document leading to the issuance of the policy was inaccurate or false, unless certain conditions are fulfilled. Those conditions are that : (a) such a statement was on a material matter; or (b) the statement suppressed facts which were material to disclose and that (i) they were fraudulently made by the policy holder; and (ii) the policy holder knew at the time of making it that the statements were false or suppressed facts whichwere material to disclose. The cumulative effect of Section 45 is to restrict the right of the insurer to repudiate a policy of life insurance after a period of two years of the date on which the policy was effected. Beyond two years, the burden lies on the insurer to establish the inaccuracy or falsity of a statement on a material matter or the suppression of material facts. Moreover, in addition to this requirement, the insurer has to establish that this non-disclosure or, as the case may be, the submission of inaccurate or false information was fraudulently made and that the policy holder while making it knew of the falsity of the statement or of the suppression of facts which were material to disclose. 14. Section 45 curtails the common law rights of the insurer after two years have elapsed since the cover for life insurance was effected. In the present case, the Court is called upon to determine the nature of the authority of the insurer where a policy of life insurance or a claim under it is sought to be repudiated within two years. The insurer submits that within a period of two years, its right to repudiate theclaim is untrammelled and is not subject to the conditions which apply beyond two years. On the other hand, the submission of the respondent is that even within a period of two years, a non-disclosure or suppression must be of a material fact to justify a repudiation. In other words, before a non-disclosure can be utilized as a ground to repudiate, it must pertain to a realm where it can be found that the nondisclosure was of a circumstance or fact which would have affected the decision of the insurer regarding whether or not to grant a cover.Regulation 2(d) specifically defines the expressionas a form which is filled by a proposer for insurance to furnish all material information required by the insurer in respect of a risk. The purpose of the disclosure is to enable the insurer to decide whether to accept or decline to undertake a risk. The disclosures are also intended to enable the insurer, in the event that the risk is accepted, to determine the rates, terms and conditions on which a cover is to be granted. The explanation defines the expressionto mean and includeimportant essential and relevantfor underwriting the risk to be covered by the insurer. Regulation 4(3) stipulates that while filling up the proposal, the proposer is to be guided by the provisions of Section 45. Where a proposal form is not used, the insurer under Regulation 4(4) is to record the information, confirming it within a stipulated period with the proposer and ought to incorporate the information in the cover note or policy. In respect of information which is not so recorded, the onus of proof lies on the insurer who claims that there was a suppression of material information or that the insured provided misleading or false information on any matter that was material to the grant of the cover.of a fact also depends on the surrounding circumstances and the nature of information sought by the insurer. It covers a failure to disclose vital information which the insurer requires in order to determine firstly, whether or not to assume the risk of insurance, and secondly, if it does accept the risk, upon what terms it should do so. The insurer is better equipped to determine the limits of risk-taking as it deals with the exercise of assessments on a day-to-day basis. In a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not accept the risk is a material fact. If the proposer has knowledge of such fact, she or he is obliged to disclose it particularly while answering questions in the proposal form. An inaccurate answer will entitle the insurer to repudiate because there is a presumption that information sought in the proposal form is material for the purpose of entering into a contract of insurance.26. Contracts of insurance are governed by the principle of utmost good faith. The duty of mutual fair dealing requires all parties to a contract to be fair and open with each other to create and maintain trust between them. In a contract of insurance, the insured can be expected to have information of which she/he has knowledge. This justifies a duty of good faith, leading to a positive duty of disclosure.is standard practice for the insurer to set out in the application a series of specific questions regarding the applicants health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra)is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract ofEach representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.27. In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to enquiry. 28. Learned counsel appearing on behalf of the insurer submitted that where a warranty has been furnished by the proposer in terms of a declaration in the proposal form, the requirement of the information being material should not be insisted upon and the insurer would be at liberty to avoid its liability irrespective of whether the information which is sought is material or otherwise. For the purposes of the present case, it is sufficient for this Court to hold in the present facts that the information which was sought by the insurer was indeed material to its decision as to whether or not to undertake a risk. The proposer was aware of the fact, while making a declaration, that if any statements were untrue or inaccurate or if any matter material to the proposalwas not disclosed, the insurer may cancel the contract and forfeit the premium.We are not impressed with the submission that the proposer was unaware of the contents of the form that he was required to fill up or that in assigning such a response to a third party, he was absolved of the consequence of appending his signatures to the proposal. The proposer duly appended his signature to the proposal form and the grant of the insurance cover was on the basis of the statements contained in the proposal form. Barely two months before the contract of insurance was entered into with the appellant, the insured had obtained another insurance cover for his life in the sum of Rs 11 lakhs. We are of the view that the failure of the insured to disclose the policy of insurance obtained earlier in the proposal form entitled the insurer to repudiate the claim under the policy. 30. We may note at this stage, that the view which was taken by the NCDRC in the present case was contrary to its earlier decision in Vidya Devi (supra). In that case, the NCDRC upheld the repudiation of an insurance claim under a life insurance cover by the LIC on the ground of a non-disclosure of previous insurance policies. In taking this view, the NCDRC relied on its earlier decision in Chandarana (supra). Subsequently in Sahara India (supra), the NCDRC took a contrary view. Having noticed its earlier decisions, the NCDRC did not even attempt to distinguish them. Indeed, the earlier decisions were binding on the NCDRC. This line of approach on the part of the NCDRC must be disapproved. 31. Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted. | 1 | 8,663 | 2,576 | ### 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:
finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra) "there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance". Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.27. In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to enquiry. 28. Learned counsel appearing on behalf of the insurer submitted that where a warranty has been furnished by the proposer in terms of a declaration in the proposal form, the requirement of the information being material should not be insisted upon and the insurer would be at liberty to avoid its liability irrespective of whether the information which is sought is material or otherwise. For the purposes of the present case, it is sufficient for this Court to hold in the present facts that the information which was sought by the insurer was indeed material to its decision as to whether or not to undertake a risk. The proposer was aware of the fact, while making a declaration, that if any statements were untrue or inaccurate or if any matter material to the proposal was not disclosed, the insurer may cancel the contract and forfeit the premium. MacGillivray on Insurance Law formulates the principle thus: "… In more recent cases it has been held that all-important element in such a declaration is the phrase which makes the declaration the "basis of contract". These words alone show that the proposer is warranting the truth of his statements, so that in the event of a breach this warranty, the insurer can repudiate the liability on the policy irrespective of issues of materiality" " 29. We are not impressed with the submission that the proposer was unaware of the contents of the form that he was required to fill up or that in assigning such a response to a third party, he was absolved of the consequence of appending his signatures to the proposal. The proposer duly appended his signature to the proposal form and the grant of the insurance cover was on the basis of the statements contained in the proposal form. Barely two months before the contract of insurance was entered into with the appellant, the insured had obtained another insurance cover for his life in the sum of Rs 11 lakhs. We are of the view that the failure of the insured to disclose the policy of insurance obtained earlier in the proposal form entitled the insurer to repudiate the claim under the policy. 30. We may note at this stage, that the view which was taken by the NCDRC in the present case was contrary to its earlier decision in Vidya Devi (supra). In that case, the NCDRC upheld the repudiation of an insurance claim under a life insurance cover by the LIC on the ground of a non-disclosure of previous insurance policies. In taking this view, the NCDRC relied on its earlier decision in Chandarana (supra). Subsequently in Sahara India (supra), the NCDRC took a contrary view. Having noticed its earlier decisions, the NCDRC did not even attempt to distinguish them. Indeed, the earlier decisions were binding on the NCDRC. This line of approach on the part of the NCDRC must be disapproved. 31. Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted. A similar argument was correctly rejected in a decision of a Division Bench of the Mysore High Court in VK Srinivasa Setty v Messers Premier Life and General Insurance Co Ltd AIR 1958 Mys 53 where it was held: " Now it is clear that a person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising therefrom by pleading that he chose to sign the proposal containing such statement without either reading or understanding it. That is because, in filling up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form.If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer. Further, apart from any question of imputed knowledge, the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading or understanding it, it being irrelevant to consider how the inaccuracy arose if he has contracted, as the plaintiff has done in this case that his written answers shall be accurate."
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fact. If the proposer has knowledge of such fact, she or he is obliged to disclose it particularly while answering questions in the proposal form. An inaccurate answer will entitle the insurer to repudiate because there is a presumption that information sought in the proposal form is material for the purpose of entering into a contract of insurance.26. Contracts of insurance are governed by the principle of utmost good faith. The duty of mutual fair dealing requires all parties to a contract to be fair and open with each other to create and maintain trust between them. In a contract of insurance, the insured can be expected to have information of which she/he has knowledge. This justifies a duty of good faith, leading to a positive duty of disclosure.is standard practice for the insurer to set out in the application a series of specific questions regarding the applicants health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra)is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract ofEach representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.27. In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to enquiry. 28. Learned counsel appearing on behalf of the insurer submitted that where a warranty has been furnished by the proposer in terms of a declaration in the proposal form, the requirement of the information being material should not be insisted upon and the insurer would be at liberty to avoid its liability irrespective of whether the information which is sought is material or otherwise. For the purposes of the present case, it is sufficient for this Court to hold in the present facts that the information which was sought by the insurer was indeed material to its decision as to whether or not to undertake a risk. The proposer was aware of the fact, while making a declaration, that if any statements were untrue or inaccurate or if any matter material to the proposalwas not disclosed, the insurer may cancel the contract and forfeit the premium.We are not impressed with the submission that the proposer was unaware of the contents of the form that he was required to fill up or that in assigning such a response to a third party, he was absolved of the consequence of appending his signatures to the proposal. The proposer duly appended his signature to the proposal form and the grant of the insurance cover was on the basis of the statements contained in the proposal form. Barely two months before the contract of insurance was entered into with the appellant, the insured had obtained another insurance cover for his life in the sum of Rs 11 lakhs. We are of the view that the failure of the insured to disclose the policy of insurance obtained earlier in the proposal form entitled the insurer to repudiate the claim under the policy. 30. We may note at this stage, that the view which was taken by the NCDRC in the present case was contrary to its earlier decision in Vidya Devi (supra). In that case, the NCDRC upheld the repudiation of an insurance claim under a life insurance cover by the LIC on the ground of a non-disclosure of previous insurance policies. In taking this view, the NCDRC relied on its earlier decision in Chandarana (supra). Subsequently in Sahara India (supra), the NCDRC took a contrary view. Having noticed its earlier decisions, the NCDRC did not even attempt to distinguish them. Indeed, the earlier decisions were binding on the NCDRC. This line of approach on the part of the NCDRC must be disapproved. 31. Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted.
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Commissioner of Income Tax, Kerala Vs. Alagappa Textile (Cochin) Limited | Mills Ltd. under cl. 1 of the Agreement to enable it "to manage or run the mill" of the assessee. But simply because powers and functions were given to Kamala Mills Ltd. for the purpose of "managing and running the m ills" of the assessee, it would not follow that Kamala Mills Ltd. was in truth and substance a manager of the assessee within the meaning o f s. 2(24) of the 1956 Act. For this purpose the Agreement will have to be read as a whole and the Court will have to decide that was the true, intention of the parties in entering into such agreement. The two recitals clearly indicate the object with which and the purpose for which the Agreement was entered into. It does appear that the assessee was in financially straightened circumstances and on that account was utterly unable to carry on its business of manufacture and sale of yarn and, therefore, the board of directors were in search of a financier who would make available the necessary finances for the running of the mill as also to take active interest in the business of the assessee and when Kamala Mills Ltd. a greed "to assist the company (assessee) with sufficient finance and manage the mill" belonging to the assessee on terms and conditions that were approved b-y the Board of Directors of the assessee that the Agreement was entered into between the parties; in other words, it is clear that the dominant object with which the Agreement was entered into was that Kamala Mills Ltd. should really act as financier so that the assessee mill could run and since heavy finances were to be procure d by Kamala Mills Ltd. large powers and functions connected with the working of the mill were entrusted to it. This aspect becomes abundantly clear from cl. 16 of the Agreement wherein the parties expressly provided that this Agreement for management was by way of and amounted to an Agency coupled with interest so far as Kamala Mills Ltd. was concerned and, therefore, revocation of the Agreement before the expiry of the five years period was made dependent upon 12 months notice in writing being given by one party to the other and further if such revocation was done by the assessee suitable compensation was made payable to Kamala Mills Ltd. In other words, managerial functions were incidental and had to be entrusted to Kamala Mills because of the financiers role undertaken by it. The large powers and functions entrusted to Kamala Mills Ltd. under the several sub-clauses of cl. 1 of the Agreement do show that management of substantially the whole, if not the whole, of the affairs of the assessee company had been made over to Kamala Mills Ltd. But the crucial question is whether such management was to be done by Kamala Mills Ltd. under "the superintendence, control and direction of the Board of Direct ors" of the assessee and in that behalf cl. 13 of the Agreement which we have quoted above is very eloquent. In terms it provided that so far as the powers conferred and the functions entrusted to Kamala Mills Ltd., were concerned, the Board of Directors shall not exercise or perform the same except by way of general supervision and advice and it was further made clear that the Board of Directors shall not interfere with the discretion of Kamala Mills Ltd. in the exercise o f their functions and powers vested in it by virtue of the Agreement. In other words, the general supervision or advice of the Board of Directors was of such character that the Board had not say whatsoever nor could it interfere with the discretion of Kamala Mills Ltd. in the matter of the exercise of the powers and the discharge of the functions entrusted to Kamala Mills Ltd. under the Agreement. It is thus clear to us that the dominant object of the Agreement was that Kamala Mill s Ltd. should act as financiers of the assessee mill and in the matter of the exercise of its powers and discharge of its functions Kamala Mills Ltd. was never "subject to the superintendence, control or direction" of the Board of directors of the assessee. If this position clearly emerges on true construction of the Agreement in question then it is obvious that Kamala Mills was not acting or working as the "Manager" of the assesses within the meaning of s. 2(24) of the Companies Act , 1956 and as such the illegality of s. 384 of that Act was not attracted. In this view of the matter, the remuneration paid by the assessee to Kamala Mills Ltd.. for the two calendar years 1957 and 1958 relevant to the assessment years 1958-59 and 1959-60 could not be regarded as being in violation of s. 384 of the Companies Act, 1956 and as such the expenditure incurred by way of paying such remuneration would be deductible as business expenditure under s. 10 (2) (xv) of the Income Tax Ac t. 1922.In view of our aforesaid conclusion the aspects whether the assessee had disputed its liability to pay such remuneration to Kamala Mills Ltd. Or had filed a suit at the instance of the Company Law Board to recover it back from Kamala Mills Ltd. Or had obtained a decree in that behalf against Kamala Mills Ltd. become irrelevant. However, we would like to place on record the fact that the decree obtained by the assessees against Kamala Mills Ltd. has been reversed or se t aside in appeal by the Kerala High Court-a fact which was brought to our notice by the Advocate-on- Record for the assessee communicated to him by his client in a letter dated 22nd August, 1979. However, even 7 if in further appeal the trial courts decree were restored and the assessee were to recover back the remuneration the assessee can be taxed on the two amounts under s. 41(1) of the 1961 Act.10. | 0[ds]On a perusal of the aforesaid clauses of the Agreeme nt in question two or three things stand out very clearly. It is true that at the commencement of the deed Kamala Mills Ltd. has been described and referred to as the "Managers" of the assessee throughout the document but mere label or nomenclature given to a party in the document will not be decisive. It is also true that the. several powers and functions were entrusted to Kamala Mills Ltd. under cl. 1 of the Agreement to enable it "to manage or run the mill" of the assessee. But simply because powers and functions were given to Kamala Mills Ltd. for the purpose of "managing and running the m ills" of the assessee, it would not follow that Kamala Mills Ltd. was in truth and substance a manager of the assessee within the meaning o f s. 2(24) of the 1956 Act. For this purpose the Agreement will have to be read as a whole and the Court will have to decide that was the true, intention of the parties in entering into such agreement. The two recitals clearly indicate the object with which and the purpose for which the Agreement was entered into. It does appear that the assessee was in financially straightened circumstances and on that account was utterly unable to carry on its business of manufacture and sale of yarn and, therefore, the board of directors were in search of a financier who would make available the necessary finances for the running of the mill as also to take active interest in the business of the assessee and when Kamala Mills Ltd. a greed "to assist the company (assessee) with sufficient finance and manage the mill" belonging to the assessee on terms and conditions that were approved b-y the Board of Directors of the assessee that the Agreement was entered into between the parties; in other words, it is clear that the dominant object with which the Agreement was entered into was that Kamala Mills Ltd. should really act as financier so that the assessee mill could run and since heavy finances were to be procure d by Kamala Mills Ltd. large powers and functions connected with the working of the mill were entrusted to it. This aspect becomes abundantly clear from cl. 16 of the Agreement wherein the parties expressly provided that this Agreement for management was by way of and amounted to an Agency coupled with interest so far as Kamala Mills Ltd. was concerned and, therefore, revocation of the Agreement before the expiry of the five years period was made dependent upon 12 months notice in writing being given by one party to the other and further if such revocation was done by the assessee suitable compensation was made payable to Kamala Millsother words, managerial functions were incidental and had to be entrusted to Kamala Mills because of the financiers role undertaken by it. The large powers and functions entrusted to Kamala Mills Ltd. under the several sub-clauses of cl. 1 of the Agreement do show that management of substantially the whole, if not the whole, of the affairs of the assessee company had been made over to Kamala Mills Ltd. But the crucial question is whether such management was to be done by Kamala Mills Ltd. under "the superintendence, control and direction of the Board of Direct ors" of the assessee and in that behalf cl. 13 of the Agreement which we have quoted above is very eloquent. In terms it provided that so far as the powers conferred and the functions entrusted to Kamala Mills Ltd., were concerned, the Board of Directors shall not exercise or perform the same except by way of general supervision and advice and it was further made clear that the Board of Directors shall not interfere with the discretion of Kamala Mills Ltd. in the exercise o f their functions and powers vested in it by virtue of the Agreement. In other words, the general supervision or advice of the Board of Directors was of such character that the Board had not say whatsoever nor could it interfere with the discretion of Kamala Mills Ltd. in the matter of the exercise of the powers and the discharge of the functions entrusted to Kamala Mills Ltd. under the Agreement. It is thus clear to us that the dominant object of the Agreement was that Kamala Mill s Ltd. should act as financiers of the assessee mill and in the matter of the exercise of its powers and discharge of its functions Kamala Mills Ltd. was never "subject to the superintendence, control or direction" of the Board of directors of the assessee. If this position clearly emerges on true construction of the Agreement in question then it is obvious that Kamala Mills was not acting or working as the "Manager" of the assesses within the meaning of s. 2(24) of the Companies Act , 1956 and as such the illegality of s. 384 of that Act was not attracted. In this view of the matter, the remuneration paid by the assessee to Kamala Mills Ltd.. for the two calendar years 1957 and 1958 relevant to the assessment years 1958-59 and 1959-60 could not be regarded as being in violation of s. 384 ofthe Companies Act, 1956 and as such the expenditure incurred by way of paying such remuneration would be deductible as business expenditure under s. 10 (2) (xv) of the Income Tax Ac t. 1922.In view of our aforesaid conclusion the aspects whether the assessee had disputed its liability to pay such remuneration to Kamala Mills Ltd. Or had filed a suit at the instance of the Company Law Board to recover it back from Kamala Mills Ltd. Or had obtained a decree in that behalf against Kamala Mills Ltd. become irrelevant. However, we would like to place on record the fact that the decree obtained by the assessees against Kamala Mills Ltd. has been reversed or se t aside in appeal by the Kerala High Court-a fact which was brought to our notice by the Advocate-on- Record for the assessee communicated to him by his client in a letter dated 22nd August, 1979. However, even 7 if in further appeal the trial courts decree were restored and the assessee were to recover back the remuneration the assessee can be taxed on the two amounts under s. 41(1) of the 1961 Act. | 0 | 4,931 | 1,152 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
Mills Ltd. under cl. 1 of the Agreement to enable it "to manage or run the mill" of the assessee. But simply because powers and functions were given to Kamala Mills Ltd. for the purpose of "managing and running the m ills" of the assessee, it would not follow that Kamala Mills Ltd. was in truth and substance a manager of the assessee within the meaning o f s. 2(24) of the 1956 Act. For this purpose the Agreement will have to be read as a whole and the Court will have to decide that was the true, intention of the parties in entering into such agreement. The two recitals clearly indicate the object with which and the purpose for which the Agreement was entered into. It does appear that the assessee was in financially straightened circumstances and on that account was utterly unable to carry on its business of manufacture and sale of yarn and, therefore, the board of directors were in search of a financier who would make available the necessary finances for the running of the mill as also to take active interest in the business of the assessee and when Kamala Mills Ltd. a greed "to assist the company (assessee) with sufficient finance and manage the mill" belonging to the assessee on terms and conditions that were approved b-y the Board of Directors of the assessee that the Agreement was entered into between the parties; in other words, it is clear that the dominant object with which the Agreement was entered into was that Kamala Mills Ltd. should really act as financier so that the assessee mill could run and since heavy finances were to be procure d by Kamala Mills Ltd. large powers and functions connected with the working of the mill were entrusted to it. This aspect becomes abundantly clear from cl. 16 of the Agreement wherein the parties expressly provided that this Agreement for management was by way of and amounted to an Agency coupled with interest so far as Kamala Mills Ltd. was concerned and, therefore, revocation of the Agreement before the expiry of the five years period was made dependent upon 12 months notice in writing being given by one party to the other and further if such revocation was done by the assessee suitable compensation was made payable to Kamala Mills Ltd. In other words, managerial functions were incidental and had to be entrusted to Kamala Mills because of the financiers role undertaken by it. The large powers and functions entrusted to Kamala Mills Ltd. under the several sub-clauses of cl. 1 of the Agreement do show that management of substantially the whole, if not the whole, of the affairs of the assessee company had been made over to Kamala Mills Ltd. But the crucial question is whether such management was to be done by Kamala Mills Ltd. under "the superintendence, control and direction of the Board of Direct ors" of the assessee and in that behalf cl. 13 of the Agreement which we have quoted above is very eloquent. In terms it provided that so far as the powers conferred and the functions entrusted to Kamala Mills Ltd., were concerned, the Board of Directors shall not exercise or perform the same except by way of general supervision and advice and it was further made clear that the Board of Directors shall not interfere with the discretion of Kamala Mills Ltd. in the exercise o f their functions and powers vested in it by virtue of the Agreement. In other words, the general supervision or advice of the Board of Directors was of such character that the Board had not say whatsoever nor could it interfere with the discretion of Kamala Mills Ltd. in the matter of the exercise of the powers and the discharge of the functions entrusted to Kamala Mills Ltd. under the Agreement. It is thus clear to us that the dominant object of the Agreement was that Kamala Mill s Ltd. should act as financiers of the assessee mill and in the matter of the exercise of its powers and discharge of its functions Kamala Mills Ltd. was never "subject to the superintendence, control or direction" of the Board of directors of the assessee. If this position clearly emerges on true construction of the Agreement in question then it is obvious that Kamala Mills was not acting or working as the "Manager" of the assesses within the meaning of s. 2(24) of the Companies Act , 1956 and as such the illegality of s. 384 of that Act was not attracted. In this view of the matter, the remuneration paid by the assessee to Kamala Mills Ltd.. for the two calendar years 1957 and 1958 relevant to the assessment years 1958-59 and 1959-60 could not be regarded as being in violation of s. 384 of the Companies Act, 1956 and as such the expenditure incurred by way of paying such remuneration would be deductible as business expenditure under s. 10 (2) (xv) of the Income Tax Ac t. 1922.In view of our aforesaid conclusion the aspects whether the assessee had disputed its liability to pay such remuneration to Kamala Mills Ltd. Or had filed a suit at the instance of the Company Law Board to recover it back from Kamala Mills Ltd. Or had obtained a decree in that behalf against Kamala Mills Ltd. become irrelevant. However, we would like to place on record the fact that the decree obtained by the assessees against Kamala Mills Ltd. has been reversed or se t aside in appeal by the Kerala High Court-a fact which was brought to our notice by the Advocate-on- Record for the assessee communicated to him by his client in a letter dated 22nd August, 1979. However, even 7 if in further appeal the trial courts decree were restored and the assessee were to recover back the remuneration the assessee can be taxed on the two amounts under s. 41(1) of the 1961 Act.10.
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were entrusted to Kamala Mills Ltd. under cl. 1 of the Agreement to enable it "to manage or run the mill" of the assessee. But simply because powers and functions were given to Kamala Mills Ltd. for the purpose of "managing and running the m ills" of the assessee, it would not follow that Kamala Mills Ltd. was in truth and substance a manager of the assessee within the meaning o f s. 2(24) of the 1956 Act. For this purpose the Agreement will have to be read as a whole and the Court will have to decide that was the true, intention of the parties in entering into such agreement. The two recitals clearly indicate the object with which and the purpose for which the Agreement was entered into. It does appear that the assessee was in financially straightened circumstances and on that account was utterly unable to carry on its business of manufacture and sale of yarn and, therefore, the board of directors were in search of a financier who would make available the necessary finances for the running of the mill as also to take active interest in the business of the assessee and when Kamala Mills Ltd. a greed "to assist the company (assessee) with sufficient finance and manage the mill" belonging to the assessee on terms and conditions that were approved b-y the Board of Directors of the assessee that the Agreement was entered into between the parties; in other words, it is clear that the dominant object with which the Agreement was entered into was that Kamala Mills Ltd. should really act as financier so that the assessee mill could run and since heavy finances were to be procure d by Kamala Mills Ltd. large powers and functions connected with the working of the mill were entrusted to it. This aspect becomes abundantly clear from cl. 16 of the Agreement wherein the parties expressly provided that this Agreement for management was by way of and amounted to an Agency coupled with interest so far as Kamala Mills Ltd. was concerned and, therefore, revocation of the Agreement before the expiry of the five years period was made dependent upon 12 months notice in writing being given by one party to the other and further if such revocation was done by the assessee suitable compensation was made payable to Kamala Millsother words, managerial functions were incidental and had to be entrusted to Kamala Mills because of the financiers role undertaken by it. The large powers and functions entrusted to Kamala Mills Ltd. under the several sub-clauses of cl. 1 of the Agreement do show that management of substantially the whole, if not the whole, of the affairs of the assessee company had been made over to Kamala Mills Ltd. But the crucial question is whether such management was to be done by Kamala Mills Ltd. under "the superintendence, control and direction of the Board of Direct ors" of the assessee and in that behalf cl. 13 of the Agreement which we have quoted above is very eloquent. In terms it provided that so far as the powers conferred and the functions entrusted to Kamala Mills Ltd., were concerned, the Board of Directors shall not exercise or perform the same except by way of general supervision and advice and it was further made clear that the Board of Directors shall not interfere with the discretion of Kamala Mills Ltd. in the exercise o f their functions and powers vested in it by virtue of the Agreement. In other words, the general supervision or advice of the Board of Directors was of such character that the Board had not say whatsoever nor could it interfere with the discretion of Kamala Mills Ltd. in the matter of the exercise of the powers and the discharge of the functions entrusted to Kamala Mills Ltd. under the Agreement. It is thus clear to us that the dominant object of the Agreement was that Kamala Mill s Ltd. should act as financiers of the assessee mill and in the matter of the exercise of its powers and discharge of its functions Kamala Mills Ltd. was never "subject to the superintendence, control or direction" of the Board of directors of the assessee. If this position clearly emerges on true construction of the Agreement in question then it is obvious that Kamala Mills was not acting or working as the "Manager" of the assesses within the meaning of s. 2(24) of the Companies Act , 1956 and as such the illegality of s. 384 of that Act was not attracted. In this view of the matter, the remuneration paid by the assessee to Kamala Mills Ltd.. for the two calendar years 1957 and 1958 relevant to the assessment years 1958-59 and 1959-60 could not be regarded as being in violation of s. 384 ofthe Companies Act, 1956 and as such the expenditure incurred by way of paying such remuneration would be deductible as business expenditure under s. 10 (2) (xv) of the Income Tax Ac t. 1922.In view of our aforesaid conclusion the aspects whether the assessee had disputed its liability to pay such remuneration to Kamala Mills Ltd. Or had filed a suit at the instance of the Company Law Board to recover it back from Kamala Mills Ltd. Or had obtained a decree in that behalf against Kamala Mills Ltd. become irrelevant. However, we would like to place on record the fact that the decree obtained by the assessees against Kamala Mills Ltd. has been reversed or se t aside in appeal by the Kerala High Court-a fact which was brought to our notice by the Advocate-on- Record for the assessee communicated to him by his client in a letter dated 22nd August, 1979. However, even 7 if in further appeal the trial courts decree were restored and the assessee were to recover back the remuneration the assessee can be taxed on the two amounts under s. 41(1) of the 1961 Act.
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Aregistrar Of Firms, Societies And Chits, Utiar Pradesh Vs. Secured Investment Company, Lucknow And Another | 92 only. 24. In spite of all these glaring attributes of exploitative nature of the scheme, the High Court appears to have been carried away with the Reinvestment Deposit Plan Receipt for Rs. 220. The High Court was of the view that the scheme could not be considered as prize chit. The High Court saidIt is thus clear from a reading of the document (Annexure 1) that the so-called member deposits the amount with the petitioners for the purpose of obtaining a Reinvestment Deposit Plan Receipt, which is promised to him by the petitioners. He may have been having an idea in the background that by depositing the amount of Rs. 220 with the petitioners and obtaining the Reinvestment Deposit Plan Receipt, he would also be considered for the distribution of Lucky Prizes. But that is not enough inasmuch as the amount which he had deposited with the petitioners was to be invested in a nationalised bank and he was to get a Reinvestment Deposit Plan Receipt. If the person from whom the money has been collected has not deposited it with the petitioners as contributions on subscription, it is difficult to hold that it is collected by the petitioners as his contribution or subscription 25. The High Court appears to have proceeded on the basis that the members of the scheme do not pay subscription to the company. Nor do they pay the amount as contribution. The High Court was also of the view that payment of money to the company for the purpose of obtaining RDP receipt with the hope of getting any prize is not sufficient to attract the definition of prize chit. 26. In our view, the conclusion of the High Court is patently erroneous. It is unsustainable both on facts and law. The High Court has failed to consider that the company undisputedly takes away Rs. 92 out of Rs. 220 paid by each member. The High Court has further failed to note that the company utilises the deducted amount of Rs. 92 for the purpose of giving prizes to members. Dr. L. M. Singhvi, learned counsel for the company, did not and indeed could not dispute that the company is deducting Rs. 92 out of the payment of Rs. 220. The counsel however, urged that since the member gets the full amount of Rs. 220 from the bank at the instance of the company, the scheme is an investment scheme and not prize chit. We are unable to accept this submission. The fact that the member receives Rs. 220 from the bank after the maturity period of his deposit makes little difference in the nature of the transaction of the company. The fact remains that the company collects in one lump sum Rs. 220 from every member. It is only by payment of that amount, the individual becomes a member of the scheme and eligible to get monthly prizes. The company instead of returning the balance of Rs. 123 directly to the member takes him to a nearby branch of the nationalised bank. There Rs. 128 would be deposited in the name of the member who gets the same with interest after maturity. But it should not be forgotten that the member does not get back Rs. 92 deducted by the company. Nor he gets any interest or this amount. He forgoes his amount of Rs. 92 with the hope of getting prizes offered by the company. There is no guarantee that he will get any prize. He, however, takes chance month after month. If he is unlucky he waits in vain for 60 months. The apparent tenor of the scheme may not bring out the exploitative nature of the scheme. But it is there if anybody wants to know it. The Company undisputedly collects Rs. 92 from every subscriber and utilises a portion of it for giving prizes and to meet overhead charges. The Company in all collects an amount of Rs. 18, 44, 907.75 at the rate of Rs. 92 per head from 19, 999 subscribers. The company distributes monthly prizes of the value of Rs. 15, 000. The total value of all the prizes for 60 months works out to Rs. 9 lakhs. The balance of about 9.5 lakhs with interest thereon would be utilised by the company. Is this a promotion of thrift, investment or saving ? At whose cost ? and for whose benefit ? 27. We are, however, glad to note that Madhya Pradesh High Court while considering a similar scheme in Sahara India v. State of M.P. (AIR 1983 MP 128 : 1983 MPLJ 435), has held that it is prize chit falling within the scope of Section 2(e) of the Act. 28. We have no doubt that the scheme of the company with which we are concerned is primarily for the benefit of the promoter or the company at the costs of the subscribers. This is the kind of transactions or arrangements which Dr. J. S. Raj Study Group said that should be banned altogether. Section 2(e) was intended to cover all such arrangements or schemes. The interpretation given by the court should not be stultifying the underlying principle in the definition which was meant to protect people from exploitation. We would like to emphasise that the Act was intended to ban all kinds of prize chits where persons part with their money and risk the chance of getting prizes of gifts. Therefore, any scheme or arrangement in which a person agrees to lose or is made to part with a portion of his payment against the chance of getting any prize or gift, should be considered as prize chit falling within the inclusive definition under Section 2(e). 29. From the above discussion, and in the light of the principles to which we have called attention the scheme of the Company is nothing but prize chit as defined under Section 2(e) of the Act and the action of the Registrar of Firms deserves to be upheld. | 1[ds]6. The chit funds appear to have originated from two legitimate demands of the rural people : (i) a necessity for a lump sum amount to meet some unusual expenditure and (ii) to provide a form of accumulated saving when people had no banking facilities. It was considered as a source of credit and mode of saving. It was meant for mutual benefit in which some people joined to save and others to borrow. What distinguishes the chit fund, however, from other financial transactions is that it connects the borrowing class directly with the lending class. The pooled saving is lent out to the same group of contributors. A chit fund collects the savings of the members by periodical subscriptions for a definite period. At the same time, it makes available the pooled savings to each member by turn as agreed by them. The collected fund may be given either by drawing lots or by bidding. Lots are drawn periodically and the member whose name appears on the winning chit gets the collection without any deductions. He, however, continues to pay his sub-scriptions but his name is removed from subsequent lots. Thus every member gets a chance to receive the whole amount of the chit. These are generally the features of a conventional chit. It is operated without a professional promoter or manager and without any risk of loss of capital7. During the course of years, the chit funds became more and more popular and attractive. In the usual process of social growth, the chitties crossed boundaries of its birth place. It assumed new institutional forms with emergence of new types of entrepreneurs. The partnership firms, private or public limited companies took over the chit business in various forms. They gave different names, such as prize chit, lucky draw, benefit scheme or money circulation scheme. They offered prizes to attract subscribers. The basic features, however, remained the same in all such schemes. Periodically the names of the subscribers were put to draw and the lucky member was given a prize either in cash or in kind like articles of utility. The subscribers were also given refund of a portion of their contributions. This became regular business of ever so many people24. In spite of all these glaring attributes of exploitative nature of the scheme, the High Court appears to have been carried away with the Reinvestment Deposit Plan Receipt for Rs. 220. The High Court was of the view that the scheme could not be considered as. The High Court saidIt is thus clear from a reading of the document (Annexure 1) that the so-called member deposits the amount with the petitioners for the purpose of obtaining a Reinvestment Deposit Plan Receipt, which is promised to him by the petitioners. He may have been having an idea in the background that by depositing the amount of Rs. 220 with the petitioners and obtaining the Reinvestment Deposit Plan Receipt, he would also be considered for the distribution of Lucky Prizes. But that is not enough inasmuch as the amount which he had deposited with the petitioners was to be invested in a nationalised bank and he was to get a Reinvestment Deposit Plan Receipt. If the person from whom the money has been collected has not deposited it with the petitioners asit is difficult to hold that it is collected by the petitioners as hisn or subscription25. The High Court appears to have proceeded on the basis that the members of the scheme do not pay subscription to the company. Nor do they pay the amount as contribution. The High Court was also of the view that payment of money to the company for the purpose of obtaining RDP receipt with the hope of getting any prize is not sufficient to attract the definition of prize chit26. In our view, the conclusion of the High Court is patently erroneous. It is unsustainable both on facts and law. The High Court has failed to consider that the company undisputedly takes away Rs. 92 out of Rs. 220 paid by each member. The High Court has further failed to note that the company utilises the deducted amount of Rs. 92 for the purpose of giving prizes to members. Dr. L. M. Singhvi, learned counsel for the company, did not and indeed could not dispute that the company is deducting Rs. 92 out of the payment of Rs. 220. The counsel however, urged that since the member gets the full amount of Rs. 220 from the bank at the instance of the company, the scheme is an investment scheme and not prize chit. We are unable to accept this submission. The fact that the member receives Rs. 220 from the bank after the maturity period of his deposit makes little difference in the nature of the transaction of the company. The fact remains that the company collects in one lump sum Rs. 220 from every member. It is only by payment of that amount, the individual becomes a member of the scheme and eligible to get monthly prizes. The company instead of returning the balance of Rs. 123 directly to the member takes him to a nearby branch of the nationalised bank. There Rs. 128 would be deposited in the name of the member who gets the same with interest after maturity. But it should not be forgotten that the member does not get back Rs. 92 deducted by the company. Nor he gets any interest or this amount. He forgoes his amount of Rs. 92 with the hope of getting prizes offered by the company. There is no guarantee that he will get any prize. He, however, takes chance month after month. If he is unlucky he waits in vain for 60 months. The apparent tenor of the scheme may not bring out the exploitative nature of the scheme. But it is there if anybody wants to know it. The Company undisputedly collects Rs. 92 from every subscriber and utilises a portion of it for giving prizes and to meet overhead charges. The Company in all collects an amount of Rs. 18, 44, 907.75 at the rate of Rs. 92 per head from 19, 999 subscribers. The company distributes monthly prizes of the value of Rs. 15, 000. The total value of all the prizes for 60 months works out to Rs. 9 lakhs. The balance of about 9.5 lakhs with interest thereon would be utilised by the company. Is this a promotion of thrift, investment or saving ? At whose cost ? and for whose benefit ?27. We are, however, glad to note that Madhya Pradesh High Court while considering a similar scheme in Sahara India v. State of M.P. (AIR 1983 MP 128 : 1983 MPLJ 435), has held that it is prize chit falling within the scope of Section 2(e) of the Act28. We have no doubt that the scheme of the company with which we are concerned is primarily for the benefit of the promoter or the company at the costs of the subscribers. This is the kind of transactions or arrangements which Dr. J. S. Raj Study Group said that should be banned altogether. Section 2(e) was intended to cover all such arrangements or schemes. The interpretation given by the court should not be stultifying the underlying principle in the definition which was meant to protect people from exploitation. We would like to emphasise that the Act was intended to ban all kinds of prize chits where persons part with their money and risk the chance of getting prizes of gifts. Therefore, any scheme or arrangement in which a person agrees to lose or is made to part with a portion of his payment against the chance of getting any prize or gift, should be considered as prize chit falling within the inclusive definition under Section 2(e)29. From the above discussion, and in the light of the principles to which we have called attention the scheme of the Company is nothing but prize chit as defined under Section 2(e) of the Act and the action of the Registrar of Firms deserves to be upheld | 1 | 7,007 | 1,503 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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92 only. 24. In spite of all these glaring attributes of exploitative nature of the scheme, the High Court appears to have been carried away with the Reinvestment Deposit Plan Receipt for Rs. 220. The High Court was of the view that the scheme could not be considered as prize chit. The High Court saidIt is thus clear from a reading of the document (Annexure 1) that the so-called member deposits the amount with the petitioners for the purpose of obtaining a Reinvestment Deposit Plan Receipt, which is promised to him by the petitioners. He may have been having an idea in the background that by depositing the amount of Rs. 220 with the petitioners and obtaining the Reinvestment Deposit Plan Receipt, he would also be considered for the distribution of Lucky Prizes. But that is not enough inasmuch as the amount which he had deposited with the petitioners was to be invested in a nationalised bank and he was to get a Reinvestment Deposit Plan Receipt. If the person from whom the money has been collected has not deposited it with the petitioners as contributions on subscription, it is difficult to hold that it is collected by the petitioners as his contribution or subscription 25. The High Court appears to have proceeded on the basis that the members of the scheme do not pay subscription to the company. Nor do they pay the amount as contribution. The High Court was also of the view that payment of money to the company for the purpose of obtaining RDP receipt with the hope of getting any prize is not sufficient to attract the definition of prize chit. 26. In our view, the conclusion of the High Court is patently erroneous. It is unsustainable both on facts and law. The High Court has failed to consider that the company undisputedly takes away Rs. 92 out of Rs. 220 paid by each member. The High Court has further failed to note that the company utilises the deducted amount of Rs. 92 for the purpose of giving prizes to members. Dr. L. M. Singhvi, learned counsel for the company, did not and indeed could not dispute that the company is deducting Rs. 92 out of the payment of Rs. 220. The counsel however, urged that since the member gets the full amount of Rs. 220 from the bank at the instance of the company, the scheme is an investment scheme and not prize chit. We are unable to accept this submission. The fact that the member receives Rs. 220 from the bank after the maturity period of his deposit makes little difference in the nature of the transaction of the company. The fact remains that the company collects in one lump sum Rs. 220 from every member. It is only by payment of that amount, the individual becomes a member of the scheme and eligible to get monthly prizes. The company instead of returning the balance of Rs. 123 directly to the member takes him to a nearby branch of the nationalised bank. There Rs. 128 would be deposited in the name of the member who gets the same with interest after maturity. But it should not be forgotten that the member does not get back Rs. 92 deducted by the company. Nor he gets any interest or this amount. He forgoes his amount of Rs. 92 with the hope of getting prizes offered by the company. There is no guarantee that he will get any prize. He, however, takes chance month after month. If he is unlucky he waits in vain for 60 months. The apparent tenor of the scheme may not bring out the exploitative nature of the scheme. But it is there if anybody wants to know it. The Company undisputedly collects Rs. 92 from every subscriber and utilises a portion of it for giving prizes and to meet overhead charges. The Company in all collects an amount of Rs. 18, 44, 907.75 at the rate of Rs. 92 per head from 19, 999 subscribers. The company distributes monthly prizes of the value of Rs. 15, 000. The total value of all the prizes for 60 months works out to Rs. 9 lakhs. The balance of about 9.5 lakhs with interest thereon would be utilised by the company. Is this a promotion of thrift, investment or saving ? At whose cost ? and for whose benefit ? 27. We are, however, glad to note that Madhya Pradesh High Court while considering a similar scheme in Sahara India v. State of M.P. (AIR 1983 MP 128 : 1983 MPLJ 435), has held that it is prize chit falling within the scope of Section 2(e) of the Act. 28. We have no doubt that the scheme of the company with which we are concerned is primarily for the benefit of the promoter or the company at the costs of the subscribers. This is the kind of transactions or arrangements which Dr. J. S. Raj Study Group said that should be banned altogether. Section 2(e) was intended to cover all such arrangements or schemes. The interpretation given by the court should not be stultifying the underlying principle in the definition which was meant to protect people from exploitation. We would like to emphasise that the Act was intended to ban all kinds of prize chits where persons part with their money and risk the chance of getting prizes of gifts. Therefore, any scheme or arrangement in which a person agrees to lose or is made to part with a portion of his payment against the chance of getting any prize or gift, should be considered as prize chit falling within the inclusive definition under Section 2(e). 29. From the above discussion, and in the light of the principles to which we have called attention the scheme of the Company is nothing but prize chit as defined under Section 2(e) of the Act and the action of the Registrar of Firms deserves to be upheld.
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of a portion of their contributions. This became regular business of ever so many people24. In spite of all these glaring attributes of exploitative nature of the scheme, the High Court appears to have been carried away with the Reinvestment Deposit Plan Receipt for Rs. 220. The High Court was of the view that the scheme could not be considered as. The High Court saidIt is thus clear from a reading of the document (Annexure 1) that the so-called member deposits the amount with the petitioners for the purpose of obtaining a Reinvestment Deposit Plan Receipt, which is promised to him by the petitioners. He may have been having an idea in the background that by depositing the amount of Rs. 220 with the petitioners and obtaining the Reinvestment Deposit Plan Receipt, he would also be considered for the distribution of Lucky Prizes. But that is not enough inasmuch as the amount which he had deposited with the petitioners was to be invested in a nationalised bank and he was to get a Reinvestment Deposit Plan Receipt. If the person from whom the money has been collected has not deposited it with the petitioners asit is difficult to hold that it is collected by the petitioners as hisn or subscription25. The High Court appears to have proceeded on the basis that the members of the scheme do not pay subscription to the company. Nor do they pay the amount as contribution. The High Court was also of the view that payment of money to the company for the purpose of obtaining RDP receipt with the hope of getting any prize is not sufficient to attract the definition of prize chit26. In our view, the conclusion of the High Court is patently erroneous. It is unsustainable both on facts and law. The High Court has failed to consider that the company undisputedly takes away Rs. 92 out of Rs. 220 paid by each member. The High Court has further failed to note that the company utilises the deducted amount of Rs. 92 for the purpose of giving prizes to members. Dr. L. M. Singhvi, learned counsel for the company, did not and indeed could not dispute that the company is deducting Rs. 92 out of the payment of Rs. 220. The counsel however, urged that since the member gets the full amount of Rs. 220 from the bank at the instance of the company, the scheme is an investment scheme and not prize chit. We are unable to accept this submission. The fact that the member receives Rs. 220 from the bank after the maturity period of his deposit makes little difference in the nature of the transaction of the company. The fact remains that the company collects in one lump sum Rs. 220 from every member. It is only by payment of that amount, the individual becomes a member of the scheme and eligible to get monthly prizes. The company instead of returning the balance of Rs. 123 directly to the member takes him to a nearby branch of the nationalised bank. There Rs. 128 would be deposited in the name of the member who gets the same with interest after maturity. But it should not be forgotten that the member does not get back Rs. 92 deducted by the company. Nor he gets any interest or this amount. He forgoes his amount of Rs. 92 with the hope of getting prizes offered by the company. There is no guarantee that he will get any prize. He, however, takes chance month after month. If he is unlucky he waits in vain for 60 months. The apparent tenor of the scheme may not bring out the exploitative nature of the scheme. But it is there if anybody wants to know it. The Company undisputedly collects Rs. 92 from every subscriber and utilises a portion of it for giving prizes and to meet overhead charges. The Company in all collects an amount of Rs. 18, 44, 907.75 at the rate of Rs. 92 per head from 19, 999 subscribers. The company distributes monthly prizes of the value of Rs. 15, 000. The total value of all the prizes for 60 months works out to Rs. 9 lakhs. The balance of about 9.5 lakhs with interest thereon would be utilised by the company. Is this a promotion of thrift, investment or saving ? At whose cost ? and for whose benefit ?27. We are, however, glad to note that Madhya Pradesh High Court while considering a similar scheme in Sahara India v. State of M.P. (AIR 1983 MP 128 : 1983 MPLJ 435), has held that it is prize chit falling within the scope of Section 2(e) of the Act28. We have no doubt that the scheme of the company with which we are concerned is primarily for the benefit of the promoter or the company at the costs of the subscribers. This is the kind of transactions or arrangements which Dr. J. S. Raj Study Group said that should be banned altogether. Section 2(e) was intended to cover all such arrangements or schemes. The interpretation given by the court should not be stultifying the underlying principle in the definition which was meant to protect people from exploitation. We would like to emphasise that the Act was intended to ban all kinds of prize chits where persons part with their money and risk the chance of getting prizes of gifts. Therefore, any scheme or arrangement in which a person agrees to lose or is made to part with a portion of his payment against the chance of getting any prize or gift, should be considered as prize chit falling within the inclusive definition under Section 2(e)29. From the above discussion, and in the light of the principles to which we have called attention the scheme of the Company is nothing but prize chit as defined under Section 2(e) of the Act and the action of the Registrar of Firms deserves to be upheld
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Kirloskar Cummins Limited Vs. Union of India | company. The learned counsel did not dispute that the subsidiary company of the assessee is a related person as contemplated by Section 4 (1) (c) of the Act. The expression "related person" means a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other and includes a subsidiary company. It is not in dispute that the subsidiary company is wholly owned by petitioner No. 1 Company and therefore Shri Setalwad very rightly did not dispute the finding of the Assistant Collector that the subsidiary company was a related person. The complaint of Shri Setalvad is that the Assistant Collector was in error in holding that the price charged by the subsidiary company to their purchasers should be taken into consideration for determination of assessable value of engines. The submission of the learned counsel is correct and deserves acceptance.( 5 ) SECTION 4 of the Act, inter alia, prescribes that the duty of excise of excisable goods shall be determined with reference to value and such value shall be the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade and where the buyer is not a related person. Proviso (i) to Sec. 4 (1) sets out that where such goods are sold by the assessee at different prices to different classes of buyers, not being related persons, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. The provisions of proviso (i) do not come into play in the facts of the present case as the engines were sold by the Company to individual buyers and to the subsidiary company which is undisputably a related person. The Assistant Collector relied upon provisions of Sec. 4 (1) (a) (iii) to hold that the price charged by the subsidiary company to their purchasers should be relevant for determining the assessable value. It is therefore necessary to set out proviso (iii) in its entirely. (iii) where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons) who sell such goods in retail. Shri Setalvad complains, and in our judgment, with considerable merit that proviso (iii) is not attracted to the facts of the case because the engines are generally not sold by the assessee except to or through a related person. Shri Setalwad submits that out of the total production 90% are sold directly to wholesale dealers, while negligible quantity of engines i.e. 10% are sold through the subsidiary company. It is therefore obvious that proviso (iii) will not come into play because the engines are generally not sold by the assessee to or through a related person. Shri Desai, learned counsel appearing for the Revenue, made a brave attempt to urge that the 90% sale effected by the assessee is not a wholesale trade but the engines are sold on retail. We are unable to find any merit in the submission, because it is based on assumption and for which there is no foundation whatsoever. The expression "wholesale trade" has been defined under Section 4 (4) (e) of the Act and means sales to dealers, industrial consumers, Government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail. The Assistant collector in the impugned order has specifically observed that the Company sells their goods in wholesale trade through two channels, first directly to wholesale dealers and secondly through the subsidiary company. In face of this clear-cut finding recorded by the Assistant Collector, it is impossible to accede to the submission of Shri Desai that the sales of the Company is not wholesale trade as prescribed under Section 4 (4) (e) of the Act. Shri Setalvad points out that most of the engines manufactured by the Company are sold to the industrial consumers and therefore the sales clearly fall within the expression "wholesale trade". In our judgment the Assistant collector was clearly in error in holding that the price charged by the subsidiary company to their purchasers should be taken into consideration for determining the assessable value. The price at the second stage of sale is not relevant and such assessment is not permissible under any of the provisions of Sec. 4 of the Act. In our judgment, the Asstt. Collector was in error in refusing to grant the claim of refund made by the Company under various applications.( 6 ) SHRI Desai made a faint attempt to urge that the grant of refund would amount to unjust enrichment and in support of the submission made reference to the averment made in paragraph 24 of the return dated July 18, 1985 sworn by Shreeram Shankar Risbood, Assistant Collector of central Excise. The only claim made in the return is that the claim for refund is barred by principles of unjust enrichment. We are unable to find any merit in this submission. The requirements for examination of defence of unjust enrichment are well set out in the decision of the Full Bench of this Court reported in 1990 (46) E. L. T. 23 (New India Industries Ltd. v. Union of India). Shri Desai very frankly and very rightly stated that the affidavit filed by the department does not satisfy the requirements set out by the decision. It is therefore not possible to refuse the claim of the petitioners on the ground of unjust enrichment. In our judgment, the petitioners are entitled to the relief sought. | 1[ds]The submission of the learned counsel is correct and deserves acceptance.( 5 ) SECTION 4 of the Act, inter alia, prescribes that the duty of excise of excisable goods shall be determined with reference to value and such value shall be the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade and where the buyer is not a related person. Proviso (i) to Sec. 4 (1) sets out that where such goods are sold by the assessee at different prices to different classes of buyers, not being related persons, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. The provisions of proviso (i) do not come into play in the facts of the present case as the engines were sold by the Company to individual buyers and to the subsidiary company which is undisputably a related person. The Assistant Collector relied upon provisions of Sec. 4 (1) (a) (iii) to hold that the price charged by the subsidiary company to their purchasers should be relevant for determining the assessable value. It is therefore necessary to set out proviso (iii) in its entirely. (iii) where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons) who sell such goods in retail. Shri Setalvad complains, and in our judgment, with considerable merit that proviso (iii) is not attracted to the facts of the case because the engines are generally not sold by the assessee except to or through a related person. Shri Setalwad submits that out of the total production 90% are sold directly to wholesale dealers, while negligible quantity of engines i.e. 10% are sold through the subsidiary company. It is therefore obvious that proviso (iii) will not come into play because the engines are generally not sold by the assessee to or through a related person. Shri Desai, learned counsel appearing for the Revenue, made a brave attempt to urge that the 90% sale effected by the assessee is not a wholesale trade but the engines are sold on retail. We are unable to find any merit in the submission, because it is based on assumption and for which there is no foundation whatsoever. The expression "wholesale trade" has been defined under Section 4 (4) (e) of the Act and means sales to dealers, industrial consumers, Government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail. The Assistant collector in the impugned order has specifically observed that the Company sells their goods in wholesale trade through two channels, first directly to wholesale dealers and secondly through the subsidiary company. In face of thisfinding recorded by the Assistant Collector, it is impossible to accede to the submission of Shri Desai that the sales of the Company is not wholesale trade as prescribed under Section 4 (4) (e) of the Act. Shri Setalvad points out that most of the engines manufactured by the Company are sold to the industrial consumers and therefore the sales clearly fall within the expression "wholesale trade". In our judgment the Assistant collector was clearly in error in holding that the price charged by the subsidiary company to their purchasers should be taken into consideration for determining the assessable value. The price at the second stage of sale is not relevant and such assessment is not permissible under any of the provisions of Sec. 4 of the Act. In our judgment, the Asstt. Collector was in error in refusing to grant the claim of refund made by the Company under variousare unable to find any merit in this submission. The requirements for examination of defence of unjust enrichment are well set out in the decision of the Full Bench of this Court reported in 1990 (46) E. L. T. 23 (New India Industries Ltd. v. Union of India). Shri Desai very frankly and very rightly stated that the affidavit filed by the department does not satisfy the requirements set out by the decision. It is therefore not possible to refuse the claim of the petitioners on the ground of unjust enrichment. In our judgment, the petitioners are entitled to the relief sought. | 1 | 2,111 | 882 | ### 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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company. The learned counsel did not dispute that the subsidiary company of the assessee is a related person as contemplated by Section 4 (1) (c) of the Act. The expression "related person" means a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other and includes a subsidiary company. It is not in dispute that the subsidiary company is wholly owned by petitioner No. 1 Company and therefore Shri Setalwad very rightly did not dispute the finding of the Assistant Collector that the subsidiary company was a related person. The complaint of Shri Setalvad is that the Assistant Collector was in error in holding that the price charged by the subsidiary company to their purchasers should be taken into consideration for determination of assessable value of engines. The submission of the learned counsel is correct and deserves acceptance.( 5 ) SECTION 4 of the Act, inter alia, prescribes that the duty of excise of excisable goods shall be determined with reference to value and such value shall be the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade and where the buyer is not a related person. Proviso (i) to Sec. 4 (1) sets out that where such goods are sold by the assessee at different prices to different classes of buyers, not being related persons, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. The provisions of proviso (i) do not come into play in the facts of the present case as the engines were sold by the Company to individual buyers and to the subsidiary company which is undisputably a related person. The Assistant Collector relied upon provisions of Sec. 4 (1) (a) (iii) to hold that the price charged by the subsidiary company to their purchasers should be relevant for determining the assessable value. It is therefore necessary to set out proviso (iii) in its entirely. (iii) where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons) who sell such goods in retail. Shri Setalvad complains, and in our judgment, with considerable merit that proviso (iii) is not attracted to the facts of the case because the engines are generally not sold by the assessee except to or through a related person. Shri Setalwad submits that out of the total production 90% are sold directly to wholesale dealers, while negligible quantity of engines i.e. 10% are sold through the subsidiary company. It is therefore obvious that proviso (iii) will not come into play because the engines are generally not sold by the assessee to or through a related person. Shri Desai, learned counsel appearing for the Revenue, made a brave attempt to urge that the 90% sale effected by the assessee is not a wholesale trade but the engines are sold on retail. We are unable to find any merit in the submission, because it is based on assumption and for which there is no foundation whatsoever. The expression "wholesale trade" has been defined under Section 4 (4) (e) of the Act and means sales to dealers, industrial consumers, Government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail. The Assistant collector in the impugned order has specifically observed that the Company sells their goods in wholesale trade through two channels, first directly to wholesale dealers and secondly through the subsidiary company. In face of this clear-cut finding recorded by the Assistant Collector, it is impossible to accede to the submission of Shri Desai that the sales of the Company is not wholesale trade as prescribed under Section 4 (4) (e) of the Act. Shri Setalvad points out that most of the engines manufactured by the Company are sold to the industrial consumers and therefore the sales clearly fall within the expression "wholesale trade". In our judgment the Assistant collector was clearly in error in holding that the price charged by the subsidiary company to their purchasers should be taken into consideration for determining the assessable value. The price at the second stage of sale is not relevant and such assessment is not permissible under any of the provisions of Sec. 4 of the Act. In our judgment, the Asstt. Collector was in error in refusing to grant the claim of refund made by the Company under various applications.( 6 ) SHRI Desai made a faint attempt to urge that the grant of refund would amount to unjust enrichment and in support of the submission made reference to the averment made in paragraph 24 of the return dated July 18, 1985 sworn by Shreeram Shankar Risbood, Assistant Collector of central Excise. The only claim made in the return is that the claim for refund is barred by principles of unjust enrichment. We are unable to find any merit in this submission. The requirements for examination of defence of unjust enrichment are well set out in the decision of the Full Bench of this Court reported in 1990 (46) E. L. T. 23 (New India Industries Ltd. v. Union of India). Shri Desai very frankly and very rightly stated that the affidavit filed by the department does not satisfy the requirements set out by the decision. It is therefore not possible to refuse the claim of the petitioners on the ground of unjust enrichment. In our judgment, the petitioners are entitled to the relief sought.
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The submission of the learned counsel is correct and deserves acceptance.( 5 ) SECTION 4 of the Act, inter alia, prescribes that the duty of excise of excisable goods shall be determined with reference to value and such value shall be the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade and where the buyer is not a related person. Proviso (i) to Sec. 4 (1) sets out that where such goods are sold by the assessee at different prices to different classes of buyers, not being related persons, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. The provisions of proviso (i) do not come into play in the facts of the present case as the engines were sold by the Company to individual buyers and to the subsidiary company which is undisputably a related person. The Assistant Collector relied upon provisions of Sec. 4 (1) (a) (iii) to hold that the price charged by the subsidiary company to their purchasers should be relevant for determining the assessable value. It is therefore necessary to set out proviso (iii) in its entirely. (iii) where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons) who sell such goods in retail. Shri Setalvad complains, and in our judgment, with considerable merit that proviso (iii) is not attracted to the facts of the case because the engines are generally not sold by the assessee except to or through a related person. Shri Setalwad submits that out of the total production 90% are sold directly to wholesale dealers, while negligible quantity of engines i.e. 10% are sold through the subsidiary company. It is therefore obvious that proviso (iii) will not come into play because the engines are generally not sold by the assessee to or through a related person. Shri Desai, learned counsel appearing for the Revenue, made a brave attempt to urge that the 90% sale effected by the assessee is not a wholesale trade but the engines are sold on retail. We are unable to find any merit in the submission, because it is based on assumption and for which there is no foundation whatsoever. The expression "wholesale trade" has been defined under Section 4 (4) (e) of the Act and means sales to dealers, industrial consumers, Government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail. The Assistant collector in the impugned order has specifically observed that the Company sells their goods in wholesale trade through two channels, first directly to wholesale dealers and secondly through the subsidiary company. In face of thisfinding recorded by the Assistant Collector, it is impossible to accede to the submission of Shri Desai that the sales of the Company is not wholesale trade as prescribed under Section 4 (4) (e) of the Act. Shri Setalvad points out that most of the engines manufactured by the Company are sold to the industrial consumers and therefore the sales clearly fall within the expression "wholesale trade". In our judgment the Assistant collector was clearly in error in holding that the price charged by the subsidiary company to their purchasers should be taken into consideration for determining the assessable value. The price at the second stage of sale is not relevant and such assessment is not permissible under any of the provisions of Sec. 4 of the Act. In our judgment, the Asstt. Collector was in error in refusing to grant the claim of refund made by the Company under variousare unable to find any merit in this submission. The requirements for examination of defence of unjust enrichment are well set out in the decision of the Full Bench of this Court reported in 1990 (46) E. L. T. 23 (New India Industries Ltd. v. Union of India). Shri Desai very frankly and very rightly stated that the affidavit filed by the department does not satisfy the requirements set out by the decision. It is therefore not possible to refuse the claim of the petitioners on the ground of unjust enrichment. In our judgment, the petitioners are entitled to the relief sought.
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M/s. Elite Engineering And Construction (Hyd.) Private Limited Rep. by its Managing Director Vs. M/s. Techtrans Construction India Private Limited Rep. by its Managing Director | of contract will apply to the contract between the parties.”18. When we apply the aforesaid ratio, we find that the High Court has correctly held that, in the instant case, it was not intended to make the arbitration clause as a part of the contract between the appellant and the respondent. Clause 2 and clause 9.10 are given correct interpretation by the High Court and discussion in this behalf has already been extracted above. By these clauses, only those conditions and sub-conditions of the contract, specification etc. which relate to the works and quality are incorporated. Clause 9.10 only talks of ‘items’ which are not mentioned in the contract and terms and conditions relating to the execution of those items are to be taken from the main contracts. Reference to clause 8.7 is also inconsequential. By this clause only, those terms contained in the main agreement which relate to ‘terms of work’ are incorporated. Procedure relating to ‘termination’ is altogether different from resolution of disputes. Dispute may arise even de hors the termination of the contract and is an altogether different aspect, not necessarily connected with the termination of work.19. In Alimenta S.A. v. National Agricultural Coop. Mktg. Federation of India Ltd. (1987) 1 SCC 615 ), the question was as to whether the arbitration clause in Fosfa-20 was incorporated in the first contract by way of clause 11 and in the second contract by virtue of clause 9. The Court held that while the arbitration clause was incorporated in the first contract, the same was not incorporated in the second contract. How the matter has to be looked into, for determining the same, was discussed in the following manner:“13. … There is a good deal of difference between Clause 9 of this contract and Clause 11 of the first contract. Clause 11 has been couched in general words, but Clause 9 refers to all other terms and conditions for supply. The High Court has taken the view that by Clause 9 the terms and conditions of the first contract which had bearing on the supply of HPS were incorporated into the second contract, and the term about arbitration not being incidental to supply of goods, could not be held to have been lifted as well from the first contract into the second one.14. It is, however, contended on behalf of the appellant that the High Court was wrong in its view that a term about arbitration is not a term of supply of goods. We do not think that the contention is sound. It has been rightly pointed out by the High Court that the normal incidents of terms and conditions of supply are those which are connected with supply, such as, its mode and process, time factor, inspection and approval, if any, reliability for transit, incidental expenses, etc. We are unable to accept the contention of the appellant that an arbitration clause is a term of supply. There is no proposition of law that when a contract is entered into for supply of goods, the arbitration clause must form part of such a contract. The parties may choose some other method for the purpose of resolving any dispute that may arise between them. But in such a contract the incidents of supply generally form part of the terms and conditions of the contract. The first contract includes the terms and conditions of supply and as Clause 9 refers to these terms and conditions of supply, it is difficult to hold that the arbitration clause is also referred to and, as such, incorporated into the second contract. When the incorporation clause refers to certain particular terms and conditions, only those terms and conditions are incorporated and not the arbitration clause. In the present case, Clause 9 specifically refers to the terms and conditions of supply of the first contract and, accordingly, only those terms and conditions are incorporated into the second contract and not the arbitration clause. The High Court has taken the correct view in respect of the second contract also.”(emphasis supplied)20. This judgment is noted in M.R. Engineers and Contractors Private Limited case as well and in the facts of M.R. Engineers and Contractors Private Limited, the Court held that there was no incorporation of arbitration clause. Following discussion throws light to decide the issue in this case as well:“37. In the present case the wording of the arbitration clause in the main contract between the PW Department and the contractor makes it clear that it cannot be applied to the sub-contract between the contractor and the sub-contractor. The arbitration clause in the main contract states that the disputes which are to be referred to the committee of three arbitrators under Clause 67.3 are disputes in regard to which the decision of the Engineer (“Engineer” refers to person appointed by the State of Kerala to act as Engineer for the purpose of the contract between the PW Department and the respondent) has not become final and binding pursuant to Clause 67.1 or disputes in regard to which amicable settlement has not been reached between the State of Kerala and the respondent within the period stated in Clause 67.2. Obviously neither Clause 67.1 nor 67.2 will apply as the question of “Engineer” issuing any decision in a dispute between the contractor and the sub-contractor, or any negotiations being held with the Engineer in regard to the disputes between the contractor and the sub-contractor does not arise. The position would have been quite different if the arbitration clause had used the words “all disputes arising between the parties” or “all disputes arising under this contract”. Secondly, the arbitration clause contemplates a committee of three arbitrators, one each to be appointed by the State of Kerala and the respondent and the third (Chairman) to be nominated by the Director General, Road Development, Ministry of Surface Transport, Roads Wing, Government of India. There is no question of such nomination in the case of a dispute between the contractor and the sub-contractor.”21. | 0[ds]After considering the respective submissions, we are inclined to agree with the respondent and, therefore, do not find any fault with the impugned judgment of the Highion (5), an arbitration clause contained in an independent document can also be imported and engrafted in the contract between the parties, by reference to such independent document in the contract, even if there is no specific provision for arbitration. However, the Court noted that such a recourse can be adopted only ‘if the reference is such as to make the arbitration clause in such document, a part of theIn M.R. Engineers and Contractors Private Limited case, this Court considered the true intent and scope of Section 7 of the Act which deals with ‘arbitrationRelevant portion of Section 7 reads asArbitration agreement.—(1) In this Part, ‘arbitrationmeans an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.xxx xxx xxx(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of theion (5), an arbitration clause contained in an independent document can also be imported and engrafted in the contract between the parties, by reference to such independent document in the contract, even if there is no specific provision for arbitration. However, the Court noted that such a recourse can be adopted only ‘if the reference is such as to make the arbitration clause in such document, a part of theThis interpretation to(5) of Section 7 was elaborated in the followingThe wording of Section 7(5) of the Act makes it clear that a mere reference to a document would not have the effect of making an arbitration clause from that document, a part of the contract. The reference to the document in the contract should be such that shows the intention to incorporate the arbitration clause contained in the document, into the contract. If the legislative intent was to import an arbitration clause from another document, merely on reference to such document in the contract,(5) would not contain the significant later part which reads:the reference is such as to make that arbitration clause part of thebut would have stopped with the first part which(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing….Section 7(5) therefore requires a conscious acceptance of the arbitration clause from another document, by the parties, as a part of their contract, before such arbitration clause could be read as a part of the contract between the parties. But the Act does not contain any indication or guidelines as to the conditions to be fulfilled before a reference to a document in a contract can be construed as a reference incorporating an arbitration clause contained in such document into the contract. In the absence of such statutory guidelines, the normal rules of construction of contracts will have to be followed.16. There is a difference between reference to another document in a contract and incorporation of another document in a contract, by reference. In the first case, the parties intend to adopt only specific portions or part of the referred document for the purposes of the contract. In the second case, the parties intend to incorporate the referred document in entirety, into the contract. Therefore when there is a reference to a document in a contract, the court has to consider whether the reference to the document is with the intention of incorporating the contents of that document in entirety into the contract, or with the intention of adopting or borrowing specific portions of the said document for application to theAfter some further discussion on this aspect with reference to the existing case law as well as extracts from Russell on arbitration, the Court summed up the position asThe scope and intent of Section 7(5) of the Act may therefore be summarised thus:(i) An arbitration clause in another document, would get incorporated into a contract by reference, if the following conditions are fulfilled:(1) the contract should contain a clear reference to the documents containing arbitration clause, (2) the reference to the other document should clearly indicate an intention to incorporate the arbitration clause into the contract, (3) the arbitration clause should be appropriate, that is capable of application in respect of disputes under the contract and should not be repugnant to any term of the contract.(ii) When the parties enter into a contract, making a general reference to another contract, such general reference would not have the effect of incorporating the arbitration clause from the referred document into the contract between the parties. The arbitration clause from another contract can be incorporated into the contract (where such reference is made), only by a specific reference to arbitration clause.(iii) Where a contract between the parties provides that the execution or performance of that contract shall be in terms of another contract (which contains the terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, the terms of the referred contract in regard to execution/performance alone will apply, and not the arbitration agreement in the referred contract, unless there is special reference to the arbitration clause also.(iv) Where the contract provides that the standard form of terms and conditions of an independent trade or professional institution (as for example the standard terms and conditions of a trade association or architects association) will bind them or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. Sometimes the contract may also say that the parties are familiar with those terms and conditions or that the parties have read and understood the said terms and conditions.(v) Where the contract between the parties stipulates that the conditions of contract of one of the parties to the contract shall form a part of their contract (as for example the general conditions of contract of the Government where the Government is a party), the arbitration clause forming part of such general conditions of contract will apply to the contract between then we apply the aforesaid ratio, we find that the High Court has correctly held that, in the instant case, it was not intended to make the arbitration clause as a part of the contract between the appellant and the respondent. Clause 2 and clause 9.10 are given correct interpretation by the High Court and discussion in this behalf has already been extracted above. By these clauses, only those conditions andof the contract, specification etc. which relate to the works and quality are incorporated. Clause 9.10 only talks ofwhich are not mentioned in the contract and terms and conditions relating to the execution of those items are to be taken from the main contracts. Reference to clause 8.7 is also inconsequential. By this clause only, those terms contained in the main agreement which relate to ‘terms ofare incorporated. Procedure relating tos altogether different from resolution of disputes. Dispute may arise even de hors the termination of the contract and is an altogether different aspect, not necessarily connected with the termination of work.It is, however, contended on behalf of the appellant that the High Court was wrong in its view that a term about arbitration is not a term of supply of goods. We do not think that the contention is sound. It has been rightly pointed out by the High Court that the normal incidents of terms and conditions of supply are those which are connected with supply, such as, its mode and process, time factor, inspection and approval, if any, reliability for transit, incidental expenses, etc. We are unable to accept the contention of the appellant that an arbitration clause is a term of supply. There is no proposition of law that when a contract is entered into for supply of goods, the arbitration clause must form part of such a contract. The parties may choose some other method for the purpose of resolving any dispute that may arise between them. But in such a contract the incidents of supply generally form part of the terms and conditions of the contract. The first contract includes the terms and conditions of supply and as Clause 9 refers to these terms and conditions of supply, it is difficult to hold that the arbitration clause is also referred to and, as such, incorporated into the second contract. When the incorporation clause refers to certain particular terms and conditions, only those terms and conditions are incorporated and not the arbitration clause. In the present case, Clause 9 specifically refers to the terms and conditions of supply of the first contract and, accordingly, only those terms and conditions are incorporated into the second contract and not the arbitration clause. The High Court has taken the correct view in respect of the second contractis judgment is noted in M.R. Engineers and Contractors Private Limited case as well and in the facts of M.R. Engineers and Contractors Private Limited, the Court held that there was no incorporation of arbitration clause. Following discussion throws light to decide the issue in this case asIn the present case the wording of the arbitration clause in the main contract between the PW Department and the contractor makes it clear that it cannot be applied to thebetween the contractor and theThe arbitration clause in the main contract states that the disputes which are to be referred to the committee of three arbitrators under Clause 67.3 are disputes in regard to which the decision of the Engineerrefers to person appointed by the State of Kerala to act as Engineer for the purpose of the contract between the PW Department and the respondent) has not become final and binding pursuant to Clause 67.1 or disputes in regard to which amicable settlement has not been reached between the State of Kerala and the respondent within the period stated in Clause 67.2. Obviously neither Clause 67.1 nor 67.2 will apply as the question ofissuing any decision in a disputebetween the contractor and theor any negotiations being held with the Engineer in regard to the disputesbetween the contractor and thedoes not arise. The position would have been quite different if the arbitration clause had used the wordsdisputes arising between thell disputes arising under thisSecondly, the arbitration clause contemplates a committee of three arbitrators, one each to be appointed by the State of Kerala and the respondent and the third (Chairman) to be nominated by the Director General, Road Development, Ministry of Surface Transport, Roads Wing, Government of India. There is no question of such nomination in the case of a disputebetween the contractor and the | 0 | 4,639 | 2,008 | ### 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 contract will apply to the contract between the parties.”18. When we apply the aforesaid ratio, we find that the High Court has correctly held that, in the instant case, it was not intended to make the arbitration clause as a part of the contract between the appellant and the respondent. Clause 2 and clause 9.10 are given correct interpretation by the High Court and discussion in this behalf has already been extracted above. By these clauses, only those conditions and sub-conditions of the contract, specification etc. which relate to the works and quality are incorporated. Clause 9.10 only talks of ‘items’ which are not mentioned in the contract and terms and conditions relating to the execution of those items are to be taken from the main contracts. Reference to clause 8.7 is also inconsequential. By this clause only, those terms contained in the main agreement which relate to ‘terms of work’ are incorporated. Procedure relating to ‘termination’ is altogether different from resolution of disputes. Dispute may arise even de hors the termination of the contract and is an altogether different aspect, not necessarily connected with the termination of work.19. In Alimenta S.A. v. National Agricultural Coop. Mktg. Federation of India Ltd. (1987) 1 SCC 615 ), the question was as to whether the arbitration clause in Fosfa-20 was incorporated in the first contract by way of clause 11 and in the second contract by virtue of clause 9. The Court held that while the arbitration clause was incorporated in the first contract, the same was not incorporated in the second contract. How the matter has to be looked into, for determining the same, was discussed in the following manner:“13. … There is a good deal of difference between Clause 9 of this contract and Clause 11 of the first contract. Clause 11 has been couched in general words, but Clause 9 refers to all other terms and conditions for supply. The High Court has taken the view that by Clause 9 the terms and conditions of the first contract which had bearing on the supply of HPS were incorporated into the second contract, and the term about arbitration not being incidental to supply of goods, could not be held to have been lifted as well from the first contract into the second one.14. It is, however, contended on behalf of the appellant that the High Court was wrong in its view that a term about arbitration is not a term of supply of goods. We do not think that the contention is sound. It has been rightly pointed out by the High Court that the normal incidents of terms and conditions of supply are those which are connected with supply, such as, its mode and process, time factor, inspection and approval, if any, reliability for transit, incidental expenses, etc. We are unable to accept the contention of the appellant that an arbitration clause is a term of supply. There is no proposition of law that when a contract is entered into for supply of goods, the arbitration clause must form part of such a contract. The parties may choose some other method for the purpose of resolving any dispute that may arise between them. But in such a contract the incidents of supply generally form part of the terms and conditions of the contract. The first contract includes the terms and conditions of supply and as Clause 9 refers to these terms and conditions of supply, it is difficult to hold that the arbitration clause is also referred to and, as such, incorporated into the second contract. When the incorporation clause refers to certain particular terms and conditions, only those terms and conditions are incorporated and not the arbitration clause. In the present case, Clause 9 specifically refers to the terms and conditions of supply of the first contract and, accordingly, only those terms and conditions are incorporated into the second contract and not the arbitration clause. The High Court has taken the correct view in respect of the second contract also.”(emphasis supplied)20. This judgment is noted in M.R. Engineers and Contractors Private Limited case as well and in the facts of M.R. Engineers and Contractors Private Limited, the Court held that there was no incorporation of arbitration clause. Following discussion throws light to decide the issue in this case as well:“37. In the present case the wording of the arbitration clause in the main contract between the PW Department and the contractor makes it clear that it cannot be applied to the sub-contract between the contractor and the sub-contractor. The arbitration clause in the main contract states that the disputes which are to be referred to the committee of three arbitrators under Clause 67.3 are disputes in regard to which the decision of the Engineer (“Engineer” refers to person appointed by the State of Kerala to act as Engineer for the purpose of the contract between the PW Department and the respondent) has not become final and binding pursuant to Clause 67.1 or disputes in regard to which amicable settlement has not been reached between the State of Kerala and the respondent within the period stated in Clause 67.2. Obviously neither Clause 67.1 nor 67.2 will apply as the question of “Engineer” issuing any decision in a dispute between the contractor and the sub-contractor, or any negotiations being held with the Engineer in regard to the disputes between the contractor and the sub-contractor does not arise. The position would have been quite different if the arbitration clause had used the words “all disputes arising between the parties” or “all disputes arising under this contract”. Secondly, the arbitration clause contemplates a committee of three arbitrators, one each to be appointed by the State of Kerala and the respondent and the third (Chairman) to be nominated by the Director General, Road Development, Ministry of Surface Transport, Roads Wing, Government of India. There is no question of such nomination in the case of a dispute between the contractor and the sub-contractor.”21.
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is made), only by a specific reference to arbitration clause.(iii) Where a contract between the parties provides that the execution or performance of that contract shall be in terms of another contract (which contains the terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, the terms of the referred contract in regard to execution/performance alone will apply, and not the arbitration agreement in the referred contract, unless there is special reference to the arbitration clause also.(iv) Where the contract provides that the standard form of terms and conditions of an independent trade or professional institution (as for example the standard terms and conditions of a trade association or architects association) will bind them or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. Sometimes the contract may also say that the parties are familiar with those terms and conditions or that the parties have read and understood the said terms and conditions.(v) Where the contract between the parties stipulates that the conditions of contract of one of the parties to the contract shall form a part of their contract (as for example the general conditions of contract of the Government where the Government is a party), the arbitration clause forming part of such general conditions of contract will apply to the contract between then we apply the aforesaid ratio, we find that the High Court has correctly held that, in the instant case, it was not intended to make the arbitration clause as a part of the contract between the appellant and the respondent. Clause 2 and clause 9.10 are given correct interpretation by the High Court and discussion in this behalf has already been extracted above. By these clauses, only those conditions andof the contract, specification etc. which relate to the works and quality are incorporated. Clause 9.10 only talks ofwhich are not mentioned in the contract and terms and conditions relating to the execution of those items are to be taken from the main contracts. Reference to clause 8.7 is also inconsequential. By this clause only, those terms contained in the main agreement which relate to ‘terms ofare incorporated. Procedure relating tos altogether different from resolution of disputes. Dispute may arise even de hors the termination of the contract and is an altogether different aspect, not necessarily connected with the termination of work.It is, however, contended on behalf of the appellant that the High Court was wrong in its view that a term about arbitration is not a term of supply of goods. We do not think that the contention is sound. It has been rightly pointed out by the High Court that the normal incidents of terms and conditions of supply are those which are connected with supply, such as, its mode and process, time factor, inspection and approval, if any, reliability for transit, incidental expenses, etc. We are unable to accept the contention of the appellant that an arbitration clause is a term of supply. There is no proposition of law that when a contract is entered into for supply of goods, the arbitration clause must form part of such a contract. The parties may choose some other method for the purpose of resolving any dispute that may arise between them. But in such a contract the incidents of supply generally form part of the terms and conditions of the contract. The first contract includes the terms and conditions of supply and as Clause 9 refers to these terms and conditions of supply, it is difficult to hold that the arbitration clause is also referred to and, as such, incorporated into the second contract. When the incorporation clause refers to certain particular terms and conditions, only those terms and conditions are incorporated and not the arbitration clause. In the present case, Clause 9 specifically refers to the terms and conditions of supply of the first contract and, accordingly, only those terms and conditions are incorporated into the second contract and not the arbitration clause. The High Court has taken the correct view in respect of the second contractis judgment is noted in M.R. Engineers and Contractors Private Limited case as well and in the facts of M.R. Engineers and Contractors Private Limited, the Court held that there was no incorporation of arbitration clause. Following discussion throws light to decide the issue in this case asIn the present case the wording of the arbitration clause in the main contract between the PW Department and the contractor makes it clear that it cannot be applied to thebetween the contractor and theThe arbitration clause in the main contract states that the disputes which are to be referred to the committee of three arbitrators under Clause 67.3 are disputes in regard to which the decision of the Engineerrefers to person appointed by the State of Kerala to act as Engineer for the purpose of the contract between the PW Department and the respondent) has not become final and binding pursuant to Clause 67.1 or disputes in regard to which amicable settlement has not been reached between the State of Kerala and the respondent within the period stated in Clause 67.2. Obviously neither Clause 67.1 nor 67.2 will apply as the question ofissuing any decision in a disputebetween the contractor and theor any negotiations being held with the Engineer in regard to the disputesbetween the contractor and thedoes not arise. The position would have been quite different if the arbitration clause had used the wordsdisputes arising between thell disputes arising under thisSecondly, the arbitration clause contemplates a committee of three arbitrators, one each to be appointed by the State of Kerala and the respondent and the third (Chairman) to be nominated by the Director General, Road Development, Ministry of Surface Transport, Roads Wing, Government of India. There is no question of such nomination in the case of a disputebetween the contractor and the
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State Of Kerala, Etc Vs. Very Rev. Mother Provincial, Etc | and confer it upon the University. Then comes Section 58 which reads:58. Membership of the Legislative Assembly, etc., not to disqualify teachers.- A teacher of a private college shall not be disqualified for continuing as such teacher merely on the ground that he has been elected as a member of the Legislative Assembly of the State or of Parliament or of a local authority: Provided that a teacher who is a member of the Legislative Assembly of the State or of Parliament shall be on leave during the period in. which the Legislative Assembly or Parliament, as the case may be, is in session. This enables political parties to come into the picture of the administration of minority institutions which may not like this interference.When this is coupled with the choice of nominated members left to Government and the University by sub-section (1) (d) of Sections 48 and 49, it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence. 17. To crown all, there is the provision of Section 63 (1) which reads:63. Power to regulate the management of private colleges.- (1) Whenever Government are satisfied on receipt of a report from the University or upon other information that a grave situation has arisen in which the working of a private college cannot be carried on for all or any of the following reasons, namely:- (a) default in the payment of the salary of the members of the staff of the college for a period of not less than three months; (b) wilful closing down of the college for a period of not less than one month except in the case of the closure of the college during a vacation; (c) persistent default or refusal to carry out all or any of the duties imposed on any of the authorities of the college by this Act or the Statutes or Ordinances or Regulations or Rules or Bye-laws or lawful orders passed thereunder; and that in the interest of private college it is necessary so to do, the government may, after giving the governing body or managing council, as the case may be, the manager appointed under sub-section (1) of Section 50 and the education agency, if any, of the college a reasonable opportunity of showing cause against the proposed action and after considering the cause, if any, shown, by order, appoint the University to manage the affairs of such private college temporarily for a period not exceeding two years: Provided that in cases where action is taken under this sub-section other wise than on a report from the University, it shall be consulted before taking such action. x x x x x. 18. The remaining provisions of this section lay down an elaborate procedure for management in which even the governing body or the managing council have no say.Sub-section 63 (1) involves the transfer of right to possession of the properties to the University. The High Court rightly pointed out that this section provides for compulsory requisition of the properties within Art. 31 (2) and (2A). To be effective the section required the assent of the President under clause (3) and it was not obtained. Therefore the saving in Art. 31A (1) (b) is not available.19. Mr. Mohan Kumarmangalam brought to our notice passages from the Report of the Education Commission in which the Commission had made suggestions regarding the conditions of service of the teaching staff in the universities and the colleges and standards of teaching. He also referred to the Report of the Education Commission on the status of teachers, suggestions for improving the teaching the methods and standards. He argued that what has been done by the Kerala University Act is to implement these suggestions in Chapters VIII and IX and particularly the impugned sections. We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the administration of these institutions and rob the founders of that right which the Constitution desires should be theirs. The provisions, even if salutary cannot stand in the face of the constitutional guarantee. We do not, therefore, find it necessary to refer to the two reports. 20. The result of the above analysis of the provisions which have been successfully challenged discloses that the High Court was right in its appreciation of the true position in the light of the Constitution. We agree with the High Court that sub-sections (2) and (4) of Sections 48 and 49 are ultra vires Art. 30 (1). Indeed we think that sub-section (6) of these two sections is also ultra vires. They offend more than the other two of which they are a part and parcel. We also agree that sub-sections (1), (2), (3) and (9) of Sec. 53, sub-sections (2) and (4) of Sec. 56, Sec. 58 (in so far as it removes disqualification which the founders may not like to agree to), and Sec. 63 are ultra vires Article 30 (1) in respect of the minority institutions. The High Court has held that the provisions (except Sec. 63) are also offensive to Art. 19 (1) (f) in so far as the petitioners are citizens of India both in respect of majority as well as minority institutions. This was at first debated at least in so far as majority institutions were concerned. The majority institutions invoked Art. 14 and complained of discrimination. However at a later stage of proceedings Mr. Mohan Kumarmangalam stated that he had instructions to say that any provision held inapplicable to minority institutions would not be enforced against the majority institutions also. Hence it relieves us of the task of considering the matter under Art. 19 (1) (f) not only in respect of minority institutions but in respect of majority institutions also. The provisions of Sec. 63 affect both kinds of institutions alike and must be declared ultra vires in respect of both. | 0[ds]is not a case of giving some benefits to minority communities which in reason must also go to the majority community institutions but a special kind of protection for which the Constitution singles out the minority communities. This question, however, does not fall within our purview as the State, at the hearing announced that it was not intended to enforce the provisions of the law relating to administration against the majority institutions only, if they could not be enforced against the minority institutions.8. Article 30 (1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time.The first right is the initial right to establish institutions of the minoritys choice.Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community.It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.9. The next part of the right relates to the administration of such institutions.Administration means management of the affairs of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served.No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right10. There is, however, an exception to this and it is that the standards of education are not a part of management as such.These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if Universities establish the syllabi for examinations, they must be followed subject, however, to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied.The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern.While the management must be left to them, they may be compelled to keep in step with others. These propositions have been firmly established in the State of Bombay v. Bombay Education Society, (1955) 1 SCR 568 = (AIR 1954 SC 561 ); State of Madras v. S. C. Dorairajan, 1951 SCR 525 = (AIR 1951 SC 226 ); In re the Kerala Education Bill, 1957, 1959 SCR 995 = (AIR 1958 SC 956 ); Sidharajbhai v. State of Gujarat, 1963-3 SCR 837 = (AIR 1963 SC 540 ); Katra Education Society v. State of U. P., 1966-3 SCR 328 = (AIR 1966 SC 1307 ); Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar, 1963 Supp (1) SCR 112 = (AIR 1963 SC 703 ); and Rev. Father W. Proost v. State of Bihar, 1969 SC 465) . In the last case it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that must fairly be left to the minority institutions and no more. Applying these principles we now consider the provisions of the Act.14. These sections were partly declared ultra vires of Art. 30 (1) by the High Court as they took away from the founders the right to administer their own institution. It is obvious that after the election of the governing body or the managing council the founders or even the community has no hand in the administration. The two bodies are vested with the complete administration of the institutions These bodies have a legal personality distinct from the educational agency or the corporate management. They are not answerable to the founders in the matter of administration. Their powers and functions are determined by the University laws and even the removal of the members is to be governed by the Statutes of the University. Sub-sections (2), (4), (5) and (6) clearly vest the management and administration in the hands of the two bodies with mandates from the University.15. In attempting to save these provisions Mr. Mohan Kumaramangalam drew attention to two facts only. The first is that the nominees of the educational agencies or the corporate management have the controlling voice and that the defect, if any, must be found in the Statutes, Ordinances, Regulations, Bye-laws and Orders of the University and not in the provisions of the Act. Both these arguments are not acceptable to us. The Constitution contemplates the administration to be in the hands of the particular community. However desirable it might be to associate nominated members of the kind mentioned in Sections 48 and 49 with other members of the governing body or the managing council nominees, it is obvious that their voice must play a considerable part in management. Situations might be conceived when they may have a preponderating voice. In any event, the administration goes to a distinct corporate body with is in no way answerable to the educational agency or the corporate management. The founders have no say in the selection of the members nominated or selected except those to be nominated by them.It is, therefore, clear that by the force of sub-sections (2), (4) and (6) of Sections 48 and 49, the minority community loses the right to administer the institution it has founded.Sub- section (5) also compels the governing body or the managing council to follow the mandates of the University in the administration of the institution. No doubt the Statutes, Ordinances, Regulations, Rules, Byelaws and Orders can also be examined in the light of Art. 30 (1) but the blanket power so given to the University bears adversely upon the right of administration.position is further heightened by the other provisions of the Act16. Section 53, sub-sections (1), (2) and (3) confer on the Syndicate of the University the power to veto even the action of the governing body or the managing council in the selection of the principal.Similarly, sub-section (4) takes away from the educational agency or the corporate management the right to select the teachers. The insistence on merit in sub-section (4) or on seniority-cum-fitness in sub-s. (7) does not save the situation. The power is exercised not by the educational agency or the corporate management but by a distinct and autonomous body under the control of the Syndicate of the University.Indeed, sub-section (9) gives a right of appeal to the Syndicate to any person aggrieved by the action of governing body or the managing council thus making the Syndicate the final and absolute authority in these matters. Coupled with this is the power of Vice-Chancellor and the Syndicate in sub-sections (2) and (4) of Section 56.These provisions clearly take away the disciplinary action from the governing body and the managing council and confer it upon the University.Then comes Section 58This enables political parties to come into the picture of the administration of minority institutions which may not like this interference.When this is coupled with the choice of nominated members left to Government and the University by sub-section (1) (d) of Sections 48 and 49, it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence.18. The remaining provisions of this section lay down an elaborate procedure for management in which even the governing body or the managing council have no say.Sub-section 63 (1) involves the transfer of right to possession of the properties to the University. The High Court rightly pointed out that this section provides for compulsory requisition of the properties within Art. 31 (2) and (2A). To be effective the section required the assent of the President under clause (3) and it was not obtained. Therefore the saving in Art. 31A (1) (b) is not available.We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the administration of these institutions and rob the founders of that right which the Constitution desires should be theirs. The provisions, even if salutary cannot stand in the face of the constitutional guarantee. We do not, therefore, find it necessary to refer to the two reports20. The result of the above analysis of the provisions which have been successfully challenged discloses that the High Court was right in its appreciation of the true position in the light of the Constitution. We agree with the High Court that sub-sections (2) and (4) of Sections 48 and 49 are ultra vires Art. 30 (1). Indeed we think that sub-section (6) of these two sections is also ultra vires. They offend more than the other two of which they are a part and parcel. We also agree that sub-sections (1), (2), (3) and (9) of Sec. 53, sub-sections (2) and (4) of Sec. 56, Sec. 58 (in so far as it removes disqualification which the founders may not like to agree to), and Sec. 63 are ultra vires Article 30 (1) in respect of the minority institutions. The High Court has held that the provisions (except Sec. 63) are also offensive to Art. 19 (1) (f) in so far as the petitioners are citizens of India both in respect of majority as well as minority institutions. This was at first debated at least in so far as majority institutions were concerned. The majority institutions invoked Art. 14 and complained of discrimination. However at a later stage of proceedings Mr. Mohan Kumarmangalam stated that he had instructions to say that any provision held inapplicable to minority institutions would not be enforced against the majority institutions also. Hence it relieves us of the task of considering the matter under Art. 19 (1) (f) not only in respect of minority institutions but in respect of majority institutions also. The provisions of Sec. 63 affect both kinds of institutions alike and must be declared ultra vires in respect of both. | 0 | 5,112 | 2,034 | ### Instruction:
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and confer it upon the University. Then comes Section 58 which reads:58. Membership of the Legislative Assembly, etc., not to disqualify teachers.- A teacher of a private college shall not be disqualified for continuing as such teacher merely on the ground that he has been elected as a member of the Legislative Assembly of the State or of Parliament or of a local authority: Provided that a teacher who is a member of the Legislative Assembly of the State or of Parliament shall be on leave during the period in. which the Legislative Assembly or Parliament, as the case may be, is in session. This enables political parties to come into the picture of the administration of minority institutions which may not like this interference.When this is coupled with the choice of nominated members left to Government and the University by sub-section (1) (d) of Sections 48 and 49, it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence. 17. To crown all, there is the provision of Section 63 (1) which reads:63. Power to regulate the management of private colleges.- (1) Whenever Government are satisfied on receipt of a report from the University or upon other information that a grave situation has arisen in which the working of a private college cannot be carried on for all or any of the following reasons, namely:- (a) default in the payment of the salary of the members of the staff of the college for a period of not less than three months; (b) wilful closing down of the college for a period of not less than one month except in the case of the closure of the college during a vacation; (c) persistent default or refusal to carry out all or any of the duties imposed on any of the authorities of the college by this Act or the Statutes or Ordinances or Regulations or Rules or Bye-laws or lawful orders passed thereunder; and that in the interest of private college it is necessary so to do, the government may, after giving the governing body or managing council, as the case may be, the manager appointed under sub-section (1) of Section 50 and the education agency, if any, of the college a reasonable opportunity of showing cause against the proposed action and after considering the cause, if any, shown, by order, appoint the University to manage the affairs of such private college temporarily for a period not exceeding two years: Provided that in cases where action is taken under this sub-section other wise than on a report from the University, it shall be consulted before taking such action. x x x x x. 18. The remaining provisions of this section lay down an elaborate procedure for management in which even the governing body or the managing council have no say.Sub-section 63 (1) involves the transfer of right to possession of the properties to the University. The High Court rightly pointed out that this section provides for compulsory requisition of the properties within Art. 31 (2) and (2A). To be effective the section required the assent of the President under clause (3) and it was not obtained. Therefore the saving in Art. 31A (1) (b) is not available.19. Mr. Mohan Kumarmangalam brought to our notice passages from the Report of the Education Commission in which the Commission had made suggestions regarding the conditions of service of the teaching staff in the universities and the colleges and standards of teaching. He also referred to the Report of the Education Commission on the status of teachers, suggestions for improving the teaching the methods and standards. He argued that what has been done by the Kerala University Act is to implement these suggestions in Chapters VIII and IX and particularly the impugned sections. We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the administration of these institutions and rob the founders of that right which the Constitution desires should be theirs. The provisions, even if salutary cannot stand in the face of the constitutional guarantee. We do not, therefore, find it necessary to refer to the two reports. 20. The result of the above analysis of the provisions which have been successfully challenged discloses that the High Court was right in its appreciation of the true position in the light of the Constitution. We agree with the High Court that sub-sections (2) and (4) of Sections 48 and 49 are ultra vires Art. 30 (1). Indeed we think that sub-section (6) of these two sections is also ultra vires. They offend more than the other two of which they are a part and parcel. We also agree that sub-sections (1), (2), (3) and (9) of Sec. 53, sub-sections (2) and (4) of Sec. 56, Sec. 58 (in so far as it removes disqualification which the founders may not like to agree to), and Sec. 63 are ultra vires Article 30 (1) in respect of the minority institutions. The High Court has held that the provisions (except Sec. 63) are also offensive to Art. 19 (1) (f) in so far as the petitioners are citizens of India both in respect of majority as well as minority institutions. This was at first debated at least in so far as majority institutions were concerned. The majority institutions invoked Art. 14 and complained of discrimination. However at a later stage of proceedings Mr. Mohan Kumarmangalam stated that he had instructions to say that any provision held inapplicable to minority institutions would not be enforced against the majority institutions also. Hence it relieves us of the task of considering the matter under Art. 19 (1) (f) not only in respect of minority institutions but in respect of majority institutions also. The provisions of Sec. 63 affect both kinds of institutions alike and must be declared ultra vires in respect of both.
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(6) clearly vest the management and administration in the hands of the two bodies with mandates from the University.15. In attempting to save these provisions Mr. Mohan Kumaramangalam drew attention to two facts only. The first is that the nominees of the educational agencies or the corporate management have the controlling voice and that the defect, if any, must be found in the Statutes, Ordinances, Regulations, Bye-laws and Orders of the University and not in the provisions of the Act. Both these arguments are not acceptable to us. The Constitution contemplates the administration to be in the hands of the particular community. However desirable it might be to associate nominated members of the kind mentioned in Sections 48 and 49 with other members of the governing body or the managing council nominees, it is obvious that their voice must play a considerable part in management. Situations might be conceived when they may have a preponderating voice. In any event, the administration goes to a distinct corporate body with is in no way answerable to the educational agency or the corporate management. The founders have no say in the selection of the members nominated or selected except those to be nominated by them.It is, therefore, clear that by the force of sub-sections (2), (4) and (6) of Sections 48 and 49, the minority community loses the right to administer the institution it has founded.Sub- section (5) also compels the governing body or the managing council to follow the mandates of the University in the administration of the institution. No doubt the Statutes, Ordinances, Regulations, Rules, Byelaws and Orders can also be examined in the light of Art. 30 (1) but the blanket power so given to the University bears adversely upon the right of administration.position is further heightened by the other provisions of the Act16. Section 53, sub-sections (1), (2) and (3) confer on the Syndicate of the University the power to veto even the action of the governing body or the managing council in the selection of the principal.Similarly, sub-section (4) takes away from the educational agency or the corporate management the right to select the teachers. The insistence on merit in sub-section (4) or on seniority-cum-fitness in sub-s. (7) does not save the situation. The power is exercised not by the educational agency or the corporate management but by a distinct and autonomous body under the control of the Syndicate of the University.Indeed, sub-section (9) gives a right of appeal to the Syndicate to any person aggrieved by the action of governing body or the managing council thus making the Syndicate the final and absolute authority in these matters. Coupled with this is the power of Vice-Chancellor and the Syndicate in sub-sections (2) and (4) of Section 56.These provisions clearly take away the disciplinary action from the governing body and the managing council and confer it upon the University.Then comes Section 58This enables political parties to come into the picture of the administration of minority institutions which may not like this interference.When this is coupled with the choice of nominated members left to Government and the University by sub-section (1) (d) of Sections 48 and 49, it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence.18. The remaining provisions of this section lay down an elaborate procedure for management in which even the governing body or the managing council have no say.Sub-section 63 (1) involves the transfer of right to possession of the properties to the University. The High Court rightly pointed out that this section provides for compulsory requisition of the properties within Art. 31 (2) and (2A). To be effective the section required the assent of the President under clause (3) and it was not obtained. Therefore the saving in Art. 31A (1) (b) is not available.We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the administration of these institutions and rob the founders of that right which the Constitution desires should be theirs. The provisions, even if salutary cannot stand in the face of the constitutional guarantee. We do not, therefore, find it necessary to refer to the two reports20. The result of the above analysis of the provisions which have been successfully challenged discloses that the High Court was right in its appreciation of the true position in the light of the Constitution. We agree with the High Court that sub-sections (2) and (4) of Sections 48 and 49 are ultra vires Art. 30 (1). Indeed we think that sub-section (6) of these two sections is also ultra vires. They offend more than the other two of which they are a part and parcel. We also agree that sub-sections (1), (2), (3) and (9) of Sec. 53, sub-sections (2) and (4) of Sec. 56, Sec. 58 (in so far as it removes disqualification which the founders may not like to agree to), and Sec. 63 are ultra vires Article 30 (1) in respect of the minority institutions. The High Court has held that the provisions (except Sec. 63) are also offensive to Art. 19 (1) (f) in so far as the petitioners are citizens of India both in respect of majority as well as minority institutions. This was at first debated at least in so far as majority institutions were concerned. The majority institutions invoked Art. 14 and complained of discrimination. However at a later stage of proceedings Mr. Mohan Kumarmangalam stated that he had instructions to say that any provision held inapplicable to minority institutions would not be enforced against the majority institutions also. Hence it relieves us of the task of considering the matter under Art. 19 (1) (f) not only in respect of minority institutions but in respect of majority institutions also. The provisions of Sec. 63 affect both kinds of institutions alike and must be declared ultra vires in respect of both.
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Murarilal Sarawagi Etc Vs. The State Of Andhra Pradesh | in the contracts between the manganese merchants and the STC did not render these contracts F.O.B. contracts with the foreign buyers form the STC The reason is simple. The contracts between the STC and the foreign buyers are different contracts and it is the STC which entered into independent contracts with their foreign buyers on F.O.B. basis. Under the contracts between the manganese merchants and the STC the merchants were required to bring the goods F.O.B. to the ship named by the STC 9. It has to be appreciated that quite often merchants dealing in goods which are exported out of our country enter into what is called string contracts for purchase of the goods from the factory or the mines for sale to exporters for sale to foreign buyers. The Trading Corporations are often the only authorities allowed to export out of our country. These corporations enter into direct contracts with their foreign buyers for export. The directions given by the Corporations to the merchants to place the goods on board the ship are pursuant to the contracts of sale between the merchants and the Corporation. These directions are not in the course of export, because the export sale is an independent one between the Corporation and their foreign buyers. The taking of the goods from the merchants place to the ship is completely separate from the transit pursuant to the export sale (See Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 at 184-185). 10. In string contracts or chain contracts delivery is made by the original seller and eo instanti it is delivered in implement under each separate contract in the chain. In chair or string contracts starting between the mills or mines or factories and their immediate buyer and ending with the ultimate buyer through several intermediaries not only does the mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. This process of delivery of possession goes all along the chain at the same moment then delivery is made to the steamer. See Duni Chand Rataria vs. Bhuwalka Brothers Ltd. 1955 1 SCR 1071. In F.O.B. contracts the sellers duty is to place the goods "free on board" a ship to be named by the buyer. When the seller delivers the goods for loading on board he normally obtains a mates receipt which he transmits to the buyer and the buyer exchanges this for the proper bill of lading. In this sort of F.O.B. contract the almost universal rule is that property and risk both pass on shipment as soon as the goods are over the ships rail and if it should be material, the property and risk in each part of the cargo will pass as it crosses the ships rail. The loading of the goods in an unconditional appropriation which passes the property. This is not because of any peculiarity of F.O.B. contracts but because in this type of contract the sellers duty is to deliver the goods F.O.B. Once they are on board the seller has delivered them to the buyer and it is natural that they should thereafter be at the buyers risk. 12. Now a days a party which has contracted to sell goods to a foreign buyer may itself buy the goods F.O.B. Indian port from Indian seller in order to fulfil F.O.B. contract with a foreign buyer. 13. This Court in Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 has laid down that the mere mention of F.O.B. price or F.O.B. delivery in a contract between a merchant and the STC which exports the goods under a separate contract with the foreign buyer to the latter will not make the two contracts either integrated or the contract between the merchant and the STC on F.O.B. contract. There cannot be two last purchasers in the sale of same goods within the same State. Similarly, there cannot be two exporters in respect of the same goods. After the decision of the Constitution Bench in Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 the decision in National Tractors, Hubli vs. Commissioner of Commercial Taxes, Bangalore 1971 3 SCC 143 is no longer good law. 14. In the National Tractors case 1971 3 SCC 143 which was a Three Judge Bench decision reliance was placed on the decision in B. K. Wadeyar vs. M/s. Daulatram Rameshwarlal 1961 1 SCR 924. In Wadeyars case 1961 1 SCR 924 this Court said that the normal presumption attaching to F.O.B. contracts is that property in the goods passes only when they are put on board the ship. Wadeyars case 1961 1 SCR 924 was before the Central ST Act, 1956. Further the Bill of Lading, the export licence and the export clause all showed that the export did not commence till the ship left the port. 15. In the National Tractors case 1971 3 SCC 143 it was said that the purchase by the State Trading Corporation from the merchant was in the course of export by the STC to the foreign buyer and, therefore, the purchase by the merchant from the mine owner was the last purchase in the State. The basis of the decision is that these were integrated F.O.B. contracts in the course of export. 16. The decision in National Tractors 1971 3 SCC 143 was made no reference to the decision of this Court in Coffee Board case 1970 3 SCR 147. The correct law is laid down by this Court in the Coffee Board case 1970 3 SCR 147 and Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139. The law is this. It has to be found out whether the contracts between the merchants and the Corporation are integrated contracts in the course of export or they are different. If they are different contracts, as they are in the present case, the last purchaser within the State is the M.M.T.C. | 1[ds]10. In string contracts or chain contracts delivery is made by the original seller and eo instanti it is delivered in implement under each separate contract in the chain. In chair or string contracts starting between the mills or mines or factories and their immediate buyer and ending with the ultimate buyer through several intermediaries not only does the mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. This process of delivery of possession goes all along the chain at the same moment then delivery is made to the steamer. See Duni Chand Rataria vs. Bhuwalka Brothers Ltd. 1955 1 SCR 1071. In F.O.B. contracts the sellers duty is to place the goods "free on board" a ship to be named by the buyer. When the seller delivers the goods for loading on board he normally obtains a mates receipt which he transmits to the buyer and the buyer exchanges this for the proper bill of lading. In this sort of F.O.B. contract the almost universal rule is that property and risk both pass on shipment as soon as the goods are over the ships rail and if it should be material, the property and risk in each part of the cargo will pass as it crosses the ships rail. The loading of the goods in an unconditional appropriation which passes the property. This is not because of any peculiarity of F.O.B. contracts but because in this type of contract the sellers duty is to deliver the goods F.O.B. Once they are on board the seller has delivered them to the buyer and it is natural that they should thereafter be at the buyers risk13. This Court in Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 has laid down that the mere mention of F.O.B. price or F.O.B. delivery in a contract between a merchant and the STC which exports the goods under a separate contract with the foreign buyer to the latter will not make the two contracts either integrated or the contract between the merchant and the STC on F.O.B. contract. There cannot be two last purchasers in the sale of same goods within the same State. Similarly, there cannot be two exporters in respect of the same goods. After the decision of the Constitution Bench in Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 the decision in National Tractors, Hubli vs. Commissioner of Commercial Taxes, Bangalore 1971 3 SCC 143 is no longer good law14. In the National Tractors case 1971 3 SCC 143 which was a Three Judge Bench decision reliance was placed on the decision in B. K. Wadeyar vs. M/s. Daulatram Rameshwarlal 1961 1 SCR 924. In Wadeyars case 1961 1 SCR 924 this Court said that the normal presumption attaching to F.O.B. contracts is that property in the goods passes only when they are put on board the ship. Wadeyars case 1961 1 SCR 924 was before the Central ST Act, 1956. Further the Bill of Lading, the export licence and the export clause all showed that the export did not commence till the ship left the port15. In the National Tractors case 1971 3 SCC 143 it was said that the purchase by the State Trading Corporation from the merchant was in the course of export by the STC to the foreign buyer and, therefore, the purchase by the merchant from the mine owner was the last purchase in the State. The basis of the decision is that these were integrated F.O.B. contracts in the course of export16. The decision in National Tractors 1971 3 SCC 143 was made no reference to the decision of this Court in Coffee Board case 1970 3 SCR 147. The correct law is laid down by this Court in the Coffee Board case 1970 3 SCR 147 and Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139. The law is this. It has to be found out whether the contracts between the merchants and the Corporation are integrated contracts in the course of export or they are different. If they are different contracts, as they are in the present case, the last purchaser within the State is the M.M.T.C. | 1 | 2,111 | 773 | ### 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:
in the contracts between the manganese merchants and the STC did not render these contracts F.O.B. contracts with the foreign buyers form the STC The reason is simple. The contracts between the STC and the foreign buyers are different contracts and it is the STC which entered into independent contracts with their foreign buyers on F.O.B. basis. Under the contracts between the manganese merchants and the STC the merchants were required to bring the goods F.O.B. to the ship named by the STC 9. It has to be appreciated that quite often merchants dealing in goods which are exported out of our country enter into what is called string contracts for purchase of the goods from the factory or the mines for sale to exporters for sale to foreign buyers. The Trading Corporations are often the only authorities allowed to export out of our country. These corporations enter into direct contracts with their foreign buyers for export. The directions given by the Corporations to the merchants to place the goods on board the ship are pursuant to the contracts of sale between the merchants and the Corporation. These directions are not in the course of export, because the export sale is an independent one between the Corporation and their foreign buyers. The taking of the goods from the merchants place to the ship is completely separate from the transit pursuant to the export sale (See Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 at 184-185). 10. In string contracts or chain contracts delivery is made by the original seller and eo instanti it is delivered in implement under each separate contract in the chain. In chair or string contracts starting between the mills or mines or factories and their immediate buyer and ending with the ultimate buyer through several intermediaries not only does the mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. This process of delivery of possession goes all along the chain at the same moment then delivery is made to the steamer. See Duni Chand Rataria vs. Bhuwalka Brothers Ltd. 1955 1 SCR 1071. In F.O.B. contracts the sellers duty is to place the goods "free on board" a ship to be named by the buyer. When the seller delivers the goods for loading on board he normally obtains a mates receipt which he transmits to the buyer and the buyer exchanges this for the proper bill of lading. In this sort of F.O.B. contract the almost universal rule is that property and risk both pass on shipment as soon as the goods are over the ships rail and if it should be material, the property and risk in each part of the cargo will pass as it crosses the ships rail. The loading of the goods in an unconditional appropriation which passes the property. This is not because of any peculiarity of F.O.B. contracts but because in this type of contract the sellers duty is to deliver the goods F.O.B. Once they are on board the seller has delivered them to the buyer and it is natural that they should thereafter be at the buyers risk. 12. Now a days a party which has contracted to sell goods to a foreign buyer may itself buy the goods F.O.B. Indian port from Indian seller in order to fulfil F.O.B. contract with a foreign buyer. 13. This Court in Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 has laid down that the mere mention of F.O.B. price or F.O.B. delivery in a contract between a merchant and the STC which exports the goods under a separate contract with the foreign buyer to the latter will not make the two contracts either integrated or the contract between the merchant and the STC on F.O.B. contract. There cannot be two last purchasers in the sale of same goods within the same State. Similarly, there cannot be two exporters in respect of the same goods. After the decision of the Constitution Bench in Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 the decision in National Tractors, Hubli vs. Commissioner of Commercial Taxes, Bangalore 1971 3 SCC 143 is no longer good law. 14. In the National Tractors case 1971 3 SCC 143 which was a Three Judge Bench decision reliance was placed on the decision in B. K. Wadeyar vs. M/s. Daulatram Rameshwarlal 1961 1 SCR 924. In Wadeyars case 1961 1 SCR 924 this Court said that the normal presumption attaching to F.O.B. contracts is that property in the goods passes only when they are put on board the ship. Wadeyars case 1961 1 SCR 924 was before the Central ST Act, 1956. Further the Bill of Lading, the export licence and the export clause all showed that the export did not commence till the ship left the port. 15. In the National Tractors case 1971 3 SCC 143 it was said that the purchase by the State Trading Corporation from the merchant was in the course of export by the STC to the foreign buyer and, therefore, the purchase by the merchant from the mine owner was the last purchase in the State. The basis of the decision is that these were integrated F.O.B. contracts in the course of export. 16. The decision in National Tractors 1971 3 SCC 143 was made no reference to the decision of this Court in Coffee Board case 1970 3 SCR 147. The correct law is laid down by this Court in the Coffee Board case 1970 3 SCR 147 and Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139. The law is this. It has to be found out whether the contracts between the merchants and the Corporation are integrated contracts in the course of export or they are different. If they are different contracts, as they are in the present case, the last purchaser within the State is the M.M.T.C.
### Response:
1
### Explanation:
10. In string contracts or chain contracts delivery is made by the original seller and eo instanti it is delivered in implement under each separate contract in the chain. In chair or string contracts starting between the mills or mines or factories and their immediate buyer and ending with the ultimate buyer through several intermediaries not only does the mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. This process of delivery of possession goes all along the chain at the same moment then delivery is made to the steamer. See Duni Chand Rataria vs. Bhuwalka Brothers Ltd. 1955 1 SCR 1071. In F.O.B. contracts the sellers duty is to place the goods "free on board" a ship to be named by the buyer. When the seller delivers the goods for loading on board he normally obtains a mates receipt which he transmits to the buyer and the buyer exchanges this for the proper bill of lading. In this sort of F.O.B. contract the almost universal rule is that property and risk both pass on shipment as soon as the goods are over the ships rail and if it should be material, the property and risk in each part of the cargo will pass as it crosses the ships rail. The loading of the goods in an unconditional appropriation which passes the property. This is not because of any peculiarity of F.O.B. contracts but because in this type of contract the sellers duty is to deliver the goods F.O.B. Once they are on board the seller has delivered them to the buyer and it is natural that they should thereafter be at the buyers risk13. This Court in Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 has laid down that the mere mention of F.O.B. price or F.O.B. delivery in a contract between a merchant and the STC which exports the goods under a separate contract with the foreign buyer to the latter will not make the two contracts either integrated or the contract between the merchant and the STC on F.O.B. contract. There cannot be two last purchasers in the sale of same goods within the same State. Similarly, there cannot be two exporters in respect of the same goods. After the decision of the Constitution Bench in Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139 the decision in National Tractors, Hubli vs. Commissioner of Commercial Taxes, Bangalore 1971 3 SCC 143 is no longer good law14. In the National Tractors case 1971 3 SCC 143 which was a Three Judge Bench decision reliance was placed on the decision in B. K. Wadeyar vs. M/s. Daulatram Rameshwarlal 1961 1 SCR 924. In Wadeyars case 1961 1 SCR 924 this Court said that the normal presumption attaching to F.O.B. contracts is that property in the goods passes only when they are put on board the ship. Wadeyars case 1961 1 SCR 924 was before the Central ST Act, 1956. Further the Bill of Lading, the export licence and the export clause all showed that the export did not commence till the ship left the port15. In the National Tractors case 1971 3 SCC 143 it was said that the purchase by the State Trading Corporation from the merchant was in the course of export by the STC to the foreign buyer and, therefore, the purchase by the merchant from the mine owner was the last purchase in the State. The basis of the decision is that these were integrated F.O.B. contracts in the course of export16. The decision in National Tractors 1971 3 SCC 143 was made no reference to the decision of this Court in Coffee Board case 1970 3 SCR 147. The correct law is laid down by this Court in the Coffee Board case 1970 3 SCR 147 and Serajuddins case 1975 Supp. SCR 169 : 1975 CTR (SC) 139. The law is this. It has to be found out whether the contracts between the merchants and the Corporation are integrated contracts in the course of export or they are different. If they are different contracts, as they are in the present case, the last purchaser within the State is the M.M.T.C.
|
Commissioner of Income Tax Vs. Gujarat Cypromet Ltd | incurred by the Assessee according to the method of accounting regularly employed by him) only in computing the income referred to in Section 28 of that previous year in which such sum is actually paid by him. 8. As noted above, Explanation 3C was inserted by the Finance Act, 2006, with retrospective effect from April 1, 1989 which is to the following effect: Explanation 3C.--For the removal of doubts, it is hereby declared that a deduction of any sum, being interest payable under Clause (d) of this section, shall be allowed if such interest has been actually paid and any interest referred to in that Clause which has been converted into a loan or borrowing shall not be deemed to have been actually paid. 9. The appellate authority has noticed the facts in para 12 as extracted above which needs no repetition. 10. The interest liability which accrued during the relevant assessment year was not actually paid back by the Assessee rather was sought to be adjusted in the further loan of Rs. 8 crores which was obtained by the Industrial Development Bank of India. 11. The judgment of the Delhi High Court relied upon by the learned Counsel for the Appellant refers to Section 43B as well as Explanation 3C and held that Explanation 3C having retrospective effect with effect from April 1, 1989 shall be applicable to the year in question. The Delhi High Court in its judgment has referred to the judgment of the Madhya Pradesh High Court in Eicher Motors Limited (supra). It is useful to refer to paras 11 and 12 of the judgment. 12. In so concluding, this Court is supported by the decision of the Madhya Pradesh High Court in Eicher Motors Ltd. v. CIT (2009) 315 ITR 312 (MP) and subsequently, the judgment of the High Court of Telangana and Andhra Pradesh in CIT v. Pennar Profiles Limited (ITA No. 289 of 2003, decided on February 11, 2015 (2015) 376 ITR 355 (T&AP)). In Eicher Motors, the court noted2: As observed supra, Explanation 3C has now in clear terms provided that such conversion of interest amount into loan shall not be deemed to be regarded as actually paid amount within the meaning of Section 43B. In view of clear legislative mandate removing this doubt and making the intention of the Legislature clear in relation to such transaction, it is not now necessary for this Court to interpret the unamended Section 43B in detail, nor is it necessary for this Court to take note of facts in detail as also the submissions urged in support of various contentions except to place reliance on Explanation 3C to Section 43B and answer the questions against the Assessee and in favour of Revenue. The court in Pennar Profiles Limited (supra) considered the decisions in Mahindra Nissan Allywin Ltd. [1998] 233 ITR 493 (AP), Vinir Engineering P. Ltd. [2009] 313 ITR 154 (Karn) and Eicher Motors (supra) and held as follows (page 359 of 376 ITR): In this backdrop, we have perused the provisions contained in Section 43B of the Act, in particular, Explanation 3C thereof, which was inserted by the Finance Act, 2006 with retrospective effect from April 1, 1989. This provision was inserted in 2006 and hence, this Court in Mahindra Nissans case, had no occasion to deal with the case in the light of this provision. In so far as the Karnataka High Court is concerned, though this provision was existing on the date of judgment, it appears that it was not brought to the notice of learned Judges and, hence, the Division Bench proceeded to consider and decide the appeal of the Assessee without referring to Explanation 3C appended to Section 43B of the Act. As a matter of fact, from reading of Explanation 3C, in our opinion, the question as raised in the present appeals stands answered without further discussion. This provision was inserted for removal of doubts and it was declared that deduction of any sum, being interest payable under Clause (d) of Section 43B of the Act, shall be allowed if such interest has been actually paid and any interest referred to in that clause, which has been converted into a loan or borrowing, shall not be deemed to have been actually paid. Thus, the doubt stands removed in view of Explanation 3C. This provision was considered by the Madhya Pradesh High Court in Eicher Motors Limited v. CIT to hold that in view of Explanation 3C appended to Section 43B with retrospective effect from April 1, 1989, conversion of interest amount into loan would not be deemed to be regarded as actually paid amount within the meaning of Section 43B of the Act. In the light of the introduction of Explanation 3C, this Court does not consider it necessary to discuss the precedents relied upon by the Assessee delivered prior to the enactment of Finance Act, 2006. As regards the decision in Shakti Spring Industries P. Ltd. [2013] 219 Taxman 124 (Jharkhand) (Mag.), the interest due in that case was offset against a subsidy which the Assessee was entitled to, and it did not involve an instance where it was converted into a loan or borrowing within the meaning of Explanation 3C. It is perhaps for this reason that Explanation 3C was not discussed. 13. In the impugned judgment, the Gujarat High Court has relied upon Bhagwati Autocast Ltd. (supra) which was not a case covered by Section 43B(d) rather was a case of Section 43B(a). The provisions of Section 43B covers a host of different situations. The statutory Explanation 3C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3C, we are, thus, of the view that the Assessing Officer has rightly disallowed the deduction as claimed by the Assessee. The appellate authority, the Income-tax Appellate Tribunal and the High Court erred in reversing the said disallowance. | 1[ds]9. The appellate authority has noticed the facts in para 12 as extracted above which needs no repetition10. The interest liability which accrued during the relevant assessment year was not actually paid back by the Assessee rather was sought to be adjusted in the further loan of Rs. 8 crores which was obtained by the Industrial Development Bank of India12. In so concluding, this Court is supported by the decision of the Madhya Pradesh High Court in Eicher Motors Ltd. v. CIT (2009) 315 ITR 312 (MP) and subsequently, the judgment of the High Court of Telangana and Andhra Pradesh in CIT v. Pennar Profiles Limited (ITA No. 289 of 2003, decided on February 11, 2015 (2015) 376 ITR 355 (T&AP)). In Eicher Motors, the court noted2:As observed supra, Explanation 3C has now in clear terms provided that such conversion of interest amount into loan shall not be deemed to be regarded as actually paid amount within the meaning of Section 43B. In view of clear legislative mandate removing this doubt and making the intention of the Legislature clear in relation to such transaction, it is not now necessary for this Court to interpret the unamended Section 43B in detail, nor is it necessary for this Court to take note of facts in detail as also the submissions urged in support of various contentions except to place reliance on Explanation 3C to Section 43B and answer the questions against the Assessee and in favour of RevenueThe court in Pennar Profiles Limited (supra) considered the decisions in Mahindra Nissan Allywin Ltd. [1998] 233 ITR 493 (AP), Vinir Engineering P. Ltd. [2009] 313 ITR 154 (Karn) and Eicher Motors (supra) and held as follows (page 359 of 376 ITR):In this backdrop, we have perused the provisions contained in Section 43B of the Act, in particular, Explanation 3C thereof, which was inserted by the Finance Act, 2006 with retrospective effect from April 1, 1989. This provision was inserted in 2006 and hence, this Court in Mahindra Nissans case, had no occasion to deal with the case in the light of this provision. In so far as the Karnataka High Court is concerned, though this provision was existing on the date of judgment, it appears that it was not brought to the notice of learned Judges and, hence, the Division Bench proceeded to consider and decide the appeal of the Assessee without referring to Explanation 3C appended to Section 43B of the ActAs a matter of fact, from reading of Explanation 3C, in our opinion, the question as raised in the present appeals stands answered without further discussion. This provision was inserted for removal of doubts and it was declared that deduction of any sum, being interest payable under Clause (d) of Section 43B of the Act, shall be allowed if such interest has been actually paid and any interest referred to in that clause, which has been converted into a loan or borrowing, shall not be deemed to have been actually paid. Thus, the doubt stands removed in view of Explanation 3C. This provision was considered by the Madhya Pradesh High Court in Eicher Motors Limited v. CIT to hold that in view of Explanation 3C appended to Section 43B with retrospective effect from April 1, 1989, conversion of interest amount into loan would not be deemed to be regarded as actually paid amount within the meaning of Section 43B of the Act.In the light of the introduction of Explanation 3C, this Court does not consider it necessary to discuss the precedents relied upon by the Assessee delivered prior to the enactment of Finance Act, 2006. As regards the decision in Shakti Spring Industries P. Ltd. [2013] 219 Taxman 124 (Jharkhand) (Mag.), the interest due in that case was offset against a subsidy which the Assessee was entitled to, and it did not involve an instance where it was converted into a loan or borrowing within the meaning of Explanation 3C. It is perhaps for this reason that Explanation 3C was not discussed13. In the impugned judgment, the Gujarat High Court has relied upon Bhagwati Autocast Ltd. (supra) which was not a case covered by Section 43B(d) rather was a case of Section 43B(a). The provisions of Section 43B covers a host of different situations. The statutory Explanation 3C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3C, we are, thus, of the view that the Assessing Officer has rightly disallowed the deduction as claimed by the Assessee. The appellate authority, the Income-tax Appellate Tribunal and the High Court erred in reversing the said disallowance. | 1 | 2,364 | 896 | ### 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:
incurred by the Assessee according to the method of accounting regularly employed by him) only in computing the income referred to in Section 28 of that previous year in which such sum is actually paid by him. 8. As noted above, Explanation 3C was inserted by the Finance Act, 2006, with retrospective effect from April 1, 1989 which is to the following effect: Explanation 3C.--For the removal of doubts, it is hereby declared that a deduction of any sum, being interest payable under Clause (d) of this section, shall be allowed if such interest has been actually paid and any interest referred to in that Clause which has been converted into a loan or borrowing shall not be deemed to have been actually paid. 9. The appellate authority has noticed the facts in para 12 as extracted above which needs no repetition. 10. The interest liability which accrued during the relevant assessment year was not actually paid back by the Assessee rather was sought to be adjusted in the further loan of Rs. 8 crores which was obtained by the Industrial Development Bank of India. 11. The judgment of the Delhi High Court relied upon by the learned Counsel for the Appellant refers to Section 43B as well as Explanation 3C and held that Explanation 3C having retrospective effect with effect from April 1, 1989 shall be applicable to the year in question. The Delhi High Court in its judgment has referred to the judgment of the Madhya Pradesh High Court in Eicher Motors Limited (supra). It is useful to refer to paras 11 and 12 of the judgment. 12. In so concluding, this Court is supported by the decision of the Madhya Pradesh High Court in Eicher Motors Ltd. v. CIT (2009) 315 ITR 312 (MP) and subsequently, the judgment of the High Court of Telangana and Andhra Pradesh in CIT v. Pennar Profiles Limited (ITA No. 289 of 2003, decided on February 11, 2015 (2015) 376 ITR 355 (T&AP)). In Eicher Motors, the court noted2: As observed supra, Explanation 3C has now in clear terms provided that such conversion of interest amount into loan shall not be deemed to be regarded as actually paid amount within the meaning of Section 43B. In view of clear legislative mandate removing this doubt and making the intention of the Legislature clear in relation to such transaction, it is not now necessary for this Court to interpret the unamended Section 43B in detail, nor is it necessary for this Court to take note of facts in detail as also the submissions urged in support of various contentions except to place reliance on Explanation 3C to Section 43B and answer the questions against the Assessee and in favour of Revenue. The court in Pennar Profiles Limited (supra) considered the decisions in Mahindra Nissan Allywin Ltd. [1998] 233 ITR 493 (AP), Vinir Engineering P. Ltd. [2009] 313 ITR 154 (Karn) and Eicher Motors (supra) and held as follows (page 359 of 376 ITR): In this backdrop, we have perused the provisions contained in Section 43B of the Act, in particular, Explanation 3C thereof, which was inserted by the Finance Act, 2006 with retrospective effect from April 1, 1989. This provision was inserted in 2006 and hence, this Court in Mahindra Nissans case, had no occasion to deal with the case in the light of this provision. In so far as the Karnataka High Court is concerned, though this provision was existing on the date of judgment, it appears that it was not brought to the notice of learned Judges and, hence, the Division Bench proceeded to consider and decide the appeal of the Assessee without referring to Explanation 3C appended to Section 43B of the Act. As a matter of fact, from reading of Explanation 3C, in our opinion, the question as raised in the present appeals stands answered without further discussion. This provision was inserted for removal of doubts and it was declared that deduction of any sum, being interest payable under Clause (d) of Section 43B of the Act, shall be allowed if such interest has been actually paid and any interest referred to in that clause, which has been converted into a loan or borrowing, shall not be deemed to have been actually paid. Thus, the doubt stands removed in view of Explanation 3C. This provision was considered by the Madhya Pradesh High Court in Eicher Motors Limited v. CIT to hold that in view of Explanation 3C appended to Section 43B with retrospective effect from April 1, 1989, conversion of interest amount into loan would not be deemed to be regarded as actually paid amount within the meaning of Section 43B of the Act. In the light of the introduction of Explanation 3C, this Court does not consider it necessary to discuss the precedents relied upon by the Assessee delivered prior to the enactment of Finance Act, 2006. As regards the decision in Shakti Spring Industries P. Ltd. [2013] 219 Taxman 124 (Jharkhand) (Mag.), the interest due in that case was offset against a subsidy which the Assessee was entitled to, and it did not involve an instance where it was converted into a loan or borrowing within the meaning of Explanation 3C. It is perhaps for this reason that Explanation 3C was not discussed. 13. In the impugned judgment, the Gujarat High Court has relied upon Bhagwati Autocast Ltd. (supra) which was not a case covered by Section 43B(d) rather was a case of Section 43B(a). The provisions of Section 43B covers a host of different situations. The statutory Explanation 3C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3C, we are, thus, of the view that the Assessing Officer has rightly disallowed the deduction as claimed by the Assessee. The appellate authority, the Income-tax Appellate Tribunal and the High Court erred in reversing the said disallowance.
### Response:
1
### Explanation:
9. The appellate authority has noticed the facts in para 12 as extracted above which needs no repetition10. The interest liability which accrued during the relevant assessment year was not actually paid back by the Assessee rather was sought to be adjusted in the further loan of Rs. 8 crores which was obtained by the Industrial Development Bank of India12. In so concluding, this Court is supported by the decision of the Madhya Pradesh High Court in Eicher Motors Ltd. v. CIT (2009) 315 ITR 312 (MP) and subsequently, the judgment of the High Court of Telangana and Andhra Pradesh in CIT v. Pennar Profiles Limited (ITA No. 289 of 2003, decided on February 11, 2015 (2015) 376 ITR 355 (T&AP)). In Eicher Motors, the court noted2:As observed supra, Explanation 3C has now in clear terms provided that such conversion of interest amount into loan shall not be deemed to be regarded as actually paid amount within the meaning of Section 43B. In view of clear legislative mandate removing this doubt and making the intention of the Legislature clear in relation to such transaction, it is not now necessary for this Court to interpret the unamended Section 43B in detail, nor is it necessary for this Court to take note of facts in detail as also the submissions urged in support of various contentions except to place reliance on Explanation 3C to Section 43B and answer the questions against the Assessee and in favour of RevenueThe court in Pennar Profiles Limited (supra) considered the decisions in Mahindra Nissan Allywin Ltd. [1998] 233 ITR 493 (AP), Vinir Engineering P. Ltd. [2009] 313 ITR 154 (Karn) and Eicher Motors (supra) and held as follows (page 359 of 376 ITR):In this backdrop, we have perused the provisions contained in Section 43B of the Act, in particular, Explanation 3C thereof, which was inserted by the Finance Act, 2006 with retrospective effect from April 1, 1989. This provision was inserted in 2006 and hence, this Court in Mahindra Nissans case, had no occasion to deal with the case in the light of this provision. In so far as the Karnataka High Court is concerned, though this provision was existing on the date of judgment, it appears that it was not brought to the notice of learned Judges and, hence, the Division Bench proceeded to consider and decide the appeal of the Assessee without referring to Explanation 3C appended to Section 43B of the ActAs a matter of fact, from reading of Explanation 3C, in our opinion, the question as raised in the present appeals stands answered without further discussion. This provision was inserted for removal of doubts and it was declared that deduction of any sum, being interest payable under Clause (d) of Section 43B of the Act, shall be allowed if such interest has been actually paid and any interest referred to in that clause, which has been converted into a loan or borrowing, shall not be deemed to have been actually paid. Thus, the doubt stands removed in view of Explanation 3C. This provision was considered by the Madhya Pradesh High Court in Eicher Motors Limited v. CIT to hold that in view of Explanation 3C appended to Section 43B with retrospective effect from April 1, 1989, conversion of interest amount into loan would not be deemed to be regarded as actually paid amount within the meaning of Section 43B of the Act.In the light of the introduction of Explanation 3C, this Court does not consider it necessary to discuss the precedents relied upon by the Assessee delivered prior to the enactment of Finance Act, 2006. As regards the decision in Shakti Spring Industries P. Ltd. [2013] 219 Taxman 124 (Jharkhand) (Mag.), the interest due in that case was offset against a subsidy which the Assessee was entitled to, and it did not involve an instance where it was converted into a loan or borrowing within the meaning of Explanation 3C. It is perhaps for this reason that Explanation 3C was not discussed13. In the impugned judgment, the Gujarat High Court has relied upon Bhagwati Autocast Ltd. (supra) which was not a case covered by Section 43B(d) rather was a case of Section 43B(a). The provisions of Section 43B covers a host of different situations. The statutory Explanation 3C inserted by the Finance Act, 2006 is squarely applicable in the facts of the present case. It appears that the attention of the High Court was not invited to Explanation 3C, we are, thus, of the view that the Assessing Officer has rightly disallowed the deduction as claimed by the Assessee. The appellate authority, the Income-tax Appellate Tribunal and the High Court erred in reversing the said disallowance.
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Magiti Sasamal Vs. Pandab Bissoi | about the status of the respondents was framed and so it had to be tried by the civil court. In such a suit if the civil court holds that the relationship between the landlord and the tenant had not been established it may proceed to deal with the suit on the merits. If, however, it holds that the said relationship is established then the civil court cannot deal with the dispute between the parties if it falls within any one of the categories specified by S. 7(1). In such a case, having made the finding about the relationship between the parties the civil court will either dismiss the suit on the ground that it can give no relief to the landlord, or may, if it is permissible to do so, return the plaint for presentation to the Collector. What course should be adopted in such a case it is unnecessary for us to decide in the present appeal. All that we wish to emphasise is that the initial dispute between the parties about the relationship subsisting between them will still continue to be tried by the civil court and is outside the purview of S. 7(1).13. In support of the argument that a dispute as to the existence of relationship as landlord and tenant should be taken to be included under S. 7(1) reliance is placed on the provisions of S. 8(1) of the Act. Section 8(1) provides that subject to the provisions, of S. 7 all disputes arising between landlord and tenant shall be cognisable by the revenue court and shall not be cognisable by the civil court. It must be pointed out that we are really not concerned with S. 8(1) in the present appeal because even according to the respondents the present dispute between the parties attracted S.7(1) and should have been tried by the Collector and not by the civil court. However, the question about the construction of S. 8 (1) has been incidentally raised before us. In appreciating the scope and effect of S. 8(1) it is necessary to bear in mind the provisions of S. 13 of the Act The said section provides that the Act shall, as far as may be, be read and construed as forming part of the Madras Estates Land Act, 1908 or as the case may be, of the Orissa Tenancy Act, 1918. Therefore, reading the provisions of S. 8 (1) and S. 13 together it follows that all that S. 8(1) provides is that except for the disputes covered by S. 7(1) all disputes arising between landlord and tenant shall be cognisable by the revenue court and to the trial of such disputes by the revenue court the relevant provisions of the Orissa Tenancy Act, 1913 would apply. It is true that disputes to which S. 8(1) applies are entrusted to the exclusive jurisdiction of the revenue courts and are excluded from the jurisdiction of civil courts, but the effect of this provision will have to be considered in the light of the other relevant provisions if the parent Act of which this temporary Act forms a part. Now, if we turn to some of the relevant provisions of the parent Act it would be clear that when the revenue courts are given jurisdiction to try the disputes the enquiry held by them purports to be a formal enquiry to which the provisions of the Code of civil Procedure may apply (Vide: S. 192 of the Orissa Tenancy Act, 1913). Similarly, the provisions of S. 204 (1) which provides for appeals contemplate appeals to the District Court and the High Court where questions of title are involved. These provisions illustrate the point that where serious disputes about title are entrusted to special tribunals usually the Legislature contemplates a formal enquiry and makes the provisions of the Code of Civil Procedure applicable to such an enquiry and provides for appropriate appeals. Now, in regard to the order passed by the Collector under S.7 (1) the only provision about appeals is that by S. 11 which provides that an appeal shall be to the prescribed superior revenue authority whose decision shall be final, and shall not be subject to any further appeal or revision. Departure made by the Legislature in providing only one appeal and that too in every case to the prescribed superior revenue authority clearly brings out that the disputes which are entrusted to the Collector under S. 7 (1) are the simple disputes specified in the five categories and do not include a serious dispute the that of the relationship between the parties as landlord and tenant. If such a dispute had been intended to be tried by the Collector the Legislature would have provided for a formal enquiry and would have prescribed appropriate appeals on the lines of Ss. 192 and 204 of the parent Act.14. In this connection we may in passing refer to the provisions of S. 126 of the parent Act. This section deals with the jurisdiction of civil courts in matters relating to rent. Section 126 (3) provides for the institution of suits in civil courts on the grounds specified by Cls. (a) to (g). Clause (c) deals with the ground that the relationship of landlord and tenant does not exist. This clause shows that if a dispute arose between the parties as to the existence of the relationship of landlord and tenant a suit in a civil court as contemplated is prescribed by S. 126 (3) (c). That also has some bearing on the construction of S. 7(1) and it is for that limited purpose that we have referred to it. Therefore, we are satisfied that the High Court was in error in holding that under S. 7(1) of the Act it was competent to the Collector to try the issue between the appellant and the respondents whether or not the respondents were the tenants of the appellant and that the civil court had not jurisdiction to entertain the said dispute. | 1[ds]It would thus be seen that the Act purports to provide protection to tenants who were in possession of lands on the appointed day which is September 1, 1947. The other sub-sections of S. 3 make material and subsidiary provisions in regard to the said protection.It is true that having regard to the beneficent object which the Legislature had in view in passing the Act its material provisions should be liberally construed. The Legislature intends that the disputes contemplated by the said material provisions should be tried not by ordinary civil courts but by tribunals specially designated by it, and so in dealing with the scope and effect of the jurisdiction of such tribunals the relevant words used in the section should receive not a narrow but a liberalcan be no doubt that ordinarily a dispute in regard to the relationship between the parties such as that between a landlord and a tenant would be a dispute of a civil nature and would fall within the competence of the civil court. If the respondents contend that the jurisdiction of the civil court to deal with such a civil dispute has been taken away by S. 7(1) we must enquire whether S. 7(1) expressly takes away the said jurisdiction or whether the material words used in the section lead to such an inference or the scheme of the Act inescapably establishes such an inference. The relevance and materiality of both these principles are not inis the plain and obvious construction of the words "any dispute as regards". On this construction it would be unreasonable to hold that a dispute about the status of the tenant also falls within the purview of the said section. The scheme of S. 7.(1) is unambiguous and clear. It refers to the tenant and landlord as such and it contemplates disputes of the specified character arising between them. Therefore, in our opinion, even on a liberal construction of S. 7(1) it would be difficult to uphold the argument that a dispute as regards the existence of the relationship of landlord and tenant falls to be determined by the Collector under S.is significant that the making of the enquiry and its mode are left to the discretion of the Collector.. If a serious dispute as to the existence of the relationship of landlord and tenant between the parties had been covered by S. 7(1) it is difficult to imagine that the Legislature would have left the decision of such an important issue to the Collector giving him full freedom to make such enquiries as he may deem necessary. As is well known, a dispute as to the existence of the relationship of landlord and tenant raises serious questions of fact for decision, and if such a serious dispute was intended to be tried by the Collector the Legislature would have provided for an appropriate enquiry in that behalf and would have made the provisions of the Code of Civil Procedure applicable to such an enquiry. Section 7(2) can be easily explained on the basis that the relationship between the parties is outside S. 7(1) and so the disputes that are covered by S. 7(1) are not of such a nature as would justify a formal enquiry in that behalf. The provisions of sub-ss. (3), (6) and (7) also indicate that the relationship between the parties is not, and cannot be, disputed before the Collector. The parties arrayed before him are landlord and tenant or vice versa, and it is on the basis of such relationship between them that he proceeds to deal with the disputes entrusted to him by S. 7(1).12. It is true that when the relationship of landlord and tenant is proved or admitted the disputes falling within the five categories enumerated in S. 7(1) will have to be tried by the Collector. Let us take the present case itself to illustrate how S. 7(1) will operate. In the suit filed by the appellant against the respondents the issue about the status of the respondents was framed and so it had to be tried by the civil court. In such a suit if the civil court holds that the relationship between the landlord and the tenant had not been established it may proceed to deal with the suit on the merits. If, however, it holds that the said relationship is established then the civil court cannot deal with the dispute between the parties if it falls within any one of the categories specified by S. 7(1). In such a case, having made the finding about the relationship between the parties the civil court will either dismiss the suit on the ground that it can give no relief to the landlord, or may, if it is permissible to do so, return the plaint for presentation to the Collector. What course should be adopted in such a case it is unnecessary for us to decide in the present appeal. All that we wish to emphasise is that the initial dispute between the parties about the relationship subsisting between them will still continue to be tried by the civil court and is outside the purview of S.must be pointed out that we are really not concerned with S. 8(1) in the present appeal because even according to the respondents the present dispute between the parties attracted S.7(1) and should have been tried by the Collector and not by the civil court. However, the question about the construction of S. 8 (1) has been incidentally raised beforereading the provisions of S. 8 (1) and S. 13 together it follows that all that S. 8(1) provides is that except for the disputes covered by S. 7(1) all disputes arising between landlord and tenant shall be cognisable by the revenue court and to the trial of such disputes by the revenue court the relevant provisions of the Orissa Tenancy Act, 1913 would apply. It is true that disputes to which S. 8(1) applies are entrusted to the exclusive jurisdiction of the revenue courts and are excluded from the jurisdiction of civil courts, but the effect of this provision will have to be considered in the light of the other relevant provisions if the parent Act of which this temporary Act forms a part. Now, if we turn to some of the relevant provisions of the parent Act it would be clear that when the revenue courts are given jurisdiction to try the disputes the enquiry held by them purports to be a formal enquiry to which the provisions of the Code of civil Procedure mayDeparture made by the Legislature in providing only one appeal and that too in every case to the prescribed superior revenue authority clearly brings out that the disputes which are entrusted to the Collector under S. 7 (1) are the simple disputes specified in the five categories and do not include a serious dispute the that of the relationship between the parties as landlord and tenant. If such a dispute had been intended to be tried by the Collector the Legislature would have provided for a formal enquiry and would have prescribed appropriate appeals on the lines of Ss. 192 and 204 of the parent Act.14. In this connection we may in passing refer to the provisions of S. 126 of the parent Act. This section deals with the jurisdiction of civil courts in matters relating to rent. Section 126 (3) provides for the institution of suits in civil courts on the grounds specified by Cls. (a) to (g). Clause (c) deals with the ground that the relationship of landlord and tenant does not exist. This clause shows that if a dispute arose between the parties as to the existence of the relationship of landlord and tenant a suit in a civil court as contemplated is prescribed by S. 126 (3) (c). That also has some bearing on the construction of S. 7(1) and it is for that limited purpose that we have referred to it. Therefore, we are satisfied that the High Court was in error in holding that under S. 7(1) of the Act it was competent to the Collector to try the issue between the appellant and the respondents whether or not the respondents were the tenants of the appellant and that the civil court had not jurisdiction to entertain the said dispute. | 1 | 3,758 | 1,538 | ### Instruction:
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about the status of the respondents was framed and so it had to be tried by the civil court. In such a suit if the civil court holds that the relationship between the landlord and the tenant had not been established it may proceed to deal with the suit on the merits. If, however, it holds that the said relationship is established then the civil court cannot deal with the dispute between the parties if it falls within any one of the categories specified by S. 7(1). In such a case, having made the finding about the relationship between the parties the civil court will either dismiss the suit on the ground that it can give no relief to the landlord, or may, if it is permissible to do so, return the plaint for presentation to the Collector. What course should be adopted in such a case it is unnecessary for us to decide in the present appeal. All that we wish to emphasise is that the initial dispute between the parties about the relationship subsisting between them will still continue to be tried by the civil court and is outside the purview of S. 7(1).13. In support of the argument that a dispute as to the existence of relationship as landlord and tenant should be taken to be included under S. 7(1) reliance is placed on the provisions of S. 8(1) of the Act. Section 8(1) provides that subject to the provisions, of S. 7 all disputes arising between landlord and tenant shall be cognisable by the revenue court and shall not be cognisable by the civil court. It must be pointed out that we are really not concerned with S. 8(1) in the present appeal because even according to the respondents the present dispute between the parties attracted S.7(1) and should have been tried by the Collector and not by the civil court. However, the question about the construction of S. 8 (1) has been incidentally raised before us. In appreciating the scope and effect of S. 8(1) it is necessary to bear in mind the provisions of S. 13 of the Act The said section provides that the Act shall, as far as may be, be read and construed as forming part of the Madras Estates Land Act, 1908 or as the case may be, of the Orissa Tenancy Act, 1918. Therefore, reading the provisions of S. 8 (1) and S. 13 together it follows that all that S. 8(1) provides is that except for the disputes covered by S. 7(1) all disputes arising between landlord and tenant shall be cognisable by the revenue court and to the trial of such disputes by the revenue court the relevant provisions of the Orissa Tenancy Act, 1913 would apply. It is true that disputes to which S. 8(1) applies are entrusted to the exclusive jurisdiction of the revenue courts and are excluded from the jurisdiction of civil courts, but the effect of this provision will have to be considered in the light of the other relevant provisions if the parent Act of which this temporary Act forms a part. Now, if we turn to some of the relevant provisions of the parent Act it would be clear that when the revenue courts are given jurisdiction to try the disputes the enquiry held by them purports to be a formal enquiry to which the provisions of the Code of civil Procedure may apply (Vide: S. 192 of the Orissa Tenancy Act, 1913). Similarly, the provisions of S. 204 (1) which provides for appeals contemplate appeals to the District Court and the High Court where questions of title are involved. These provisions illustrate the point that where serious disputes about title are entrusted to special tribunals usually the Legislature contemplates a formal enquiry and makes the provisions of the Code of Civil Procedure applicable to such an enquiry and provides for appropriate appeals. Now, in regard to the order passed by the Collector under S.7 (1) the only provision about appeals is that by S. 11 which provides that an appeal shall be to the prescribed superior revenue authority whose decision shall be final, and shall not be subject to any further appeal or revision. Departure made by the Legislature in providing only one appeal and that too in every case to the prescribed superior revenue authority clearly brings out that the disputes which are entrusted to the Collector under S. 7 (1) are the simple disputes specified in the five categories and do not include a serious dispute the that of the relationship between the parties as landlord and tenant. If such a dispute had been intended to be tried by the Collector the Legislature would have provided for a formal enquiry and would have prescribed appropriate appeals on the lines of Ss. 192 and 204 of the parent Act.14. In this connection we may in passing refer to the provisions of S. 126 of the parent Act. This section deals with the jurisdiction of civil courts in matters relating to rent. Section 126 (3) provides for the institution of suits in civil courts on the grounds specified by Cls. (a) to (g). Clause (c) deals with the ground that the relationship of landlord and tenant does not exist. This clause shows that if a dispute arose between the parties as to the existence of the relationship of landlord and tenant a suit in a civil court as contemplated is prescribed by S. 126 (3) (c). That also has some bearing on the construction of S. 7(1) and it is for that limited purpose that we have referred to it. Therefore, we are satisfied that the High Court was in error in holding that under S. 7(1) of the Act it was competent to the Collector to try the issue between the appellant and the respondents whether or not the respondents were the tenants of the appellant and that the civil court had not jurisdiction to entertain the said dispute.
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the parties had been covered by S. 7(1) it is difficult to imagine that the Legislature would have left the decision of such an important issue to the Collector giving him full freedom to make such enquiries as he may deem necessary. As is well known, a dispute as to the existence of the relationship of landlord and tenant raises serious questions of fact for decision, and if such a serious dispute was intended to be tried by the Collector the Legislature would have provided for an appropriate enquiry in that behalf and would have made the provisions of the Code of Civil Procedure applicable to such an enquiry. Section 7(2) can be easily explained on the basis that the relationship between the parties is outside S. 7(1) and so the disputes that are covered by S. 7(1) are not of such a nature as would justify a formal enquiry in that behalf. The provisions of sub-ss. (3), (6) and (7) also indicate that the relationship between the parties is not, and cannot be, disputed before the Collector. The parties arrayed before him are landlord and tenant or vice versa, and it is on the basis of such relationship between them that he proceeds to deal with the disputes entrusted to him by S. 7(1).12. It is true that when the relationship of landlord and tenant is proved or admitted the disputes falling within the five categories enumerated in S. 7(1) will have to be tried by the Collector. Let us take the present case itself to illustrate how S. 7(1) will operate. In the suit filed by the appellant against the respondents the issue about the status of the respondents was framed and so it had to be tried by the civil court. In such a suit if the civil court holds that the relationship between the landlord and the tenant had not been established it may proceed to deal with the suit on the merits. If, however, it holds that the said relationship is established then the civil court cannot deal with the dispute between the parties if it falls within any one of the categories specified by S. 7(1). In such a case, having made the finding about the relationship between the parties the civil court will either dismiss the suit on the ground that it can give no relief to the landlord, or may, if it is permissible to do so, return the plaint for presentation to the Collector. What course should be adopted in such a case it is unnecessary for us to decide in the present appeal. All that we wish to emphasise is that the initial dispute between the parties about the relationship subsisting between them will still continue to be tried by the civil court and is outside the purview of S.must be pointed out that we are really not concerned with S. 8(1) in the present appeal because even according to the respondents the present dispute between the parties attracted S.7(1) and should have been tried by the Collector and not by the civil court. However, the question about the construction of S. 8 (1) has been incidentally raised beforereading the provisions of S. 8 (1) and S. 13 together it follows that all that S. 8(1) provides is that except for the disputes covered by S. 7(1) all disputes arising between landlord and tenant shall be cognisable by the revenue court and to the trial of such disputes by the revenue court the relevant provisions of the Orissa Tenancy Act, 1913 would apply. It is true that disputes to which S. 8(1) applies are entrusted to the exclusive jurisdiction of the revenue courts and are excluded from the jurisdiction of civil courts, but the effect of this provision will have to be considered in the light of the other relevant provisions if the parent Act of which this temporary Act forms a part. Now, if we turn to some of the relevant provisions of the parent Act it would be clear that when the revenue courts are given jurisdiction to try the disputes the enquiry held by them purports to be a formal enquiry to which the provisions of the Code of civil Procedure mayDeparture made by the Legislature in providing only one appeal and that too in every case to the prescribed superior revenue authority clearly brings out that the disputes which are entrusted to the Collector under S. 7 (1) are the simple disputes specified in the five categories and do not include a serious dispute the that of the relationship between the parties as landlord and tenant. If such a dispute had been intended to be tried by the Collector the Legislature would have provided for a formal enquiry and would have prescribed appropriate appeals on the lines of Ss. 192 and 204 of the parent Act.14. In this connection we may in passing refer to the provisions of S. 126 of the parent Act. This section deals with the jurisdiction of civil courts in matters relating to rent. Section 126 (3) provides for the institution of suits in civil courts on the grounds specified by Cls. (a) to (g). Clause (c) deals with the ground that the relationship of landlord and tenant does not exist. This clause shows that if a dispute arose between the parties as to the existence of the relationship of landlord and tenant a suit in a civil court as contemplated is prescribed by S. 126 (3) (c). That also has some bearing on the construction of S. 7(1) and it is for that limited purpose that we have referred to it. Therefore, we are satisfied that the High Court was in error in holding that under S. 7(1) of the Act it was competent to the Collector to try the issue between the appellant and the respondents whether or not the respondents were the tenants of the appellant and that the civil court had not jurisdiction to entertain the said dispute.
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Subhlaxmi Fabrics Pvt. Ltd Vs. Chand Mal Maradia | empowered to rule about its own jurisdiction. It is, therefore, open to the plaintiff to raise all the pleas before defendant No.2 including a plea that there is no arbitration agreement between the parties for referring any dispute for arbitration before the Hindustan Chamber of Commerce, Mumbai. It is also important to note that in response to the notice issued by defendant No.2 the plaintiff had sent a communication raising certain pleas and had also remitted an amount of Rs. 200/- as fee for arbitration. In such circumstances we are of the opinion that the view taken by the City Civil Court was just and proper and the High Court erred in granting an injunction in favour of the plaintiff and staying the proceedings before defendant No.2. 15. The other point, which needs consideration, is that the appellant had raised a specific plea by moving an application under Section 20 read with Section 151 CPC before the trial court that the court at Calcutta had no territorial jurisdiction to try, the suit. According to the appellant the indent (contract) contained a clause that the dispute under the contract shall be decided by the court any Bombay and by no other court. That apart it was defendant No.1, which had commenced arbitration proceedings before defendant No.2 and both are situate in Bombay. 16. The plaintiff wants that the Hindustan Chamber of Commerce (defendant No.2) may be restrained from proceeding with arbitration of the dispute, which has been raised by the appellant Shree Subhlaxmi Fabrics Pvt. Ltd. (defendant No.1). Both defendant No.1 and defendant No.2 have their offices at Bombay. Insofar as commencement of proceedings before defendant No. 2 by defendant No. 1 is concerned, no part of cause of action has accrued in Calcutta. 17. In Hakam Singh vs. Gammon (India) Ltd. 1971(1) SCC 286, it has been held that it is not open to the parties to confer by their agreement jurisdiction on a court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or a proceeding, an agreement between the parties that the disputes between them shall be tried in one of such courts is not contrary to public policy and that such an agreement does not contravene Section 28 of the Contract Act. In A.B.C. Laminart (P) Ltd. vs. A.P. Agencies 1989 (2) SCC 163, it was held as under:- When the court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or clause properly. Often the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso facto take away jurisdiction of other courts. Where an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of ouster clause when words like alone, exclusive and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim expressio unius est exclusion alterius - expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed. 18. This view has been reiterated in Angile Insulation vs. Davy Ashmore India Ltd. (1995(4) SCC 153). 19. In the case on hand the clause in the incident is very clear, viz. court of Bombay and no other court. The trial court on consideration of material on record held that the court at Calcutta had no jurisdiction to try the suit. 20. The High Court in the earlier part of the judgment noted that the invoice contained clause like under jurisdiction of the court from where the goods have been dispatched and in the indent (contract) a clause like dispute under this contract shall be decided by the courts of Bombay and by no other courts. Further, while recording its findings on the plea raised by the appellant regarding jurisdiction it held as under:- In the facts and circumstances of this case, the plaintiff has no doubt an arguable case that he did not consciously agree to the exclusion of the jurisdiction of the courts of its business. Its case that from where the goods has been dispatched, is not sufficiently specific as to exclude a courts jurisdiction, is no doubt an arguable case. 21. In our opinion that approach of the High Court is not correct. The plea of the jurisdiction goes to the very root of the matter. The trial court having held that it had no territorial jurisdiction to try the suit, the High Court should have gone deeper into the matter and until a clear finding was recorded that the court had territorial jurisdiction to try the suit, no injunction could have been granted in favour of the plaintiff by making rather a general remark that the plaintiff has an arguable case that he did not consciously agree to the exclusion of the jurisdiction of the court. 22. On overall consideration of the matter, we are clearly of the opinion that on the facts and circumstances of the case the view taken by the trial court was perfectly correct and the High Court has erred in reversing its order and granting an injunction in favour of the plaintiff. | 1[ds]are of the opinion that the view taken by the City Civil Court was just and proper and the High Court erred in granting an injunction in favour of the plaintiff and staying the proceedings before defendant No.221. In our opinion that approach of the High Court is not correct. The plea of the jurisdiction goes to the very root of the matter. The trial court having held that it had no territorial jurisdiction to try the suit, the High Court should have gone deeper into the matter and until a clear finding was recorded that the court had territorial jurisdiction to try the suit, no injunction could have been granted in favour of the plaintiff by making rather a general remark that the plaintiff has an arguable case that he did not consciously agree to the exclusion of the jurisdiction of the court22. On overall consideration of the matter, we are clearly of the opinion that on the facts and circumstances of the case the view taken by the trial court was perfectly correct and the High Court has erred in reversing its order and granting an injunction in favour of the plaintiff. | 1 | 4,787 | 206 | ### Instruction:
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empowered to rule about its own jurisdiction. It is, therefore, open to the plaintiff to raise all the pleas before defendant No.2 including a plea that there is no arbitration agreement between the parties for referring any dispute for arbitration before the Hindustan Chamber of Commerce, Mumbai. It is also important to note that in response to the notice issued by defendant No.2 the plaintiff had sent a communication raising certain pleas and had also remitted an amount of Rs. 200/- as fee for arbitration. In such circumstances we are of the opinion that the view taken by the City Civil Court was just and proper and the High Court erred in granting an injunction in favour of the plaintiff and staying the proceedings before defendant No.2. 15. The other point, which needs consideration, is that the appellant had raised a specific plea by moving an application under Section 20 read with Section 151 CPC before the trial court that the court at Calcutta had no territorial jurisdiction to try, the suit. According to the appellant the indent (contract) contained a clause that the dispute under the contract shall be decided by the court any Bombay and by no other court. That apart it was defendant No.1, which had commenced arbitration proceedings before defendant No.2 and both are situate in Bombay. 16. The plaintiff wants that the Hindustan Chamber of Commerce (defendant No.2) may be restrained from proceeding with arbitration of the dispute, which has been raised by the appellant Shree Subhlaxmi Fabrics Pvt. Ltd. (defendant No.1). Both defendant No.1 and defendant No.2 have their offices at Bombay. Insofar as commencement of proceedings before defendant No. 2 by defendant No. 1 is concerned, no part of cause of action has accrued in Calcutta. 17. In Hakam Singh vs. Gammon (India) Ltd. 1971(1) SCC 286, it has been held that it is not open to the parties to confer by their agreement jurisdiction on a court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or a proceeding, an agreement between the parties that the disputes between them shall be tried in one of such courts is not contrary to public policy and that such an agreement does not contravene Section 28 of the Contract Act. In A.B.C. Laminart (P) Ltd. vs. A.P. Agencies 1989 (2) SCC 163, it was held as under:- When the court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or clause properly. Often the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso facto take away jurisdiction of other courts. Where an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of ouster clause when words like alone, exclusive and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim expressio unius est exclusion alterius - expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed. 18. This view has been reiterated in Angile Insulation vs. Davy Ashmore India Ltd. (1995(4) SCC 153). 19. In the case on hand the clause in the incident is very clear, viz. court of Bombay and no other court. The trial court on consideration of material on record held that the court at Calcutta had no jurisdiction to try the suit. 20. The High Court in the earlier part of the judgment noted that the invoice contained clause like under jurisdiction of the court from where the goods have been dispatched and in the indent (contract) a clause like dispute under this contract shall be decided by the courts of Bombay and by no other courts. Further, while recording its findings on the plea raised by the appellant regarding jurisdiction it held as under:- In the facts and circumstances of this case, the plaintiff has no doubt an arguable case that he did not consciously agree to the exclusion of the jurisdiction of the courts of its business. Its case that from where the goods has been dispatched, is not sufficiently specific as to exclude a courts jurisdiction, is no doubt an arguable case. 21. In our opinion that approach of the High Court is not correct. The plea of the jurisdiction goes to the very root of the matter. The trial court having held that it had no territorial jurisdiction to try the suit, the High Court should have gone deeper into the matter and until a clear finding was recorded that the court had territorial jurisdiction to try the suit, no injunction could have been granted in favour of the plaintiff by making rather a general remark that the plaintiff has an arguable case that he did not consciously agree to the exclusion of the jurisdiction of the court. 22. On overall consideration of the matter, we are clearly of the opinion that on the facts and circumstances of the case the view taken by the trial court was perfectly correct and the High Court has erred in reversing its order and granting an injunction in favour of the plaintiff.
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are of the opinion that the view taken by the City Civil Court was just and proper and the High Court erred in granting an injunction in favour of the plaintiff and staying the proceedings before defendant No.221. In our opinion that approach of the High Court is not correct. The plea of the jurisdiction goes to the very root of the matter. The trial court having held that it had no territorial jurisdiction to try the suit, the High Court should have gone deeper into the matter and until a clear finding was recorded that the court had territorial jurisdiction to try the suit, no injunction could have been granted in favour of the plaintiff by making rather a general remark that the plaintiff has an arguable case that he did not consciously agree to the exclusion of the jurisdiction of the court22. On overall consideration of the matter, we are clearly of the opinion that on the facts and circumstances of the case the view taken by the trial court was perfectly correct and the High Court has erred in reversing its order and granting an injunction in favour of the plaintiff.
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Bishwanath Prasad And Others Vs. Dwarka Prasad (Dead) And Others | defendant of this shop-building it did not go the whole hog in upholding his right. The learned Judges of the High Court held that the same admissions which had been relied upon by the trial court for holding in favour of the first defendants title to the mortgaged lands covered by Exs. B-1 to B-4 operated against the plaintiffs regarding the shop-building also. There is no doubt that if the admissions - Ex. G (the deposition of the present first plaintiff in Title Suit No. 61 of 1945), Ex. G2 (the deposition in the same suit by the present eighth defendant), and Ex. H (the written statement filed by these parties in the earlier suit) - are reliable, the plaintiffs case is damaged by their own admissions. The High Court has taken this view and concluded:"On the strength of the written statement and the other statements aforesaid, there is no escape from the conclusion that this disputed shop-room was allotted to defendant No. 1 in the partition that took place in 1938."6. Counsel for the appellants strenuously urged that the fatal admissions used against him have prejudiced him for many reasons. He contended that, for one thing, these statements were vague and therefore insufficient to justify a clear verdict against his client. For another, he argued, the case of the first respondent was that the suit for partition was not maintainable because the properties claimed belonged to him as heir of his father, Narain Sah, and the alternative case which has found favour with the courts below, based on the admissions of the plaintiffs and the eighth defendant, was not even suggested in the written statement, and as such a new case at total variance from the pleadings should not have been considered by the court. His further grievance is that these admissions were not put to his client, the first plaintiff, when he was in the witness box; nor was the eighth defendant summoned for examination by the first defendant to give him an opportunity to explain the admissions. Therefore, counsel contended that he was seriously harmed by the surprise reliance on statements attributed to his clients without extending a fair opportunity to them to offer their explanation and neutralise the effect of the admissions.7. We are not satisfied that there is any substance in the grievances voiced by counsel. There was no volte face on the part of the first defendant. Although it is true that his basic defence was a denial of joint family ownership, it is seen that even in the trial court Exs. G, G2 and H had been considered and acted upon. In the appeal to the High Court the present appellants did not state that they had been hit below the belt by the reliance on the admissions by the trial court in holding against them. Indeed, there is no suggestion in the judgment of the High Court that the appellants had even contended about any prejudice to them or that they had been denied an opportunity to explain the material so used against them. What is more, it is found that at no stage subsequent to the High Court decision, either in the memorandum of appeal appended to the application for a certificate or in the statement of the case in this Court, has there been a pointed ground of complaint about the unfair reliance on the admissions aforesaid to the detriment of the appellants. Under these circumstances it is difficult to take the plea of prejudice seriously in the absence of earlier articulation thereof.8. There is no merit even in the contention that because these three statements - Exs. G, G2 and H - had not been put to the first plaintiff when he was in the witness box or to the eighth defendant although he had discreetly kept away from giving evidence, they cannot be used against him. Counsel drew our attention to S. 145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of S. 21 of the Evidence Act: in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by S. 145 of the Evidence Act. This distinction has been clearly brought out in the ruling in Bharat Singhs case, (1966) 1 SCR 606 ; 615-16 = (AIR 1966 SC 405 ). This Court disposed of a similar argument with the following observations:"Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence." | 0[ds]7. We are not satisfied that there is any substance in the grievances voiced by counsel. There was no volte face on the part of the first defendant. Although it is true that his basic defence was a denial of joint family ownership, it is seen that even in the trial court Exs. G, G2 and H had been considered and acted upon. In the appeal to the High Court the present appellants did not state that they had been hit below the belt by the reliance on the admissions by the trial court in holding against them. Indeed, there is no suggestion in the judgment of the High Court that the appellants had even contended about any prejudice to them or that they had been denied an opportunity to explain the material so used against them. What is more, it is found that at no stage subsequent to the High Court decision, either in the memorandum of appeal appended to the application for a certificate or in the statement of the case in this Court, has there been a pointed ground of complaint about the unfair reliance on the admissions aforesaid to the detriment of the appellants. Under these circumstances it is difficult to take the plea of prejudice seriously in the absence of earlier articulation thereof.8. There is no merit even in the contention that because these three statements - Exs. G, G2 and H - had not been put to the first plaintiff when he was in the witness box or to the eighth defendant although he had discreetly kept away from giving evidence, they cannot be used against him. Counsel drew our attention to S. 145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of S. 21 of the Evidence Act: in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by S. 145 of the Evidence Act. | 0 | 1,592 | 461 | ### 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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defendant of this shop-building it did not go the whole hog in upholding his right. The learned Judges of the High Court held that the same admissions which had been relied upon by the trial court for holding in favour of the first defendants title to the mortgaged lands covered by Exs. B-1 to B-4 operated against the plaintiffs regarding the shop-building also. There is no doubt that if the admissions - Ex. G (the deposition of the present first plaintiff in Title Suit No. 61 of 1945), Ex. G2 (the deposition in the same suit by the present eighth defendant), and Ex. H (the written statement filed by these parties in the earlier suit) - are reliable, the plaintiffs case is damaged by their own admissions. The High Court has taken this view and concluded:"On the strength of the written statement and the other statements aforesaid, there is no escape from the conclusion that this disputed shop-room was allotted to defendant No. 1 in the partition that took place in 1938."6. Counsel for the appellants strenuously urged that the fatal admissions used against him have prejudiced him for many reasons. He contended that, for one thing, these statements were vague and therefore insufficient to justify a clear verdict against his client. For another, he argued, the case of the first respondent was that the suit for partition was not maintainable because the properties claimed belonged to him as heir of his father, Narain Sah, and the alternative case which has found favour with the courts below, based on the admissions of the plaintiffs and the eighth defendant, was not even suggested in the written statement, and as such a new case at total variance from the pleadings should not have been considered by the court. His further grievance is that these admissions were not put to his client, the first plaintiff, when he was in the witness box; nor was the eighth defendant summoned for examination by the first defendant to give him an opportunity to explain the admissions. Therefore, counsel contended that he was seriously harmed by the surprise reliance on statements attributed to his clients without extending a fair opportunity to them to offer their explanation and neutralise the effect of the admissions.7. We are not satisfied that there is any substance in the grievances voiced by counsel. There was no volte face on the part of the first defendant. Although it is true that his basic defence was a denial of joint family ownership, it is seen that even in the trial court Exs. G, G2 and H had been considered and acted upon. In the appeal to the High Court the present appellants did not state that they had been hit below the belt by the reliance on the admissions by the trial court in holding against them. Indeed, there is no suggestion in the judgment of the High Court that the appellants had even contended about any prejudice to them or that they had been denied an opportunity to explain the material so used against them. What is more, it is found that at no stage subsequent to the High Court decision, either in the memorandum of appeal appended to the application for a certificate or in the statement of the case in this Court, has there been a pointed ground of complaint about the unfair reliance on the admissions aforesaid to the detriment of the appellants. Under these circumstances it is difficult to take the plea of prejudice seriously in the absence of earlier articulation thereof.8. There is no merit even in the contention that because these three statements - Exs. G, G2 and H - had not been put to the first plaintiff when he was in the witness box or to the eighth defendant although he had discreetly kept away from giving evidence, they cannot be used against him. Counsel drew our attention to S. 145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of S. 21 of the Evidence Act: in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by S. 145 of the Evidence Act. This distinction has been clearly brought out in the ruling in Bharat Singhs case, (1966) 1 SCR 606 ; 615-16 = (AIR 1966 SC 405 ). This Court disposed of a similar argument with the following observations:"Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence."
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0
### Explanation:
7. We are not satisfied that there is any substance in the grievances voiced by counsel. There was no volte face on the part of the first defendant. Although it is true that his basic defence was a denial of joint family ownership, it is seen that even in the trial court Exs. G, G2 and H had been considered and acted upon. In the appeal to the High Court the present appellants did not state that they had been hit below the belt by the reliance on the admissions by the trial court in holding against them. Indeed, there is no suggestion in the judgment of the High Court that the appellants had even contended about any prejudice to them or that they had been denied an opportunity to explain the material so used against them. What is more, it is found that at no stage subsequent to the High Court decision, either in the memorandum of appeal appended to the application for a certificate or in the statement of the case in this Court, has there been a pointed ground of complaint about the unfair reliance on the admissions aforesaid to the detriment of the appellants. Under these circumstances it is difficult to take the plea of prejudice seriously in the absence of earlier articulation thereof.8. There is no merit even in the contention that because these three statements - Exs. G, G2 and H - had not been put to the first plaintiff when he was in the witness box or to the eighth defendant although he had discreetly kept away from giving evidence, they cannot be used against him. Counsel drew our attention to S. 145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of S. 21 of the Evidence Act: in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by S. 145 of the Evidence Act.
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M/S Atlas Cycle (Haryana) Ltd Vs. Kitab Singh | law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.” In the light of the above principles, while reiterating the same, we have to consider whether the High Court has exceeded its power as claimed by the learned counsel for the appellant? 9) It is relevant to note that in order to find out the correctness of the order passed by the learned single Judge, the Division Bench summoned all the records of the Labour Court and perused the same. In the written claim before the Labour Court, the workman has specifically alleged that on 01.10.1992, he sent a notice-cum-application to the Management and a news item to this effect was duly published in a vernacular local daily. This factual aspect and version, particularly the receipt of notice-cum-application dated 01.10.1992 from the workman, has not been denied in the written statement filed by the Management. The main emphasis in the written statement of the Management was that the workman had voluntarily tendered his resignation on 01.10.1992. It is brought to our notice that the Labour-cum-Conciliation Officer has not disputed the important fact that the workman protested in writing on the very next day of the incident. Whether the complaint sent by the workman on 07.10.1992 and the resignation tendered by him on 01.10.1992 was voluntary or not have not been adverted to by the Labour Court. According to us, these are the real issues in this case. As rightly observed by the Division Bench, we also noticed contradictory findings by the Labour Court with regard to the claim of the workman that he was tortured by the Management on 30.09.1992 and was made to write the resignation letter on 01.10.1992. Again, it was rightly observed by the Division Bench that certain relevant facts such as workman had been in service since 1977 and in such circumstance whether there is any need to resign without any acceptable reason that too without any monetary incentive and complaint on the same day to the Management and higher authorities including the Chief Minister, were not at all considered by the Labour Court and merely accepted that the workman tendered the resignation in his own writing.10) Even the claim of theft in the year 1988 by the workman has not been specifically raised in the written statement before the Labour Court and raised for the first time only before the writ Court.11) We are satisfied that the learned single Judge thoroughly analysed all the aspects and arrived at a correct conclusion. It is settled law that when the Labour Court arrived at a finding overlooking the materials on record, it would amount to perversity and the writ Court would be fully justified in interfering with the said conclusion. We are conscious of the fact that the High Court exercising writ of certiorari would not permit to assume the role of the appellate Court, however, the Court is well within its power to interfere if it is shown that in recording the said finding, the Tribunal/Labour Court had erroneously refused to admit the admissible and material evidence, or had erroneously admitted any inadmissible evidence which has influenced the impugned finding, the writ Court would be justified in exercising its remedy. In other words, if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari. | 0[ds]9) It is relevant to note that in order to find out the correctness of the order passed by the learned single Judge, the Division Bench summoned all the records of the Labour Court and perused the same. In the written claim before the Labour Court, the workman has specifically alleged that on 01.10.1992, he sent a notice-cum-application to the Management and a news item to this effect was duly published in a vernacular local daily. This factual aspect and version, particularly the receipt of notice-cum-application dated 01.10.1992 from the workman, has not been denied in the written statement filed by the Management. The main emphasis in the written statement of the Management was that the workman had voluntarily tendered his resignation on 01.10.1992. It is brought to our notice that the Labour-cum-Conciliation Officer has not disputed the important fact that the workman protested in writing on the very next day of therightly observed by the Division Bench, we also noticed contradictory findings by the Labour Court with regard to the claim of the workman that he was tortured by the Management on 30.09.1992 and was made to write the resignation letter on 01.10.1992. Again, it was rightly observed by the Division Bench that certain relevant facts such as workman had been in service since 1977 and in such circumstance whether there is any need to resign without any acceptable reason that too without any monetary incentive and complaint on the same day to the Management and higher authorities including the Chief Minister, were not at all considered by the Labour Court and merely accepted that the workman tendered the resignation in his own writing.10) Even the claim of theft in the year 1988 by the workman has not been specifically raised in the written statement before the Labour Court and raised for the first time only before the writ Court.11) We are satisfied that the learned single Judge thoroughly analysed all the aspects and arrived at a correct conclusion. It is settled law that when the Labour Court arrived at a finding overlooking the materials on record, it would amount to perversity and the writ Court would be fully justified in interfering with the said conclusion. We are conscious of the fact that the High Court exercising writ of certiorari would not permit to assume the role of the appellate Court, however, the Court is well within its power to interfere if it is shown that in recording the said finding, the Tribunal/Labour Court had erroneously refused to admit the admissible and material evidence, or had erroneously admitted any inadmissible evidence which has influenced the impugned finding, the writ Court would be justified in exercising its remedy. In other words, if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari. | 0 | 2,683 | 510 | ### 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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law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.” In the light of the above principles, while reiterating the same, we have to consider whether the High Court has exceeded its power as claimed by the learned counsel for the appellant? 9) It is relevant to note that in order to find out the correctness of the order passed by the learned single Judge, the Division Bench summoned all the records of the Labour Court and perused the same. In the written claim before the Labour Court, the workman has specifically alleged that on 01.10.1992, he sent a notice-cum-application to the Management and a news item to this effect was duly published in a vernacular local daily. This factual aspect and version, particularly the receipt of notice-cum-application dated 01.10.1992 from the workman, has not been denied in the written statement filed by the Management. The main emphasis in the written statement of the Management was that the workman had voluntarily tendered his resignation on 01.10.1992. It is brought to our notice that the Labour-cum-Conciliation Officer has not disputed the important fact that the workman protested in writing on the very next day of the incident. Whether the complaint sent by the workman on 07.10.1992 and the resignation tendered by him on 01.10.1992 was voluntary or not have not been adverted to by the Labour Court. According to us, these are the real issues in this case. As rightly observed by the Division Bench, we also noticed contradictory findings by the Labour Court with regard to the claim of the workman that he was tortured by the Management on 30.09.1992 and was made to write the resignation letter on 01.10.1992. Again, it was rightly observed by the Division Bench that certain relevant facts such as workman had been in service since 1977 and in such circumstance whether there is any need to resign without any acceptable reason that too without any monetary incentive and complaint on the same day to the Management and higher authorities including the Chief Minister, were not at all considered by the Labour Court and merely accepted that the workman tendered the resignation in his own writing.10) Even the claim of theft in the year 1988 by the workman has not been specifically raised in the written statement before the Labour Court and raised for the first time only before the writ Court.11) We are satisfied that the learned single Judge thoroughly analysed all the aspects and arrived at a correct conclusion. It is settled law that when the Labour Court arrived at a finding overlooking the materials on record, it would amount to perversity and the writ Court would be fully justified in interfering with the said conclusion. We are conscious of the fact that the High Court exercising writ of certiorari would not permit to assume the role of the appellate Court, however, the Court is well within its power to interfere if it is shown that in recording the said finding, the Tribunal/Labour Court had erroneously refused to admit the admissible and material evidence, or had erroneously admitted any inadmissible evidence which has influenced the impugned finding, the writ Court would be justified in exercising its remedy. In other words, if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari.
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0
### Explanation:
9) It is relevant to note that in order to find out the correctness of the order passed by the learned single Judge, the Division Bench summoned all the records of the Labour Court and perused the same. In the written claim before the Labour Court, the workman has specifically alleged that on 01.10.1992, he sent a notice-cum-application to the Management and a news item to this effect was duly published in a vernacular local daily. This factual aspect and version, particularly the receipt of notice-cum-application dated 01.10.1992 from the workman, has not been denied in the written statement filed by the Management. The main emphasis in the written statement of the Management was that the workman had voluntarily tendered his resignation on 01.10.1992. It is brought to our notice that the Labour-cum-Conciliation Officer has not disputed the important fact that the workman protested in writing on the very next day of therightly observed by the Division Bench, we also noticed contradictory findings by the Labour Court with regard to the claim of the workman that he was tortured by the Management on 30.09.1992 and was made to write the resignation letter on 01.10.1992. Again, it was rightly observed by the Division Bench that certain relevant facts such as workman had been in service since 1977 and in such circumstance whether there is any need to resign without any acceptable reason that too without any monetary incentive and complaint on the same day to the Management and higher authorities including the Chief Minister, were not at all considered by the Labour Court and merely accepted that the workman tendered the resignation in his own writing.10) Even the claim of theft in the year 1988 by the workman has not been specifically raised in the written statement before the Labour Court and raised for the first time only before the writ Court.11) We are satisfied that the learned single Judge thoroughly analysed all the aspects and arrived at a correct conclusion. It is settled law that when the Labour Court arrived at a finding overlooking the materials on record, it would amount to perversity and the writ Court would be fully justified in interfering with the said conclusion. We are conscious of the fact that the High Court exercising writ of certiorari would not permit to assume the role of the appellate Court, however, the Court is well within its power to interfere if it is shown that in recording the said finding, the Tribunal/Labour Court had erroneously refused to admit the admissible and material evidence, or had erroneously admitted any inadmissible evidence which has influenced the impugned finding, the writ Court would be justified in exercising its remedy. In other words, if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari.
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Management of Travancore Titanium Products Limited Vs. Their Workmen | two sheets with a view to misappropriate the additional quantity of glue. The third sheet which was in most cases inconsistent with the first two, showed the proper quantity sent to the Plant in fact, and disparities in these sheets established Pillais guilt. On these pleadings, it was necessary for the management to prove that only the quantity originally indented for was supplied, and not the quantity as corrected. To prove this charge, the appellant examined the Production Manager and the Supervisors.8. The Production Manager produced a statement before the Tribunal in order to prove his case against Pillai. This statement purported to show the alleged consumption of glue at the Plant during the months of June, July, August and September, 1961 (Ext. M. 23). If this statement is believed, it would go a long way in proving the appellants case against Pillai. Similarly if the Supervisors oral evidence is accepted at its face value, that also would help the appellants case against Pillai. The Tribunal, however, did not accept the statement produced by the Production Manager and did not believe the Supervisiors oral evidence. That is why it came to then conclusion that "there is absolutely no evidence to connect the employee with the misconduct alleged against him, and I would even state that the evidence in this case points the other way in substantiation of the plea set up by him." The question which arises for our decision is : can the appellant successfully challenge the correctness of this finding in the present appeal ? In our opinion, the answer to this question must be in the negative.It is well settled that where dealing with an industrial dispute arising from the dismissal of an industrial employee, the employer fails to prove to the satisfaction of the Tribunal that the domestic enquiry was fair, it is open to him to lead evidence justifying the impugned dismissal; and in such a case, the Tribunal has to consider the evidence for itself and decide whether the dismissal was justified or not. Ordinarily, the decision of such a question depends upon appreciating evidence, both oral and documentary; and in dealing with appeals brought to this Court under Art. 136 of the Constitution against awards pronounced by Industrial Tribunals in such matters, this Court is reluctant to examine the evidence for itself. Normally the findings of fact recorded by the Tribunal as a result of its appreciation of evidence are not disturbed by this Court in exercise of its jurisdiction under Art. 136. We see no reason to depart from this usual practice in the present case. 9. The Tribunal has also criticised the appellant for failing to produce log-sheets, the statement prepared on the basis of the log-sheets, and the register regarding the consumption of the glue maintained at the Plant. These documents could have been easily produced, and yet, they were not produced before the Tribunal. Similarly, the Tribunal has commented on the fact that the requisitions for the months of June, July and August, 1961 could have been easily produced before the Tribunal to satisfy it about the position as regards the actual issue and consumption of glue during that period. It is for these reasons that the Tribunal was not prepared to believe the evidence of the Production Manager. 10. Then as to the Supervisors, the Tribunal has commented on the fact that if the appellants case against Pillai was right, then the quantity shown as supplied from the Stores in the third copies is the double of what was originally indented for; and that being so, it was idle for the Supervisors to state that they received only the quantity indented before correction. This comment is justified, because the Supervisors claimed that they invariably checked up the quantity supplied with the third copy. The Tribunal has also referred to some other relevant considerations while discussing the evidence of these Supervisors. Having disbelieved the evidence of the Production Manager and the Supervisors, the Tribunal came to the conclusion that the appellant had failed to prove that there was any difference between the issue and consumption of glue covered by the requisitions mentioned in the charge-sheet.It is true that the Tribunal was aware that there were certain corrections and over-writings in some of the requisitions in question and that the corrections remained unattested by anybody; but the Tribunal has taken into account the procedure which was followed by the Store-keeper in dealing with these requisitions and has observed that "none of the authorities in the various sections or departments through whose hands these corrections and over-writings have had occasion to pass, has taken it into his head to call for any explanation from the Store-keeper for the corrections or over-writings found therein or to insist that the corrections to be accepted must at least be initialled." In fact, the Tribunal felt constrained to record its conclusion that the whole action against Pillai lacked bona fides, and for this conclusion, the Tribunal has relied mainly upon the impression it formed about the attitude of the Production Manager in this case. That being the position, we do not see how Mr. Pai can successfully challenge the conclusion of the Tribunal that the charge framed against Pillai had not been proved. 11. In regard to the relief of the reinstatement granted by the Tribunal, the Tribunal has observed that Pillai has to his credit 12 years of unblemished service under the appellant, and it has referred to the fact that the Production Manager himself had stated that before 1961, he had no occasion to suspect him in regard to the execution of the work entrusted to him as Store-keeper. In fact, his past record shows that Pillai was one of the trusted employees of the appellant. Under these circumstances, we think the Tribunal was justified in directing the appellant to reinstate Pillai and to give him all his back wages in full from the date of dismissal to the date of his reinstatement. | 0[ds]We are not impressed by this argument. Since the standing order insists upon notice of three clear days being given to the workman, failure to comply with the standing order does introduce an infirmity in the proceedingsThe Tribunal has stated that Mr. Iyer wanted to assist Pillai, but that he was not allowed to do so. In this connection, the Tribunal has made a significant observation, that it did not think that it should make further comment on this point. Therefore, we do not see any reason to interfere with the conclusion of the Tribunal that the enquiry contravened the mandatory provision of the relevant Standing Order, and was thus entirely vitiated. That being so, the appellant cannot rely upon the findings recorded at the said enquiry and cannot justify the dismissal of Pillai on the strength of the said findings.That takes us to the merits of the appellants case that Pillai was guilty of misconduct. In dealing with this point, we ought to point out that before the Tribunal, charge No. I was not pressed, and no evidence was adduced in respect of charge No. 3; and that means that the Tribunal was called upon to consider whether the appellant had proved its case against Pillai in regard to charge No. 2In our opinion, the answer to this question must be in the negative.It is well settled that where dealing with an industrial dispute arising from the dismissal of an industrial employee, the employer fails to prove to the satisfaction of the Tribunal that the domestic enquiry was fair, it is open to him to lead evidence justifying the impugned dismissal; and in such a case, the Tribunal has to consider the evidence for itself and decide whether the dismissal was justified or not. Ordinarily, the decision of such a question depends upon appreciating evidence, both oral and documentary; and in dealing with appeals brought to this Court under Art. 136 of the Constitution against awards pronounced by Industrial Tribunals in such matters, this Court is reluctant to examine the evidence for itself. Normally the findings of fact recorded by the Tribunal as a result of its appreciation of evidence are not disturbed by this Court in exercise of its jurisdiction under Art. 136. We see no reason to depart from this usual practice in the present case10. Then as to the Supervisors, the Tribunal has commented on the fact that if the appellants case against Pillai was right, then the quantity shown as supplied from the Stores in the third copies is the double of what was originally indented for; and that being so, it was idle for the Supervisors to state that they received only the quantity indented before correction. This comment is justified, because the Supervisors claimed that they invariably checked up the quantity supplied with the third copy. The Tribunal has also referred to some other relevant considerations while discussing the evidence of these Supervisors. Having disbelieved the evidence of the Production Manager and the Supervisors, the Tribunal came to the conclusion that the appellant had failed to prove that there was any difference between the issue and consumption of glue covered by the requisitions mentioned in thet is true that the Tribunal was aware that there were certain corrections ands in some of the requisitions in question and that the corrections remained unattested by anybody; but the Tribunal has taken into account the procedure which was followed by ther in dealing with these requisitions and has observed that "none of the authorities in the various sections or departments through whose hands these corrections ands have had occasion to pass, has taken it into his head to call for any explanation from ther for the corrections or11. In regard to the relief of the reinstatement granted by the Tribunal, the Tribunal has observed that Pillai has to his credit 12 years of unblemished service under the appellant, and it has referred to the fact that the Production Manager himself had stated that before 1961, he had no occasion to suspect him in regard to the execution of the work entrusted to him as. In fact, his past record shows that Pillai was one of the trusted employees of the appellant. Under these circumstances, we think the Tribunal was justified in directing the appellant to reinstate Pillai and to give him all his back wages in full from the date of dismissal to the date of his reinstatement. | 0 | 2,893 | 803 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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two sheets with a view to misappropriate the additional quantity of glue. The third sheet which was in most cases inconsistent with the first two, showed the proper quantity sent to the Plant in fact, and disparities in these sheets established Pillais guilt. On these pleadings, it was necessary for the management to prove that only the quantity originally indented for was supplied, and not the quantity as corrected. To prove this charge, the appellant examined the Production Manager and the Supervisors.8. The Production Manager produced a statement before the Tribunal in order to prove his case against Pillai. This statement purported to show the alleged consumption of glue at the Plant during the months of June, July, August and September, 1961 (Ext. M. 23). If this statement is believed, it would go a long way in proving the appellants case against Pillai. Similarly if the Supervisors oral evidence is accepted at its face value, that also would help the appellants case against Pillai. The Tribunal, however, did not accept the statement produced by the Production Manager and did not believe the Supervisiors oral evidence. That is why it came to then conclusion that "there is absolutely no evidence to connect the employee with the misconduct alleged against him, and I would even state that the evidence in this case points the other way in substantiation of the plea set up by him." The question which arises for our decision is : can the appellant successfully challenge the correctness of this finding in the present appeal ? In our opinion, the answer to this question must be in the negative.It is well settled that where dealing with an industrial dispute arising from the dismissal of an industrial employee, the employer fails to prove to the satisfaction of the Tribunal that the domestic enquiry was fair, it is open to him to lead evidence justifying the impugned dismissal; and in such a case, the Tribunal has to consider the evidence for itself and decide whether the dismissal was justified or not. Ordinarily, the decision of such a question depends upon appreciating evidence, both oral and documentary; and in dealing with appeals brought to this Court under Art. 136 of the Constitution against awards pronounced by Industrial Tribunals in such matters, this Court is reluctant to examine the evidence for itself. Normally the findings of fact recorded by the Tribunal as a result of its appreciation of evidence are not disturbed by this Court in exercise of its jurisdiction under Art. 136. We see no reason to depart from this usual practice in the present case. 9. The Tribunal has also criticised the appellant for failing to produce log-sheets, the statement prepared on the basis of the log-sheets, and the register regarding the consumption of the glue maintained at the Plant. These documents could have been easily produced, and yet, they were not produced before the Tribunal. Similarly, the Tribunal has commented on the fact that the requisitions for the months of June, July and August, 1961 could have been easily produced before the Tribunal to satisfy it about the position as regards the actual issue and consumption of glue during that period. It is for these reasons that the Tribunal was not prepared to believe the evidence of the Production Manager. 10. Then as to the Supervisors, the Tribunal has commented on the fact that if the appellants case against Pillai was right, then the quantity shown as supplied from the Stores in the third copies is the double of what was originally indented for; and that being so, it was idle for the Supervisors to state that they received only the quantity indented before correction. This comment is justified, because the Supervisors claimed that they invariably checked up the quantity supplied with the third copy. The Tribunal has also referred to some other relevant considerations while discussing the evidence of these Supervisors. Having disbelieved the evidence of the Production Manager and the Supervisors, the Tribunal came to the conclusion that the appellant had failed to prove that there was any difference between the issue and consumption of glue covered by the requisitions mentioned in the charge-sheet.It is true that the Tribunal was aware that there were certain corrections and over-writings in some of the requisitions in question and that the corrections remained unattested by anybody; but the Tribunal has taken into account the procedure which was followed by the Store-keeper in dealing with these requisitions and has observed that "none of the authorities in the various sections or departments through whose hands these corrections and over-writings have had occasion to pass, has taken it into his head to call for any explanation from the Store-keeper for the corrections or over-writings found therein or to insist that the corrections to be accepted must at least be initialled." In fact, the Tribunal felt constrained to record its conclusion that the whole action against Pillai lacked bona fides, and for this conclusion, the Tribunal has relied mainly upon the impression it formed about the attitude of the Production Manager in this case. That being the position, we do not see how Mr. Pai can successfully challenge the conclusion of the Tribunal that the charge framed against Pillai had not been proved. 11. In regard to the relief of the reinstatement granted by the Tribunal, the Tribunal has observed that Pillai has to his credit 12 years of unblemished service under the appellant, and it has referred to the fact that the Production Manager himself had stated that before 1961, he had no occasion to suspect him in regard to the execution of the work entrusted to him as Store-keeper. In fact, his past record shows that Pillai was one of the trusted employees of the appellant. Under these circumstances, we think the Tribunal was justified in directing the appellant to reinstate Pillai and to give him all his back wages in full from the date of dismissal to the date of his reinstatement.
### Response:
0
### Explanation:
We are not impressed by this argument. Since the standing order insists upon notice of three clear days being given to the workman, failure to comply with the standing order does introduce an infirmity in the proceedingsThe Tribunal has stated that Mr. Iyer wanted to assist Pillai, but that he was not allowed to do so. In this connection, the Tribunal has made a significant observation, that it did not think that it should make further comment on this point. Therefore, we do not see any reason to interfere with the conclusion of the Tribunal that the enquiry contravened the mandatory provision of the relevant Standing Order, and was thus entirely vitiated. That being so, the appellant cannot rely upon the findings recorded at the said enquiry and cannot justify the dismissal of Pillai on the strength of the said findings.That takes us to the merits of the appellants case that Pillai was guilty of misconduct. In dealing with this point, we ought to point out that before the Tribunal, charge No. I was not pressed, and no evidence was adduced in respect of charge No. 3; and that means that the Tribunal was called upon to consider whether the appellant had proved its case against Pillai in regard to charge No. 2In our opinion, the answer to this question must be in the negative.It is well settled that where dealing with an industrial dispute arising from the dismissal of an industrial employee, the employer fails to prove to the satisfaction of the Tribunal that the domestic enquiry was fair, it is open to him to lead evidence justifying the impugned dismissal; and in such a case, the Tribunal has to consider the evidence for itself and decide whether the dismissal was justified or not. Ordinarily, the decision of such a question depends upon appreciating evidence, both oral and documentary; and in dealing with appeals brought to this Court under Art. 136 of the Constitution against awards pronounced by Industrial Tribunals in such matters, this Court is reluctant to examine the evidence for itself. Normally the findings of fact recorded by the Tribunal as a result of its appreciation of evidence are not disturbed by this Court in exercise of its jurisdiction under Art. 136. We see no reason to depart from this usual practice in the present case10. Then as to the Supervisors, the Tribunal has commented on the fact that if the appellants case against Pillai was right, then the quantity shown as supplied from the Stores in the third copies is the double of what was originally indented for; and that being so, it was idle for the Supervisors to state that they received only the quantity indented before correction. This comment is justified, because the Supervisors claimed that they invariably checked up the quantity supplied with the third copy. The Tribunal has also referred to some other relevant considerations while discussing the evidence of these Supervisors. Having disbelieved the evidence of the Production Manager and the Supervisors, the Tribunal came to the conclusion that the appellant had failed to prove that there was any difference between the issue and consumption of glue covered by the requisitions mentioned in thet is true that the Tribunal was aware that there were certain corrections ands in some of the requisitions in question and that the corrections remained unattested by anybody; but the Tribunal has taken into account the procedure which was followed by ther in dealing with these requisitions and has observed that "none of the authorities in the various sections or departments through whose hands these corrections ands have had occasion to pass, has taken it into his head to call for any explanation from ther for the corrections or11. In regard to the relief of the reinstatement granted by the Tribunal, the Tribunal has observed that Pillai has to his credit 12 years of unblemished service under the appellant, and it has referred to the fact that the Production Manager himself had stated that before 1961, he had no occasion to suspect him in regard to the execution of the work entrusted to him as. In fact, his past record shows that Pillai was one of the trusted employees of the appellant. Under these circumstances, we think the Tribunal was justified in directing the appellant to reinstate Pillai and to give him all his back wages in full from the date of dismissal to the date of his reinstatement.
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Deepali Gundu Surwase Vs. Kranti Junior Adhyapak | was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à¶is the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. 34. Reverting to the case in hand, we find that the management’s decision to terminate the appellant’s service was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15.6.2007. The Tribunal found that action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.35. The learned Single Judge agreed with the Tribunal that the action taken by the management to terminate the appellant’s service was per se illegal but set aside the award of back wages by making a cryptic observation that she had not proved the factum of non-employment during the intervening period. While doing so, the learned Single Judge not only overlooked the order passed by the Division Bench in Writ Petition No.8404/2006, but also Rule 33 which prohibits an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the appellant had left the Headquarter without prior approval of the Chief Executive Officer and thereby disentitling her from getting subsistence allowance or that during the intervening period she was gainfully employed elsewhere. 36. In view of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice. 37. | 1[ds]we find that thedecision to terminate theservice was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15.6.2007. The Tribunal found that action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.35. The learned Single Judge agreed with the Tribunal that the action taken by the management to terminate theservice was per se illegal but set aside the award of back wages by making a cryptic observation that she had not proved the factum of non-employment during the intervening period. While doing so, the learned Single Judge not only overlooked the order passed by the Division Bench in Writ Petition No.8404/2006, but also Rule 33 which prohibits an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the appellant had left the Headquarter without prior approval of the Chief Executive Officer and thereby disentitling her from getting subsistence allowance or that during the intervening period she was gainfully employedview of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice. | 1 | 14,424 | 358 | ### 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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was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à¶is the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. 34. Reverting to the case in hand, we find that the management’s decision to terminate the appellant’s service was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15.6.2007. The Tribunal found that action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.35. The learned Single Judge agreed with the Tribunal that the action taken by the management to terminate the appellant’s service was per se illegal but set aside the award of back wages by making a cryptic observation that she had not proved the factum of non-employment during the intervening period. While doing so, the learned Single Judge not only overlooked the order passed by the Division Bench in Writ Petition No.8404/2006, but also Rule 33 which prohibits an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the appellant had left the Headquarter without prior approval of the Chief Executive Officer and thereby disentitling her from getting subsistence allowance or that during the intervening period she was gainfully employed elsewhere. 36. In view of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice. 37.
### Response:
1
### Explanation:
we find that thedecision to terminate theservice was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15.6.2007. The Tribunal found that action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.35. The learned Single Judge agreed with the Tribunal that the action taken by the management to terminate theservice was per se illegal but set aside the award of back wages by making a cryptic observation that she had not proved the factum of non-employment during the intervening period. While doing so, the learned Single Judge not only overlooked the order passed by the Division Bench in Writ Petition No.8404/2006, but also Rule 33 which prohibits an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the appellant had left the Headquarter without prior approval of the Chief Executive Officer and thereby disentitling her from getting subsistence allowance or that during the intervening period she was gainfully employedview of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice.
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CHAIRMAN/MANAGING DIRECTOR, U.P. POWER CORPORATION LTD. Vs. RAM GOPAL | expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters…... 16. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept 8over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced. In SS Balu v. State of Kerala (2009) 2 SCC 479 , this Court observed thus: 17. It is also well-settled principle of law that delay defeats equity. …It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. (emphasis supplied) 17. Similarly, in Vijay Kumar Kaul v. Union of India (2012) 7 SCC 610 this Court while considering the claim of candidates who, despite being higher in merit, exercised their right to parity much after those who were though lower in merit but were diligently agitating their rights, this Court observed that: 27. …It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time. 18. We may hasten to add that these principles may not, however, apply to judgments which are delivered in-rem. The State and its instrumentalities are expected In such category of cases to themselves extend the benefit of a judicial pronouncement to all similarly placed employees without forcing each person to individually knock the doors of courts. This distinction between operation of delay and laches to judgments delivered in-rem and in personam, is lucidly captured in State of Uttar Pradesh v. Arvind Kumar Srivastava (2015) 1 SCC 347 , laying down that: 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. (Emphasis applied) 19. The order passed by the High Court for retention of Shyam Behari Lal in service, does not possess any ingredient of a Judgment in-rem. The above cited exception, therefore, does not come to the Respondents rescue. It is also pertinent to mention that neither has it been pleaded nor is it apparent from the material on record that the Respondent was unable to approach the court-of-law in time on account of any social or financial disability. Had such been the case, he ought to have availed free legal aid and should have ventilated his grievances in a timely manner. Instead, he seems to be under the assumption that the termination order is illegal, that he consequently has a right to be reinstated, and that he can agitate the same at his own sweet-will. Neither of these three assumptions are true, as elaborated by us earlier. CONCLUSION | 1[ds]10. Having heard learned counsel for the parties at a considerable length, we find that the impugned order of the High Court is legally untenable and cannot be sustained for at least three glaring reasonsi) Erroneous conclusion of termination order being non-speaking11. First, the Division Benchs finding that no reason has been assigned in the order of cancellation of appointment of the respondent, is vividly erroneous. This Court had earlier vide order dated 22.11.1993 passed in Civil Appeal No. 7123 of 1993 overruled the High Courts finding of non- reasoned termination in Shyam Behari Lals case and had held that the termination order was in fact a speaking order, with the reason for termination being writ large and clearly given. The High Courts findings thus undoubtedly fall foul of the observations made by this Court and the impugned order hence ought to be set-aside on this count aloneii) Lack of similarity between Shyam Behari Lal and Ram Gopal12. Second, Quite palpably, the High Court has erred in concluding that the Respondents claim fell squarely within the four corners of its previous decision in Shyam Behari Lals case. The relied-upon judgment dated 30.05.1997 determined unequivocally that there was no merit in the writ petition and that Shyam Behari Lals claim was liable to be dismissed. It was only on account of pending litigation and interim directions of courts that Shyam Behari Lal had spent 17 years in employment of UPPCL. Paying heed to these equitable considerations, and not as a matter of any legal right, the High Court urged the employer to sympathetically consider his case for retention in employment. This conclusion of the High Court was not appealed by any party and has undoubtedly attained finality. Hence, it is clear in law that Shyam Behari Lals termination was legal, and that he had no right of continuation in service, let alone reinstatement as sought in the present case.13. At the outset, it is apparent that Shyam Behari Lal and Ram Gopal share little similarity. Whereas the former had remained in service for over seventeen years (except a brief period between August to November in 1978) and had fought his case tooth and nail, the Respondent has not been in the employment of UPPCL since 1978. The fact-situation in Shyam Behari Lals case was unique and altogether different from that of Ram Gopal, and there arises no reason to seek or grant parity. Even otherwise, it is a settled canon of common law that equity acts in personam and not in rem. Hence, there could be no extension of parity between the case of Shyam Behari Lal and Ram Gopal (Respondent)iii) Inordinate delay in filing writ petition14. Finally, the prolonged delay of many years ought not to have been overlooked or condoned. Services of the Respondent were terminated within months of his appointment, in 1978. Statedly, the Respondent made a representation and served UPPCL with a legal notice in 1982, however such feeble effort does little to fill the gap between when the cause of action arose and he chose to seek its redressal (in 1990)15. Seen from a different perspective also, it is clear that the Respondent has shown little concern to the settled legal tenets. Even a civil suit challenging termination of services, if filed by the Respondent, would have undoubtedly been barred by limitation in 199018. We may hasten to add that these principles may not, however, apply to judgments which are delivered in-rem. The State and its instrumentalities are expected In such category of cases to themselves extend the benefit of a judicial pronouncement to all similarly placed employees without forcing each person to individually knock the doors of courts.19. The order passed by the High Court for retention of Shyam Behari Lal in service, does not possess any ingredient of a Judgment in-rem. The above cited exception, therefore, does not come to the Respondents rescue. It is also pertinent to mention that neither has it been pleaded nor is it apparent from the material on record that the Respondent was unable to approach the court-of-law in time on account of any social or financial disability. Had such been the case, he ought to have availed free legal aid and should have ventilated his grievances in a timely manner. Instead, he seems to be under the assumption that the termination order is illegal, that he consequently has a right to be reinstated, and that he can agitate the same at his own sweet-will. Neither of these three assumptions are true, as elaborated by us earlier16. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept 8over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced. | 1 | 2,859 | 971 | ### 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:
expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters…... 16. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept 8over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced. In SS Balu v. State of Kerala (2009) 2 SCC 479 , this Court observed thus: 17. It is also well-settled principle of law that delay defeats equity. …It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. (emphasis supplied) 17. Similarly, in Vijay Kumar Kaul v. Union of India (2012) 7 SCC 610 this Court while considering the claim of candidates who, despite being higher in merit, exercised their right to parity much after those who were though lower in merit but were diligently agitating their rights, this Court observed that: 27. …It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time. 18. We may hasten to add that these principles may not, however, apply to judgments which are delivered in-rem. The State and its instrumentalities are expected In such category of cases to themselves extend the benefit of a judicial pronouncement to all similarly placed employees without forcing each person to individually knock the doors of courts. This distinction between operation of delay and laches to judgments delivered in-rem and in personam, is lucidly captured in State of Uttar Pradesh v. Arvind Kumar Srivastava (2015) 1 SCC 347 , laying down that: 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. (Emphasis applied) 19. The order passed by the High Court for retention of Shyam Behari Lal in service, does not possess any ingredient of a Judgment in-rem. The above cited exception, therefore, does not come to the Respondents rescue. It is also pertinent to mention that neither has it been pleaded nor is it apparent from the material on record that the Respondent was unable to approach the court-of-law in time on account of any social or financial disability. Had such been the case, he ought to have availed free legal aid and should have ventilated his grievances in a timely manner. Instead, he seems to be under the assumption that the termination order is illegal, that he consequently has a right to be reinstated, and that he can agitate the same at his own sweet-will. Neither of these three assumptions are true, as elaborated by us earlier. CONCLUSION
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1
### Explanation:
10. Having heard learned counsel for the parties at a considerable length, we find that the impugned order of the High Court is legally untenable and cannot be sustained for at least three glaring reasonsi) Erroneous conclusion of termination order being non-speaking11. First, the Division Benchs finding that no reason has been assigned in the order of cancellation of appointment of the respondent, is vividly erroneous. This Court had earlier vide order dated 22.11.1993 passed in Civil Appeal No. 7123 of 1993 overruled the High Courts finding of non- reasoned termination in Shyam Behari Lals case and had held that the termination order was in fact a speaking order, with the reason for termination being writ large and clearly given. The High Courts findings thus undoubtedly fall foul of the observations made by this Court and the impugned order hence ought to be set-aside on this count aloneii) Lack of similarity between Shyam Behari Lal and Ram Gopal12. Second, Quite palpably, the High Court has erred in concluding that the Respondents claim fell squarely within the four corners of its previous decision in Shyam Behari Lals case. The relied-upon judgment dated 30.05.1997 determined unequivocally that there was no merit in the writ petition and that Shyam Behari Lals claim was liable to be dismissed. It was only on account of pending litigation and interim directions of courts that Shyam Behari Lal had spent 17 years in employment of UPPCL. Paying heed to these equitable considerations, and not as a matter of any legal right, the High Court urged the employer to sympathetically consider his case for retention in employment. This conclusion of the High Court was not appealed by any party and has undoubtedly attained finality. Hence, it is clear in law that Shyam Behari Lals termination was legal, and that he had no right of continuation in service, let alone reinstatement as sought in the present case.13. At the outset, it is apparent that Shyam Behari Lal and Ram Gopal share little similarity. Whereas the former had remained in service for over seventeen years (except a brief period between August to November in 1978) and had fought his case tooth and nail, the Respondent has not been in the employment of UPPCL since 1978. The fact-situation in Shyam Behari Lals case was unique and altogether different from that of Ram Gopal, and there arises no reason to seek or grant parity. Even otherwise, it is a settled canon of common law that equity acts in personam and not in rem. Hence, there could be no extension of parity between the case of Shyam Behari Lal and Ram Gopal (Respondent)iii) Inordinate delay in filing writ petition14. Finally, the prolonged delay of many years ought not to have been overlooked or condoned. Services of the Respondent were terminated within months of his appointment, in 1978. Statedly, the Respondent made a representation and served UPPCL with a legal notice in 1982, however such feeble effort does little to fill the gap between when the cause of action arose and he chose to seek its redressal (in 1990)15. Seen from a different perspective also, it is clear that the Respondent has shown little concern to the settled legal tenets. Even a civil suit challenging termination of services, if filed by the Respondent, would have undoubtedly been barred by limitation in 199018. We may hasten to add that these principles may not, however, apply to judgments which are delivered in-rem. The State and its instrumentalities are expected In such category of cases to themselves extend the benefit of a judicial pronouncement to all similarly placed employees without forcing each person to individually knock the doors of courts.19. The order passed by the High Court for retention of Shyam Behari Lal in service, does not possess any ingredient of a Judgment in-rem. The above cited exception, therefore, does not come to the Respondents rescue. It is also pertinent to mention that neither has it been pleaded nor is it apparent from the material on record that the Respondent was unable to approach the court-of-law in time on account of any social or financial disability. Had such been the case, he ought to have availed free legal aid and should have ventilated his grievances in a timely manner. Instead, he seems to be under the assumption that the termination order is illegal, that he consequently has a right to be reinstated, and that he can agitate the same at his own sweet-will. Neither of these three assumptions are true, as elaborated by us earlier16. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept 8over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced.
|
Karnataka State Industrial Investment And Development Corporation Ltd Vs. S.K.K Kulkarni | of whose jurisdiction the industrial concern carries on its business. Section 31 is one mode of recovery. Therefore, the power under Section 31 and Section 32 are in addition to the power of realization of money under the Transfer of Property Act or any other law. It is within the discretion of SFC to choose the forum under a particular Act. Once there is a default in the payment of loan, it is for the Corporation to decide as to whether it shall proceed under Section 29 for sale of the property mortgaged or whether it shall take any recourse under Section 31 of the 1951 Act. Section 31 of the Act had been enacted to enable the corporation to obtain quicker remedies from the highest Court of Original Civil Jurisdiction in the locality. Where the SFC takes recourse to the provisions of Section 31 of the Act and obtains an order from the Court, it shall ordinarily seek its enforcement in the manner provided for by Section 32 of the 1951 Act, which section is aimed to act in aid of the orders passed under Section 31 of the Act. Where the SFC takes recourse to Section 31 and obtains an order from the Court, it shall seek its enforcement in the manner provided for by Section 32 of the Act, therefore, Section 31 makes a provision for enforcement of claims. It is primarily procedural in nature. The remedy provided for under Section 31 is not in derogation of any other mode of recovery which is available to the SFC under any other law for the enforcement of its claims. The remedy under Section 31 is not the sole or exclusive remedy available to the SFC. It is only an additional remedy which is conferred upon the SFC. The substantive relief in an application under Section 31(1) is not a plaint. This is clear from the form of the application, the nature of the relief, the compulsion to make interim order, the limited enquiry contemplated by Section 32(6), the nature of the relief that can be granted and the method of execution. The proceedings under Section 32 of the 1951 Act are, therefore, nothing but execution proceedings. A combined reading of Section 31 and Section 32 of the 1951 Act indicates that an investigation has to be made to find out the terms and conditions on which loan was given by SFC to the industrial concern and whether SFC was entitled to the relief under Section 31(1) on account of the breech of the terms of agreement. Having discussed the nature of the proceedings under Section 31(1) of the 1951 Act we are of the view that Section 31 read with Section 32 constitutes a Code by itself. It is a special provision. It is a mode of recovery. It does not prevent or exclude the SFC from invoking any other remedy open to it in law. However, once the SFC invokes Section 31(1), it has to proceed in accordance with the procedure prescribed in Section 32. Under Section 31(1), which is invoked by the SFC in this case, an application to obtain quicker remedy has to be made to the District Judge within whose jurisdiction the industrial concern is located. This is the mandate of Section 31(1). It is so mandated because wide powers are given to the District Judge under Sections 31 and 32 to attach, sell and recover outstanding dues of SFCs in the shortest possible time. In fact, sub-section (aa) stood inserted in Section 31(1) for enforcing the liability of any surety. 5. This sub-section is in addition to the power given to the District Judge to order sale of the property pledged, mortgaged, hypothecated or assigned to the SFC as security for loan or advance. An application under Section 31 can be filed even before the exercise of power under Section 29 of the 1951 Act or Section 69 of the Transfer of Property Act. 6. Under the circumstances, the High Court was right in coming to the conclusion that the VI Additional City Civil Judge, Bangalore, had no territorial jurisdiction to hear Misc. Case No. 109/1993 in view of Section 31 of the 1951 Act. The High Court was right in observing that the Corporation ought to have instituted the said case before the District Judge, Belgaum, within whose jurisdiction the industrial concern is located. Before concluding, we may indicate the scope of Section 46B. That section mandates that if any other law or memorandum or articles of association or any instrument deriving force from any other enactment is inconsistent with any provisions of the 1951 Act or Rules or orders made thereunder, the latter will prevail and the inconsistency will have no effect but if the provisions of the 1951 Act or Rules made thereunder are not inconsistent, they will be deemed to be in addition to the existing laws and memorandum or articles of association. Thus, the provisions of the 1951 Act and the Rules made thereunder shall have an overriding effect over the existing law and memorandum or articles of association or any other instrument made under the existing law if they are inconsistent but otherwise if not inconsistent they will be deemed to be in addition to and not derogating to any existing law, rules and orders. The 1951 Act is a special statute. Therefore, the provisions of the 1951 Act have to be strictly construed. In our view, reliance on Section 46B of the 1951 Act is misplaced. Section 46B will not control the parameters of territorial jurisdiction of the District Judge prescribed under Section 31(1) of the 1951 Act. Section 31(1) is a special provision. It mandates that all applications under Section 31(1) shall be made to the District Judge within the limits of whose jurisdiction the industrial concern carries on its business. The word may in Section 31(1) only indicates a mode of recovery in addition to any other modes available to the SFC in law. | 0[ds]4. The right of a State Financial Corporation (SFC for short) recognized under Section 29 of the 1951 Act is different from the right which the SFC can enforce under Section 31. Section 31 enables SFC, without having recourse to the provisions of Section 29 of the 1951 Act or Section 69 of the Transfer of Property Act, to have its right emanating from the agreement, enforced by initiating proceedings contemplated thereunder, namely, applying to the District Judge within the limits of whose jurisdiction the industrial concern carries on its business. Section 31 is one mode of recovery. Therefore, the power under Section 31 and Section 32 are in addition to the power of realization of money under the Transfer of Property Act or any other law. It is within the discretion of SFC to choose the forum under a particular Act. Once there is a default in the payment of loan, it is for the Corporation to decide as to whether it shall proceed under Section 29 for sale of the property mortgaged or whether it shall take any recourse under Section 31 of the 1951 Act. Section 31 of the Act had been enacted to enable the corporation to obtain quicker remedies from the highest Court of Original Civil Jurisdiction in the locality. Where the SFC takes recourse to the provisions of Section 31 of the Act and obtains an order from the Court, it shall ordinarily seek its enforcement in the manner provided for by Section 32 of the 1951 Act, which section is aimed to act in aid of the orders passed under Section 31 of the Act. Where the SFC takes recourse to Section 31 and obtains an order from the Court, it shall seek its enforcement in the manner provided for by Section 32 of the Act, therefore, Section 31 makes a provision for enforcement of claims. It is primarily procedural in nature. The remedy provided for under Section 31 is not in derogation of any other mode of recovery which is available to the SFC under any other law for the enforcement of its claims. The remedy under Section 31 is not the sole or exclusive remedy available to the SFC. It is only an additional remedy which is conferred upon the SFC. The substantive relief in an application under Section 31(1) is not a plaint. This is clear from the form of the application, the nature of the relief, the compulsion to make interim order, the limited enquiry contemplated by Section 32(6), the nature of the relief that can be granted and the method of execution. The proceedings under Section 32 of the 1951 Act are, therefore, nothing but execution proceedings. A combined reading of Section 31 and Section 32 of the 1951 Act indicates that an investigation has to be made to find out the terms and conditions on which loan was given by SFC to the industrial concern and whether SFC was entitled to the relief under Section 31(1) on account of the breech of the terms of agreement. Having discussed the nature of the proceedings under Section 31(1) of the 1951 Act we are of the view that Section 31 read with Section 32 constitutes a Code by itself. It is a special provision. It is a mode of recovery. It does not prevent or exclude the SFC from invoking any other remedy open to it in law. However, once the SFC invokes Section 31(1), it has to proceed in accordance with the procedure prescribed in Section 32. Under Section 31(1), which is invoked by the SFC in this case, an application to obtain quicker remedy has to be made to the District Judge within whose jurisdiction the industrial concern is located. This is the mandate of Section 31(1). It is so mandated because wide powers are given to the District Judge under Sections 31 and 32 to attach, sell and recover outstanding dues of SFCs in the shortest possible time. In fact, sub-section (aa) stood inserted in Section 31(1) for enforcing the liability of any surety5. This sub-section is in addition to the power given to the District Judge to order sale of the property pledged, mortgaged, hypothecated or assigned to the SFC as security for loan or advance. An application under Section 31 can be filed even before the exercise of power under Section 29 of the 1951 Act or Section 69 of the Transfer of Property Act6. Under the circumstances, the High Court was right in coming to the conclusion that the VI Additional City Civil Judge, Bangalore, had no territorial jurisdiction to hear Misc. Case No. 109/1993 in view of Section 31 of the 1951 Act. The High Court was right in observing that the Corporation ought to have instituted the said case before the District Judge, Belgaum, within whose jurisdiction the industrial concern is located. Before concluding, we may indicate the scope of Section 46B. That section mandates that if any other law or memorandum or articles of association or any instrument deriving force from any other enactment is inconsistent with any provisions of the 1951 Act or Rules or orders made thereunder, the latter will prevail and the inconsistency will have no effect but if the provisions of the 1951 Act or Rules made thereunder are not inconsistent, they will be deemed to be in addition to the existing laws and memorandum or articles of association. Thus, the provisions of the 1951 Act and the Rules made thereunder shall have an overriding effect over the existing law and memorandum or articles of association or any other instrument made under the existing law if they are inconsistent but otherwise if not inconsistent they will be deemed to be in addition to and not derogating to any existing law, rules and orders. The 1951 Act is a special statute. Therefore, the provisions of the 1951 Act have to be strictly construed. In our view, reliance on Section 46B of the 1951 Act is misplaced. Section 46B will not control the parameters of territorial jurisdiction of the District Judge prescribed under Section 31(1) of the 1951 Act. Section 31(1) is a special provision. It mandates that all applications under Section 31(1) shall be made to the District Judge within the limits of whose jurisdiction the industrial concern carries on its business. The word may in Section 31(1) only indicates a mode of recovery in addition to any other modes available to the SFC in law. | 0 | 3,275 | 1,204 | ### 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:
of whose jurisdiction the industrial concern carries on its business. Section 31 is one mode of recovery. Therefore, the power under Section 31 and Section 32 are in addition to the power of realization of money under the Transfer of Property Act or any other law. It is within the discretion of SFC to choose the forum under a particular Act. Once there is a default in the payment of loan, it is for the Corporation to decide as to whether it shall proceed under Section 29 for sale of the property mortgaged or whether it shall take any recourse under Section 31 of the 1951 Act. Section 31 of the Act had been enacted to enable the corporation to obtain quicker remedies from the highest Court of Original Civil Jurisdiction in the locality. Where the SFC takes recourse to the provisions of Section 31 of the Act and obtains an order from the Court, it shall ordinarily seek its enforcement in the manner provided for by Section 32 of the 1951 Act, which section is aimed to act in aid of the orders passed under Section 31 of the Act. Where the SFC takes recourse to Section 31 and obtains an order from the Court, it shall seek its enforcement in the manner provided for by Section 32 of the Act, therefore, Section 31 makes a provision for enforcement of claims. It is primarily procedural in nature. The remedy provided for under Section 31 is not in derogation of any other mode of recovery which is available to the SFC under any other law for the enforcement of its claims. The remedy under Section 31 is not the sole or exclusive remedy available to the SFC. It is only an additional remedy which is conferred upon the SFC. The substantive relief in an application under Section 31(1) is not a plaint. This is clear from the form of the application, the nature of the relief, the compulsion to make interim order, the limited enquiry contemplated by Section 32(6), the nature of the relief that can be granted and the method of execution. The proceedings under Section 32 of the 1951 Act are, therefore, nothing but execution proceedings. A combined reading of Section 31 and Section 32 of the 1951 Act indicates that an investigation has to be made to find out the terms and conditions on which loan was given by SFC to the industrial concern and whether SFC was entitled to the relief under Section 31(1) on account of the breech of the terms of agreement. Having discussed the nature of the proceedings under Section 31(1) of the 1951 Act we are of the view that Section 31 read with Section 32 constitutes a Code by itself. It is a special provision. It is a mode of recovery. It does not prevent or exclude the SFC from invoking any other remedy open to it in law. However, once the SFC invokes Section 31(1), it has to proceed in accordance with the procedure prescribed in Section 32. Under Section 31(1), which is invoked by the SFC in this case, an application to obtain quicker remedy has to be made to the District Judge within whose jurisdiction the industrial concern is located. This is the mandate of Section 31(1). It is so mandated because wide powers are given to the District Judge under Sections 31 and 32 to attach, sell and recover outstanding dues of SFCs in the shortest possible time. In fact, sub-section (aa) stood inserted in Section 31(1) for enforcing the liability of any surety. 5. This sub-section is in addition to the power given to the District Judge to order sale of the property pledged, mortgaged, hypothecated or assigned to the SFC as security for loan or advance. An application under Section 31 can be filed even before the exercise of power under Section 29 of the 1951 Act or Section 69 of the Transfer of Property Act. 6. Under the circumstances, the High Court was right in coming to the conclusion that the VI Additional City Civil Judge, Bangalore, had no territorial jurisdiction to hear Misc. Case No. 109/1993 in view of Section 31 of the 1951 Act. The High Court was right in observing that the Corporation ought to have instituted the said case before the District Judge, Belgaum, within whose jurisdiction the industrial concern is located. Before concluding, we may indicate the scope of Section 46B. That section mandates that if any other law or memorandum or articles of association or any instrument deriving force from any other enactment is inconsistent with any provisions of the 1951 Act or Rules or orders made thereunder, the latter will prevail and the inconsistency will have no effect but if the provisions of the 1951 Act or Rules made thereunder are not inconsistent, they will be deemed to be in addition to the existing laws and memorandum or articles of association. Thus, the provisions of the 1951 Act and the Rules made thereunder shall have an overriding effect over the existing law and memorandum or articles of association or any other instrument made under the existing law if they are inconsistent but otherwise if not inconsistent they will be deemed to be in addition to and not derogating to any existing law, rules and orders. The 1951 Act is a special statute. Therefore, the provisions of the 1951 Act have to be strictly construed. In our view, reliance on Section 46B of the 1951 Act is misplaced. Section 46B will not control the parameters of territorial jurisdiction of the District Judge prescribed under Section 31(1) of the 1951 Act. Section 31(1) is a special provision. It mandates that all applications under Section 31(1) shall be made to the District Judge within the limits of whose jurisdiction the industrial concern carries on its business. The word may in Section 31(1) only indicates a mode of recovery in addition to any other modes available to the SFC in law.
### Response:
0
### Explanation:
the limits of whose jurisdiction the industrial concern carries on its business. Section 31 is one mode of recovery. Therefore, the power under Section 31 and Section 32 are in addition to the power of realization of money under the Transfer of Property Act or any other law. It is within the discretion of SFC to choose the forum under a particular Act. Once there is a default in the payment of loan, it is for the Corporation to decide as to whether it shall proceed under Section 29 for sale of the property mortgaged or whether it shall take any recourse under Section 31 of the 1951 Act. Section 31 of the Act had been enacted to enable the corporation to obtain quicker remedies from the highest Court of Original Civil Jurisdiction in the locality. Where the SFC takes recourse to the provisions of Section 31 of the Act and obtains an order from the Court, it shall ordinarily seek its enforcement in the manner provided for by Section 32 of the 1951 Act, which section is aimed to act in aid of the orders passed under Section 31 of the Act. Where the SFC takes recourse to Section 31 and obtains an order from the Court, it shall seek its enforcement in the manner provided for by Section 32 of the Act, therefore, Section 31 makes a provision for enforcement of claims. It is primarily procedural in nature. The remedy provided for under Section 31 is not in derogation of any other mode of recovery which is available to the SFC under any other law for the enforcement of its claims. The remedy under Section 31 is not the sole or exclusive remedy available to the SFC. It is only an additional remedy which is conferred upon the SFC. The substantive relief in an application under Section 31(1) is not a plaint. This is clear from the form of the application, the nature of the relief, the compulsion to make interim order, the limited enquiry contemplated by Section 32(6), the nature of the relief that can be granted and the method of execution. The proceedings under Section 32 of the 1951 Act are, therefore, nothing but execution proceedings. A combined reading of Section 31 and Section 32 of the 1951 Act indicates that an investigation has to be made to find out the terms and conditions on which loan was given by SFC to the industrial concern and whether SFC was entitled to the relief under Section 31(1) on account of the breech of the terms of agreement. Having discussed the nature of the proceedings under Section 31(1) of the 1951 Act we are of the view that Section 31 read with Section 32 constitutes a Code by itself. It is a special provision. It is a mode of recovery. It does not prevent or exclude the SFC from invoking any other remedy open to it in law. However, once the SFC invokes Section 31(1), it has to proceed in accordance with the procedure prescribed in Section 32. Under Section 31(1), which is invoked by the SFC in this case, an application to obtain quicker remedy has to be made to the District Judge within whose jurisdiction the industrial concern is located. This is the mandate of Section 31(1). It is so mandated because wide powers are given to the District Judge under Sections 31 and 32 to attach, sell and recover outstanding dues of SFCs in the shortest possible time. In fact, sub-section (aa) stood inserted in Section 31(1) for enforcing the liability of any surety5. This sub-section is in addition to the power given to the District Judge to order sale of the property pledged, mortgaged, hypothecated or assigned to the SFC as security for loan or advance. An application under Section 31 can be filed even before the exercise of power under Section 29 of the 1951 Act or Section 69 of the Transfer of Property Act6. Under the circumstances, the High Court was right in coming to the conclusion that the VI Additional City Civil Judge, Bangalore, had no territorial jurisdiction to hear Misc. Case No. 109/1993 in view of Section 31 of the 1951 Act. The High Court was right in observing that the Corporation ought to have instituted the said case before the District Judge, Belgaum, within whose jurisdiction the industrial concern is located. Before concluding, we may indicate the scope of Section 46B. That section mandates that if any other law or memorandum or articles of association or any instrument deriving force from any other enactment is inconsistent with any provisions of the 1951 Act or Rules or orders made thereunder, the latter will prevail and the inconsistency will have no effect but if the provisions of the 1951 Act or Rules made thereunder are not inconsistent, they will be deemed to be in addition to the existing laws and memorandum or articles of association. Thus, the provisions of the 1951 Act and the Rules made thereunder shall have an overriding effect over the existing law and memorandum or articles of association or any other instrument made under the existing law if they are inconsistent but otherwise if not inconsistent they will be deemed to be in addition to and not derogating to any existing law, rules and orders. The 1951 Act is a special statute. Therefore, the provisions of the 1951 Act have to be strictly construed. In our view, reliance on Section 46B of the 1951 Act is misplaced. Section 46B will not control the parameters of territorial jurisdiction of the District Judge prescribed under Section 31(1) of the 1951 Act. Section 31(1) is a special provision. It mandates that all applications under Section 31(1) shall be made to the District Judge within the limits of whose jurisdiction the industrial concern carries on its business. The word may in Section 31(1) only indicates a mode of recovery in addition to any other modes available to the SFC in law.
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Pr. Commissioner of Income Tax - 6 Vs. Eight Roads Investments Advisors Private Limited (Formerly Known As Fil Capital Advisors India Private Limited) | comparable on the basis of the functionality of the said companies in the public domain. We find that such a detailed exercise having been undertaken by the Tribunal qua each and every comparable company, the reasons given by the Tribunal cannot be faulted with in respect of the comparable companies. The Tribunal has referred to and relied upon the order passed by this Court in the case of Principal Commissioner of Income Tax - 14 Vs. Temasek Holdings Advisors India Pvt. Ltd. in Income Tax Appeal No.304 of 2017 delivered on 16th April 2019, wherein the following substantial questions of law were framed.(a) Whether on the facts and in the circumstances of the case, the Tribunal is correct in law in directing the Assessing Officer to include ICRA Management Consultancy Services Ltd., Kinetic Trust Limited in the set of comparable companies while determining the TP adjustment of international transaction (b) Whether on the facts and in the circumstances of the case, the Tribunal is correct in law in striking down the additional markup margin of 3% to the average PLI of the comparable companies selected by the TPO 17. In the said order, this Court after referring to another order dated 17th November 2016 passed in Income Tax Appeal No.1051 of 2014 dismissed the revenues appeal raising objection to the Tribunals decision to include ICRA Management Consultancy Services Ltd. and Kinetic Trust Limited which were both rejected by the TPO. So also in the present case, the comparables suggested by the assessee which were excluded by the TPO / DRP were in fact adopted as comparables by the TPO for the financial year 2009 - 2010 in the case of the assessee itself. This aspect was also considered in the aforesaid order.18. The assessee has placed before us a copy of the judgment delivered by this Court in the case of Principal Commissioner of Income Tax - 3 V/s. M/s. Bain Capital and Advisors (I) P. Ltd. in Income Tax Appeal No.541 of 2016, dated 24th November 2018, wherein the revenue had urged the following question for consideration.Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that Motilal Oswal Investment Advisors Pvt. Ltd. and M/s. IDFC Ltd. were not comparables for the purpose of Rule 10B of the Income Tax Rules 19. This Court after due consideration dismissed the appeal of the revenue holding that no substantial question of law arose from the order of the Tribunal. 20. On a thorough consideration we find that the rational for inclusion of the six comparables excluded by the TPO have been dealt with in extensive detail by the Tribunal and we are in agreement with the reasons recorded by the Tribunal. Further the reasons given for inclusion of the five new comparables by the TPO have been decidedly set aside by the Tribunal on the basis of decisions rendered by this Court either in the case of the assessee itself and / or in other cases after proper consideration. 21. At this stage we would like to refer to paragraph No.54 in the judgment of Principal Commissioner of Income Tax Vs. M/s. Softbrands India Pvt. Ltd. (supra), which reads thus :54. The procedure of assessment under Chapter X relating to international transactions as indicated above is already a lengthy one and involves multiple Authorities of the Department. A huge, cumbersome and tenacious exercise of Transfer Pricing Analysis has to be undertaken by the Corporate Entities who have to comply with the various provisions of the Act and Rules with a huge Data Bank and in the first instance they have to satisfy that the profits or the income from transactions declared by them is at Arms length which analysis is invariably put to test and inquiry by the Authorities of the Department and through the process of Transfer Pricing Officer (TPO) and Dispute Resolution Panel (DRP) and the Tribunal at various stages, the assessee has a cumbersome task of compliance and it has to satisfy the Authorities that what has been declared by them is true and fair disclosure and much of the Transfer Pricing Adjustments is not required but the Tax Authorities have their own view on the other side and the effort on the part of the Tax Revenue Authorities is always to extract more and more revenue. This process of making huge Transfer Pricing Adjustments results in multi- layer litigation at multiple Fora. After the lengthy process of the same, the matter reaches the Tribunal which also takes its own time to decide such appeals. In the course of this dispute resolution, much has already been lost in the form of time, man-hours and money, besides giving an adverse picture of the sluggish Dispute Resolution process through these channels. If appeals under Section 260-A of the Act were to be lightly entertained by High Court against the findings of the Tribunal, without putting it to a strict scrutiny of the existence of the substantial questions of law, it is likely to open the flood-gates for this litigation to spill over on the dockets of the High Courts and up to the Supreme Court, where such further delay may further cause serious damage to the demand of expeditious judicial dispensation in such cases.22. From the above, it is clear that the appeal filed under Section 260A of said Act is required to be entertained only on substantial question of law arising out of the order of the Tribunal, keeping in mind that we can not disturb findings of fact under Section 260A of the said Act unless such findings are shown to be ex-facie perverse and unsustainable and exhibit a total non-application of mind. We are therefore of considered opinion that the present appeal filed by the Revenue does not give rise to any substantial question of law. The appeal filed by the Revenue is found to be devoid of merit and the same is liable to be dismissed. | 0[ds]8. At the outset, we would like to state that, the findings arrived at by the Tribunal are entirely one of facts and the revenue has failed to show as to how the said findings are perverse in any manner whatsoever.In view of the above detailed reproduction of the reasonings given by the Tribunal we find that, while undertaking the exercise to arrive at the arms length price which is essentially a matter of estimate of the fair value which the Indian Company had paid or had received from its Associate Enterprise (A.E.), such exercise is required to be undertaken by the TPO on the basis of the facts and figures relating to comparable cases of other similarly placed entities, whose relevant data is available in the public domain. As per the provisions of the Act and the Rules, the assessee company is required to furnish its own Transfer Pricing Analysis and the list of chosen comparables which may or may not be agreed to by the Revenue Authorities and they would introduce some more comparables rejecting the comparables given by the assessee company by applying certain filters like Related Party Transactions (RPT) filter, turnover filter, export earnings filter, employee cost filter, etc to bring them within the comparable range of the cases of such comparables and generally there would be a tug of war between the assessee and the revenue in such a situation. We would state that the assessee company would normally choose comparables, whose operating profit margins are less or only little more than the assessee, but the revenue would bring in comparables with higher profit margins. The TPO, may in the case of an assessee introduce and suggest comparables whose operating margins are higher than the assessee company so as to make transfer pricing adjustments in the declared income of the assessee, resulting in fetching of more revenue. From the aforesaid quoted paragraphs from the Tribunals order, it is evident that, individual cases of such comparables have been juxtaposed with the functionality of the assessee considered, analyzed and discussed by the Tribunal in respect of comparables which were excluded by the TPO as also in the case of those comparables which were included by the TPO. It is quite common to note that, while some comparables are found to be appropriate and really comparable to the facts of the assessee company, some are not and it would ultimately result in whether the correct filters have been properly applied or not or whether the most appropriate method of determination of arms length price has been adopted or not to make fair and reasonable transfer pricing adjustments in the hands of the assessee. However, the entire exercise of making transfer pricing adjustments on the basis of comparables is nothing but a matter of estimate of a broad and fair guess-work of the authorities based on factual relevant materials brought before the authorities i.e. the TPO, the DRP and the Tribunal, which are the fact finding authorities.In the case before us the TNMM method appears to have been the most popular and widely adopted method for determining the Arms Length Price in which the operating profit margin of comparable companies are considered by the authorities and applied to the case of the assessee to determine the Arms Length Price to make transfer pricing adjustments. Rules 10-A, 10-AB, 10-B, 10-C and 10-CA of the Income Tax Rules, 1962 prescribe the manner for working out Arms Length Price under the prescribed methods. From the aforesaid scheme of assessment, it is clear that the process of determination of Arms Length Price has to be undertaken by the Expert Wing of the Income Tax Department which is manned by TPO and at the higher level by a collegium of three Commissioners in the form of DRP whose orders are appealable before the Appellate Tribunal. In the above backdrop, in so far as the present case is concerned the TPO had rejected six comparable companies chosen by the assessee for bench marking namely i) Access India Advisors Limited; ii) ICRA Management Consulting Services Limited; iii) IDC (India) Limited; iv) Informed Technologies Limited; v) Integrated Capital Services Limited and vi) Kinetic Trust Limited. The Transfer Pricing Officer (TPO) only accepted one company as a comparable company being Future Capital Investment Advisors Limited but undertook a further detailed analyses and proposed to include the following five more companies as comparables namely i) Future Capital Holdings Limited (Segmental); ii)ICRA Online Limited(Segmental); iii) IDFC Investment Advisors Private Limited; iv) Kshitij Investment Advisors Limited and v) Motilal Oswal Investment Advisors Private Limited.The submissions advanced on behalf of the respective parties are mostly based upon the filters which have been applied which are essentially related to turnover filter, the comparable entities being functional entities, higher transfer pricing adjustments, transfer pricing analyses and profits declared by the companies. We have quoted the specific findings given by the Tribunal and would therefore, not like to dwelve deeper or reiterate the same. We would however like to say that the Tribunal has considered the case of each comparable company and discussed the parameters of comparables for the purposes of including the same as a comparable and / or excluding the same as comparable on the basis of the functionality of the said companies in the public domain. We find that such a detailed exercise having been undertaken by the Tribunal qua each and every comparable company, the reasons given by the Tribunal cannot be faulted with in respect of the comparablealso in the present case, the comparables suggested by the assessee which were excluded by the TPO / DRP were in fact adopted as comparables by the TPO for the financial year 2009 - 2010 in the case of the assessee itself. This aspect was also considered in the aforesaid order.On a thorough consideration we find that the rational for inclusion of the six comparables excluded by the TPO have been dealt with in extensive detail by the Tribunal and we are in agreement with the reasons recorded by the Tribunal. Further the reasons given for inclusion of the five new comparables by the TPO have been decidedly set aside by the Tribunal on the basis of decisions rendered by this Court either in the case of the assessee itself and / or in other cases after proper consideration.From the above, it is clear that the appeal filed under Section 260A of said Act is required to be entertained only on substantial question of law arising out of the order of the Tribunal, keeping in mind that we can not disturb findings of fact under Section 260A of the said Act unless such findings are shown to be ex-facie perverse and unsustainable and exhibit a total non-application of mind. We are therefore of considered opinion that the present appeal filed by the Revenue does not give rise to any substantial question of law. The appeal filed by the Revenue is found to be devoid of merit and the same is liable to be dismissed. | 0 | 15,586 | 1,265 | ### Instruction:
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comparable on the basis of the functionality of the said companies in the public domain. We find that such a detailed exercise having been undertaken by the Tribunal qua each and every comparable company, the reasons given by the Tribunal cannot be faulted with in respect of the comparable companies. The Tribunal has referred to and relied upon the order passed by this Court in the case of Principal Commissioner of Income Tax - 14 Vs. Temasek Holdings Advisors India Pvt. Ltd. in Income Tax Appeal No.304 of 2017 delivered on 16th April 2019, wherein the following substantial questions of law were framed.(a) Whether on the facts and in the circumstances of the case, the Tribunal is correct in law in directing the Assessing Officer to include ICRA Management Consultancy Services Ltd., Kinetic Trust Limited in the set of comparable companies while determining the TP adjustment of international transaction (b) Whether on the facts and in the circumstances of the case, the Tribunal is correct in law in striking down the additional markup margin of 3% to the average PLI of the comparable companies selected by the TPO 17. In the said order, this Court after referring to another order dated 17th November 2016 passed in Income Tax Appeal No.1051 of 2014 dismissed the revenues appeal raising objection to the Tribunals decision to include ICRA Management Consultancy Services Ltd. and Kinetic Trust Limited which were both rejected by the TPO. So also in the present case, the comparables suggested by the assessee which were excluded by the TPO / DRP were in fact adopted as comparables by the TPO for the financial year 2009 - 2010 in the case of the assessee itself. This aspect was also considered in the aforesaid order.18. The assessee has placed before us a copy of the judgment delivered by this Court in the case of Principal Commissioner of Income Tax - 3 V/s. M/s. Bain Capital and Advisors (I) P. Ltd. in Income Tax Appeal No.541 of 2016, dated 24th November 2018, wherein the revenue had urged the following question for consideration.Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that Motilal Oswal Investment Advisors Pvt. Ltd. and M/s. IDFC Ltd. were not comparables for the purpose of Rule 10B of the Income Tax Rules 19. This Court after due consideration dismissed the appeal of the revenue holding that no substantial question of law arose from the order of the Tribunal. 20. On a thorough consideration we find that the rational for inclusion of the six comparables excluded by the TPO have been dealt with in extensive detail by the Tribunal and we are in agreement with the reasons recorded by the Tribunal. Further the reasons given for inclusion of the five new comparables by the TPO have been decidedly set aside by the Tribunal on the basis of decisions rendered by this Court either in the case of the assessee itself and / or in other cases after proper consideration. 21. At this stage we would like to refer to paragraph No.54 in the judgment of Principal Commissioner of Income Tax Vs. M/s. Softbrands India Pvt. Ltd. (supra), which reads thus :54. The procedure of assessment under Chapter X relating to international transactions as indicated above is already a lengthy one and involves multiple Authorities of the Department. A huge, cumbersome and tenacious exercise of Transfer Pricing Analysis has to be undertaken by the Corporate Entities who have to comply with the various provisions of the Act and Rules with a huge Data Bank and in the first instance they have to satisfy that the profits or the income from transactions declared by them is at Arms length which analysis is invariably put to test and inquiry by the Authorities of the Department and through the process of Transfer Pricing Officer (TPO) and Dispute Resolution Panel (DRP) and the Tribunal at various stages, the assessee has a cumbersome task of compliance and it has to satisfy the Authorities that what has been declared by them is true and fair disclosure and much of the Transfer Pricing Adjustments is not required but the Tax Authorities have their own view on the other side and the effort on the part of the Tax Revenue Authorities is always to extract more and more revenue. This process of making huge Transfer Pricing Adjustments results in multi- layer litigation at multiple Fora. After the lengthy process of the same, the matter reaches the Tribunal which also takes its own time to decide such appeals. In the course of this dispute resolution, much has already been lost in the form of time, man-hours and money, besides giving an adverse picture of the sluggish Dispute Resolution process through these channels. If appeals under Section 260-A of the Act were to be lightly entertained by High Court against the findings of the Tribunal, without putting it to a strict scrutiny of the existence of the substantial questions of law, it is likely to open the flood-gates for this litigation to spill over on the dockets of the High Courts and up to the Supreme Court, where such further delay may further cause serious damage to the demand of expeditious judicial dispensation in such cases.22. From the above, it is clear that the appeal filed under Section 260A of said Act is required to be entertained only on substantial question of law arising out of the order of the Tribunal, keeping in mind that we can not disturb findings of fact under Section 260A of the said Act unless such findings are shown to be ex-facie perverse and unsustainable and exhibit a total non-application of mind. We are therefore of considered opinion that the present appeal filed by the Revenue does not give rise to any substantial question of law. The appeal filed by the Revenue is found to be devoid of merit and the same is liable to be dismissed.
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would introduce some more comparables rejecting the comparables given by the assessee company by applying certain filters like Related Party Transactions (RPT) filter, turnover filter, export earnings filter, employee cost filter, etc to bring them within the comparable range of the cases of such comparables and generally there would be a tug of war between the assessee and the revenue in such a situation. We would state that the assessee company would normally choose comparables, whose operating profit margins are less or only little more than the assessee, but the revenue would bring in comparables with higher profit margins. The TPO, may in the case of an assessee introduce and suggest comparables whose operating margins are higher than the assessee company so as to make transfer pricing adjustments in the declared income of the assessee, resulting in fetching of more revenue. From the aforesaid quoted paragraphs from the Tribunals order, it is evident that, individual cases of such comparables have been juxtaposed with the functionality of the assessee considered, analyzed and discussed by the Tribunal in respect of comparables which were excluded by the TPO as also in the case of those comparables which were included by the TPO. It is quite common to note that, while some comparables are found to be appropriate and really comparable to the facts of the assessee company, some are not and it would ultimately result in whether the correct filters have been properly applied or not or whether the most appropriate method of determination of arms length price has been adopted or not to make fair and reasonable transfer pricing adjustments in the hands of the assessee. However, the entire exercise of making transfer pricing adjustments on the basis of comparables is nothing but a matter of estimate of a broad and fair guess-work of the authorities based on factual relevant materials brought before the authorities i.e. the TPO, the DRP and the Tribunal, which are the fact finding authorities.In the case before us the TNMM method appears to have been the most popular and widely adopted method for determining the Arms Length Price in which the operating profit margin of comparable companies are considered by the authorities and applied to the case of the assessee to determine the Arms Length Price to make transfer pricing adjustments. Rules 10-A, 10-AB, 10-B, 10-C and 10-CA of the Income Tax Rules, 1962 prescribe the manner for working out Arms Length Price under the prescribed methods. From the aforesaid scheme of assessment, it is clear that the process of determination of Arms Length Price has to be undertaken by the Expert Wing of the Income Tax Department which is manned by TPO and at the higher level by a collegium of three Commissioners in the form of DRP whose orders are appealable before the Appellate Tribunal. In the above backdrop, in so far as the present case is concerned the TPO had rejected six comparable companies chosen by the assessee for bench marking namely i) Access India Advisors Limited; ii) ICRA Management Consulting Services Limited; iii) IDC (India) Limited; iv) Informed Technologies Limited; v) Integrated Capital Services Limited and vi) Kinetic Trust Limited. The Transfer Pricing Officer (TPO) only accepted one company as a comparable company being Future Capital Investment Advisors Limited but undertook a further detailed analyses and proposed to include the following five more companies as comparables namely i) Future Capital Holdings Limited (Segmental); ii)ICRA Online Limited(Segmental); iii) IDFC Investment Advisors Private Limited; iv) Kshitij Investment Advisors Limited and v) Motilal Oswal Investment Advisors Private Limited.The submissions advanced on behalf of the respective parties are mostly based upon the filters which have been applied which are essentially related to turnover filter, the comparable entities being functional entities, higher transfer pricing adjustments, transfer pricing analyses and profits declared by the companies. We have quoted the specific findings given by the Tribunal and would therefore, not like to dwelve deeper or reiterate the same. We would however like to say that the Tribunal has considered the case of each comparable company and discussed the parameters of comparables for the purposes of including the same as a comparable and / or excluding the same as comparable on the basis of the functionality of the said companies in the public domain. We find that such a detailed exercise having been undertaken by the Tribunal qua each and every comparable company, the reasons given by the Tribunal cannot be faulted with in respect of the comparablealso in the present case, the comparables suggested by the assessee which were excluded by the TPO / DRP were in fact adopted as comparables by the TPO for the financial year 2009 - 2010 in the case of the assessee itself. This aspect was also considered in the aforesaid order.On a thorough consideration we find that the rational for inclusion of the six comparables excluded by the TPO have been dealt with in extensive detail by the Tribunal and we are in agreement with the reasons recorded by the Tribunal. Further the reasons given for inclusion of the five new comparables by the TPO have been decidedly set aside by the Tribunal on the basis of decisions rendered by this Court either in the case of the assessee itself and / or in other cases after proper consideration.From the above, it is clear that the appeal filed under Section 260A of said Act is required to be entertained only on substantial question of law arising out of the order of the Tribunal, keeping in mind that we can not disturb findings of fact under Section 260A of the said Act unless such findings are shown to be ex-facie perverse and unsustainable and exhibit a total non-application of mind. We are therefore of considered opinion that the present appeal filed by the Revenue does not give rise to any substantial question of law. The appeal filed by the Revenue is found to be devoid of merit and the same is liable to be dismissed.
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Y. Narayana Chetty & Another Vs. The Income-Tax Officer, Nellore And Others | firm for registration, it would normally be open to him to cancel such registration if he discovers that registration had been erroneously granted to a firm which did not exist. R. 6B has been made to clarify this position and to confer on the Income-tax Officer in express and specific terms such authority to review his own decision in the matter of the registration of the firm when he discovers that his earlier decision proceeded on a wrong assumption about the existence of the firm. In our opinion, there is no difficulty in holding that R. 6B is obviously intended to carry out the purpose of the Act and since it is not inconsistent with any of the provisions of the Act its validity is not open to doubt.11. It is, however, urged that whereas the firm aggrieved by the order passed by the Income-tax Officer under S. 23 (4) can challenge the correctness or propriety of the order in an appeal against the final assessment order passed under S. 23, no such remedy is available to the firm whose registration is cancelled under R. 6B.We are not impressed by this argument. The validity of the rule cannot, in our opinion, be challenged merely on the ground that no appeal has been provided against the order passed under the impugned rule. It is also true that where-as before taking action under S. 23 (4) the Income-tax Officer is required to issue a notice to the firm, no such provision is made under R. 6B.Mr. Sastri has, however, conceded that the appellant before us had notice and was given an opportunity to satisfy the Income-tax Officer that the respective firms were genuine and not fictitious. That being so we do not think that it would be open to the appellant to contend that the order passed against him under R. 6B is invalid on the purely academic ground that R. 6B does not require notice to be issued before the registration of a firm is cancelled. If the power under R. 6B is exercised by the Income-tax Officer against a firm without giving it a notice in that behalf and without affording it an opportunity to satisfy the officer that it is a genuine firm, may be open to the firm to question the validity of the order on that grounds. We are, however, not called upon to deal with such a case in the present appeals, In this connection we may incidentally refer to the decision of this Court in Ravula Subba Rao v. Commr. of I.T., Madras, 1956 S C R 577 : ((S) AIR 1956 SC 604 ) where this Court has held that rules (2) and (6) of the rules framed under S. 59 of the Indian income-tax Act are not ultra vires the rule-making authority,12. The last argument which Mr. Sastri sought to raise before us was that the revised assessment is completely illogical, and therefore illegal, in each case inasmuch as the original assessment for the two assessment years still remains as on the basis that the firms in question are registered and the fresh assessment in respect of the escaped income for the same years is made on the basis that the said firms are not registered. Mr. Sastri says that it is not open to the Income-tax Officer to adopt such a course. If registration has been cancelled the whole of the assessment should be made on that footing; the department cannot treat the firm as registered for part of the income, and unregistered for the balance, during the same assessment years; that is Mr. Sastris grievance. We do not propose to deal with the merits of this contention. There can be no doubt that it would be open to the appellants to raise this contention in the appeals which they have filed against the fresh orders of assessment. We understand that applications have been made by the appellants in respect of the said orders of assessment under S. 27 of the Act. If that be so, the appellants may, if it is open to them to do so ventilate their grievance in the said proceedings also. We hold that this contention cannot be urged in petitions for writs of prohibition under Art. 226 of the Constitution, since they do not raise any question of jurisdiction.All that the appellants would be able to argue on this ground would be that the course adopted by the Income-tax Officer in making orders of fresh assessment is irregular and illogical and should be corrected. That is a matter concerning the merits of the orders of assessment and by no stretch of imagination can it be said to raise any question of jurisdiction under Art. 226. That is why we express no opinion on this point.13. Before we part with this case we would like to observe that Mr. Kripal for the respondent sought to raise three preliminary objections. He urged that the issue of a writ is a discretionary matter and since the High Court has refused to exercise its discretion in favour of the appellants the appeals would be virtually incompetent inasmuch as this Court would be slow to interfere with the exercise of discretion by the High Court. He also argued that the original petitions to the High Court are incompetent under Art. 226 since under the Act the appellants had an alternative effective remedy available to them in the form of appeals against the impugned orders and in fact they had filed such appeals and had also made applications under S. 27 of the Act. Mr. Kripal also contended that the High Court would have no jurisdiction to issue a writ of prohibition against the tax authorities. We do not propose to consider these objections because, as we have already indicated, we are satisfied that the view taken by the High Court on the points raised before it is right. These objections may have to be considered in future on a suitable occasion. | 0[ds]In the present case the Income-tax Officer has purported to act under, S. 34 (1) (a) against the three firms. The said sub-section provides inter alia that "if the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to make a return of his income under S. 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax has been under-assesse ," he may, within the time prescribed, "serve on the assessee a notice containing all or any of the requirements which may be included in the notice under(2) of S. 22 and may proceed to re-assess such income, profits or gains." The argument is that the service of the requisite notice on the assessee is a condition precedent to the validity of any re-assessment made under S. 34; and if a valid notice is not issued as required, proceedings taken by the Income-tax Officer in pursuance of an invalid notice and consequent orders of re-assessment passed by him would be void and inoperative. In our opinion, this contention is well-founded.The notice prescribed by S. 34 cannot be regarded as a mere procedural requirement; it is only if the said notice is served on the assessee as required that the Income- tax Officer would be justified in taking proceedings against him. If no notice is issued or if the notice issued is shown to be invalid then the validity of the proceedings taken by the Income-tax Officer without a notice or in pursuance of an invalid notice would be illegal andour opinion, this argument is not well-founded. Section 3 of the Act which is the charging section provides inter alia that "where any Central Act enacts that income-tax can be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with and subject to the provisions of this Act in respect of the total income of the previous year of every firm;"in other words, a firm is specifically treated as an assessee by S.Besides, the word "person" used by S. 2(2) of the Act while defining the assessee, would obviously include a firm under S. 3 (39) of the General Clauses Act since it provides that a person includes "any company or association or body of individuals whether incorporated or not". Therefore, it would not be correct to say that an assessee under S. 2,(2) of the Act necessarily means an individual partner and does not include a firm. The argument based upon the relevant provisions of S. 23 (5 ) it also not valid because it is obvious that for the purposes of assessment at all relevant and material stages under Ss. 22 and 23 it is the firm that is treated as an assessee. When a return of the income is made for the relevant year, it is a return with regard to the total income of the firm that has to be submitted under S. 22; and when assessment is levied under S. 23, the Income-tax Officer determines and can determine the total income of each partner of the firm only after ascertaining the total income of the firm itself. It is true that S. 23(5) as it then stood required the Income-tax Officer to determine the total income of each partner of the firm including his share of the firms income and to assess each partner in respect of such income, and in that sense individual partner of the firm undoubtedly became liable to pay income-tax; but it is clear that in determining the total income of each partner his share in the firms income has to be included and so the firm does not cease to be an assessee for the purpose of S.provision clearly shows that the person to whom the first part of the provision refers includes a firm and it lays down that if a firm commits a default as indicated the Income-tax Officer may refuse to register it or may cancel its registration if it is already registered.Thus there can be no doubt that S. 28 (4) treats the firm as an assessee and provides for the imposition of penalty against the firm in case the firm commits any of the defaults indicated in the sub-section. The effect of the relevant provisions of S. 23 therefore is that for the assessment of the total taxable income it is the affairs of the assessee firm that are investigated and examined and when the total income of the firm is ascertained, it is allocated to its individual partners in proportion to their respective shares. The result of such allocation undoubtedly is to make the partners liable to pay tax in respect of their taxable income thus allocated; but that cannot justify the inference that the firm is not an assessee in the relevantare, therefore, satisfied that it is not open to the appellants to contend that the proceedings taken by the Income-tax Officer under S.34(1)(a) are invalid in that notices of these proceedings have not been served on the other allege partners of the firms. Incidentally it may be pointed out that the finding of the Income-tax Officer in respect of all the three firms is that the only persons who had interest in the business carried on by the said firms were B. Audeyya and C. Pitchayya.It is remarkable that B. Audeyya has not cared to challenge the proceedings or to question the validity of the fresh assessment orders passed by the Income-tax Officer in the presentappellant suggests that the only cases in which such registration can he cancelled are those prescribed in S. 23 (4). We have no doubt that this argument is fallacious. The cancellation of registration under S. 23 (4) is in the nature of a penalty and the penalty can he imposed against a firm if it is guilty of any of the defaults mentioned in the said sub--section. It would be noticed that where registration is cancelled under S. 23 (4), there is no doubt that the application for registration had been properly granted. The basis of an order under S. 23 (4) is not that the firm which had been registered was a fictitious one, but that, though the registered firm was genuine, by its failure to comply with the requirements of law it had incurred the penalty of having its registration cancelled. That is the effect of the provisions of S. 23 (4). On the other hand, R. 6B deals with cases where the Income-tax Officer is satisfied that a certificate of registration has been granted under R. 4 or under R. 6A without there being a genuine firm in existence; that is to say an application for registration had been made in the name of a firm which really did not exist; andon that ground the Income-tax Officer proposes to set right the matter by cancelling the certificate which should never have born granted to the alleged firm. That being the effect of R. 6B it is impossible to accede to the argument that the provisions of this rule are inconsistent with the provisions of S. 23 (4) of the Act. If the Income-tax Officer is empowered under S. 26A read with the relevant rules to grant or refuse the request of the firm for registration, it would normally be open to him to cancel such registration if he discovers that registration had been erroneously granted to a firm which did not exist. R. 6B has been made to clarify this position and to confer on the Income-tax Officer in express and specific terms such authority to review his own decision in the matter of the registration of the firm when he discovers that his earlier decision proceeded on a wrong assumption about the existence of the firm. In our opinion, there is no difficulty in holding that R. 6B is obviously intended to carry out the purpose of the Act and since it is not inconsistent with any of the provisions of the Act its validity is not open to doubt.It is, however, urged that whereas the firm aggrieved by the order passed by the Income-tax Officer under S. 23 (4) can challenge the correctness or propriety of the order in an appeal against the final assessment order passed under S. 23, no such remedy is available to the firm whose registration is cancelled under R. 6B.We are not impressed by this argument. The validity of the rule cannot, in our opinion, be challenged merely on the ground that no appeal has been provided against the order passed under the impugned rule. It is also true that where-as before taking action under S. 23 (4) the Income-tax Officer is required to issue a notice to the firm, no such provision is made under R.being so we do not think that it would be open to the appellant to contend that the order passed against him under R. 6B is invalid on the purely academic ground that R. 6B does not require notice to be issued before the registration of a firm is cancelled. If the power under R. 6B is exercised by the Income-tax Officer against a firm without giving it a notice in that behalf and without affording it an opportunity to satisfy the officer that it is a genuine firm, may be open to the firm to question the validity of the order on that grounds. We are, however, not called upon to deal with such a case in the present appeals, In this connection we may incidentally refer to the decision of this Court in Ravula Subba Rao v. Commr. of I.T., Madras, 1956 S C R 577 : ((S) AIR 1956 SC 604 ) where this Court has held that rules (2) and (6) of the rules framed under S. 59 of the Indian income-tax Act are not ultra vires the rule-makingdo not propose to deal with the merits of this contention. There can be no doubt that it would be open to the appellants to raise this contention in the appeals which they have filed against the fresh orders of assessment. We understand that applications have been made by the appellants in respect of the said orders of assessment under S. 27 of the Act. If that be so, the appellants may, if it is open to them to do so ventilate their grievance in the said proceedings also. We hold that this contention cannot be urged in petitions for writs of prohibition under Art. 226 of the Constitution, since they do not raise any question of jurisdiction.All that the appellants would be able to argue on this ground would be that the course adopted by the Income-tax Officer in making orders of fresh assessment is irregular and illogical and should be corrected. That is a matter concerning the merits of the orders of assessment and by no stretch of imagination can it be said to raise any question of jurisdiction under Art.That is why we express no opinion on this point.Before we part with this case we would like to observe that Mr. Kripal for the respondent sought to raise three preliminary objections. He urged that the issue of a writ is a discretionary matter and since the High Court has refused to exercise its discretion in favour of the appellants the appeals would be virtually incompetent inasmuch as this Court would be slow to interfere with the exercise of discretion by the High Court. He also argued that the original petitions to the High Court are incompetent under Art. 226 since under the Act the appellants had an alternative effective remedy available to them in the form of appeals against the impugned orders and in fact they had filed such appeals and had also made applications under S. 27 of the Act. Mr. Kripal also contended that the High Court would have no jurisdiction to issue a writ of prohibition against the tax authorities. We do not propose to consider these objections because, as we have already indicated, we are satisfied that the view taken by the High Court on the points raised before it is right. These objections may have to be considered in future on a suitable occasion. | 0 | 5,360 | 2,230 | ### 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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firm for registration, it would normally be open to him to cancel such registration if he discovers that registration had been erroneously granted to a firm which did not exist. R. 6B has been made to clarify this position and to confer on the Income-tax Officer in express and specific terms such authority to review his own decision in the matter of the registration of the firm when he discovers that his earlier decision proceeded on a wrong assumption about the existence of the firm. In our opinion, there is no difficulty in holding that R. 6B is obviously intended to carry out the purpose of the Act and since it is not inconsistent with any of the provisions of the Act its validity is not open to doubt.11. It is, however, urged that whereas the firm aggrieved by the order passed by the Income-tax Officer under S. 23 (4) can challenge the correctness or propriety of the order in an appeal against the final assessment order passed under S. 23, no such remedy is available to the firm whose registration is cancelled under R. 6B.We are not impressed by this argument. The validity of the rule cannot, in our opinion, be challenged merely on the ground that no appeal has been provided against the order passed under the impugned rule. It is also true that where-as before taking action under S. 23 (4) the Income-tax Officer is required to issue a notice to the firm, no such provision is made under R. 6B.Mr. Sastri has, however, conceded that the appellant before us had notice and was given an opportunity to satisfy the Income-tax Officer that the respective firms were genuine and not fictitious. That being so we do not think that it would be open to the appellant to contend that the order passed against him under R. 6B is invalid on the purely academic ground that R. 6B does not require notice to be issued before the registration of a firm is cancelled. If the power under R. 6B is exercised by the Income-tax Officer against a firm without giving it a notice in that behalf and without affording it an opportunity to satisfy the officer that it is a genuine firm, may be open to the firm to question the validity of the order on that grounds. We are, however, not called upon to deal with such a case in the present appeals, In this connection we may incidentally refer to the decision of this Court in Ravula Subba Rao v. Commr. of I.T., Madras, 1956 S C R 577 : ((S) AIR 1956 SC 604 ) where this Court has held that rules (2) and (6) of the rules framed under S. 59 of the Indian income-tax Act are not ultra vires the rule-making authority,12. The last argument which Mr. Sastri sought to raise before us was that the revised assessment is completely illogical, and therefore illegal, in each case inasmuch as the original assessment for the two assessment years still remains as on the basis that the firms in question are registered and the fresh assessment in respect of the escaped income for the same years is made on the basis that the said firms are not registered. Mr. Sastri says that it is not open to the Income-tax Officer to adopt such a course. If registration has been cancelled the whole of the assessment should be made on that footing; the department cannot treat the firm as registered for part of the income, and unregistered for the balance, during the same assessment years; that is Mr. Sastris grievance. We do not propose to deal with the merits of this contention. There can be no doubt that it would be open to the appellants to raise this contention in the appeals which they have filed against the fresh orders of assessment. We understand that applications have been made by the appellants in respect of the said orders of assessment under S. 27 of the Act. If that be so, the appellants may, if it is open to them to do so ventilate their grievance in the said proceedings also. We hold that this contention cannot be urged in petitions for writs of prohibition under Art. 226 of the Constitution, since they do not raise any question of jurisdiction.All that the appellants would be able to argue on this ground would be that the course adopted by the Income-tax Officer in making orders of fresh assessment is irregular and illogical and should be corrected. That is a matter concerning the merits of the orders of assessment and by no stretch of imagination can it be said to raise any question of jurisdiction under Art. 226. That is why we express no opinion on this point.13. Before we part with this case we would like to observe that Mr. Kripal for the respondent sought to raise three preliminary objections. He urged that the issue of a writ is a discretionary matter and since the High Court has refused to exercise its discretion in favour of the appellants the appeals would be virtually incompetent inasmuch as this Court would be slow to interfere with the exercise of discretion by the High Court. He also argued that the original petitions to the High Court are incompetent under Art. 226 since under the Act the appellants had an alternative effective remedy available to them in the form of appeals against the impugned orders and in fact they had filed such appeals and had also made applications under S. 27 of the Act. Mr. Kripal also contended that the High Court would have no jurisdiction to issue a writ of prohibition against the tax authorities. We do not propose to consider these objections because, as we have already indicated, we are satisfied that the view taken by the High Court on the points raised before it is right. These objections may have to be considered in future on a suitable occasion.
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was genuine, by its failure to comply with the requirements of law it had incurred the penalty of having its registration cancelled. That is the effect of the provisions of S. 23 (4). On the other hand, R. 6B deals with cases where the Income-tax Officer is satisfied that a certificate of registration has been granted under R. 4 or under R. 6A without there being a genuine firm in existence; that is to say an application for registration had been made in the name of a firm which really did not exist; andon that ground the Income-tax Officer proposes to set right the matter by cancelling the certificate which should never have born granted to the alleged firm. That being the effect of R. 6B it is impossible to accede to the argument that the provisions of this rule are inconsistent with the provisions of S. 23 (4) of the Act. If the Income-tax Officer is empowered under S. 26A read with the relevant rules to grant or refuse the request of the firm for registration, it would normally be open to him to cancel such registration if he discovers that registration had been erroneously granted to a firm which did not exist. R. 6B has been made to clarify this position and to confer on the Income-tax Officer in express and specific terms such authority to review his own decision in the matter of the registration of the firm when he discovers that his earlier decision proceeded on a wrong assumption about the existence of the firm. In our opinion, there is no difficulty in holding that R. 6B is obviously intended to carry out the purpose of the Act and since it is not inconsistent with any of the provisions of the Act its validity is not open to doubt.It is, however, urged that whereas the firm aggrieved by the order passed by the Income-tax Officer under S. 23 (4) can challenge the correctness or propriety of the order in an appeal against the final assessment order passed under S. 23, no such remedy is available to the firm whose registration is cancelled under R. 6B.We are not impressed by this argument. The validity of the rule cannot, in our opinion, be challenged merely on the ground that no appeal has been provided against the order passed under the impugned rule. It is also true that where-as before taking action under S. 23 (4) the Income-tax Officer is required to issue a notice to the firm, no such provision is made under R.being so we do not think that it would be open to the appellant to contend that the order passed against him under R. 6B is invalid on the purely academic ground that R. 6B does not require notice to be issued before the registration of a firm is cancelled. If the power under R. 6B is exercised by the Income-tax Officer against a firm without giving it a notice in that behalf and without affording it an opportunity to satisfy the officer that it is a genuine firm, may be open to the firm to question the validity of the order on that grounds. We are, however, not called upon to deal with such a case in the present appeals, In this connection we may incidentally refer to the decision of this Court in Ravula Subba Rao v. Commr. of I.T., Madras, 1956 S C R 577 : ((S) AIR 1956 SC 604 ) where this Court has held that rules (2) and (6) of the rules framed under S. 59 of the Indian income-tax Act are not ultra vires the rule-makingdo not propose to deal with the merits of this contention. There can be no doubt that it would be open to the appellants to raise this contention in the appeals which they have filed against the fresh orders of assessment. We understand that applications have been made by the appellants in respect of the said orders of assessment under S. 27 of the Act. If that be so, the appellants may, if it is open to them to do so ventilate their grievance in the said proceedings also. We hold that this contention cannot be urged in petitions for writs of prohibition under Art. 226 of the Constitution, since they do not raise any question of jurisdiction.All that the appellants would be able to argue on this ground would be that the course adopted by the Income-tax Officer in making orders of fresh assessment is irregular and illogical and should be corrected. That is a matter concerning the merits of the orders of assessment and by no stretch of imagination can it be said to raise any question of jurisdiction under Art.That is why we express no opinion on this point.Before we part with this case we would like to observe that Mr. Kripal for the respondent sought to raise three preliminary objections. He urged that the issue of a writ is a discretionary matter and since the High Court has refused to exercise its discretion in favour of the appellants the appeals would be virtually incompetent inasmuch as this Court would be slow to interfere with the exercise of discretion by the High Court. He also argued that the original petitions to the High Court are incompetent under Art. 226 since under the Act the appellants had an alternative effective remedy available to them in the form of appeals against the impugned orders and in fact they had filed such appeals and had also made applications under S. 27 of the Act. Mr. Kripal also contended that the High Court would have no jurisdiction to issue a writ of prohibition against the tax authorities. We do not propose to consider these objections because, as we have already indicated, we are satisfied that the view taken by the High Court on the points raised before it is right. These objections may have to be considered in future on a suitable occasion.
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RAJASTHAN FINANCIAL CORPORATION Vs. SHASHI BALA | 1. Leave granted. 2. This appeal arises out of the order dated 25.05.2016 passed by the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur, in S.B. Civil Misc. Appeal No. 430 of 2013 in and by which the High Court has dismissed the appeal and thereby confirming the order passed by the courts below refusing to condone the delay in filing the application under Order 9 Rule 13 CPC to set aside the decree passed in Civil Suit No. 02/2004. 3. The respondent- Shashi Bala and her husband viz. P.C. Agrawal took loan and an amount of L 65,00,000/- (Rupees sixty five lakhs) disbursed to them. Since the repayment schedule was not adhered by them, they were declared defaulters and the machineries and assets of M/s. Pankaj Cement (P) Limited was sold. When the appellant(s)-Corporation was about to take steps for recovery of the balance amount from the respondent and her husband who were the guarantors, the respondent filed the Civil Suit No. 02/2004 seeking for permanent injunction and praying that the assets of the directors/guarantors are not to be attached. 4. The Trial Court granted temporary injunction. The appellant(s) went in appeal and the said appeal came to be disposed of by the order dated 06.09.2011 directing both the parties to appear in the suit before the Trial Court with the direction to the trial Court to dispose of the matter within a period of eight months from the date of receipt of copy of the order in view of the long pendency of the matter. 5. Even when the said appeal was pending, the civil suit filed by the respondent was decided ex-parte on 19.05.2008 and the ex-parte decree was passed on 06.09.2008. The appellant-corporation filed the application on 18.05.2012 under Order 9 rule 13 CPC along with Section 5 application to condone the delay. Pointing out that the delay was not properly explained, the trial court dismissed the application. The High Court declined to interfere with the said order observing that the delay has not been properly explained. 6. We have heard Mr. S.K. Bhattacharya, learned counsel for the appellant as well as Mr. R. Mariarputham, learned senior counsel for the respondent. 7. Learned senior counsel appearing for the respondent submitted that even though the appellant-corporation was pursuing the matter before the trial Court, the appellant-corporation was not diligent in pursuing the suit. Taking through the records and proceedings of the trial Court, learned senior counsel submitted that even though the suit was decided ex-parte on 19.05.2008 and thereafter the appellant-corporation was appeared through one Ashok Saxena, the appellant-corporation did not effectively pursue the matter. Resultantly the suit was decreed ex-parte on 06.09.2008. 8. Placing reliance on judgment of this Court - Pundlik Jalam Patil (Dead) by Lrs. v. Executive Engineer, Jalgaon, Medium Project and Another 2008 (17) SCC 448 , it was submitted that the party who pleads a wrong plea for the delay does not deserve any leniency and the High Court has rightly declined to refuse the delay. 9. Per contra learned counsel appearing for the appellants has drawn our attention to the application filed before the trial Court and submitted that one K.R. Meena was incharge of the matter who had fallen sick and ultimately passed away on 13.12.2018 and, thereafter, the appellant-corporation could not effectively follow up the matter. 10. Learned counsel further submitted that when the High Court disposed of the appeal on 06.09.2011, nobody has brought to the notice of the High Court that the suit was decided ex-parte on 06.09.2008. 11. We have carefully considered the rival submissions and perused the materials on record. 12. The delay in filing application to set aside the ex-parte decree is from 06.09.2008 to 18.05.2012. Though from the records and proceedings after 19.05.2008 (the date on which the suit was decided ex-parte) it seen that one Ashok Saxena was present before the trial court, in our considered view the appellant-corporation probably did not follow up the matter, since the appeal against the grant of interim injunction was pending in the High Court. As rightly pointed out by the learned counsel for the appellant-corporation that when the High Court has disposed of the Miscellaneous Appeal, it was not brought to the notice of the High Court that the suit has been decreed ex-parte on 06.09.2008. If it was brought to the notice of the High Court, probably the High Court might have passed appropriate orders. 13. The appellant-corporation is the public sector undertaking providing money for development of industries in the State of Rajasthan. In this case inasmuch as the huge public money is involved and since the respondent has filed the suit for permanent injunction, in our considered view, the appellant-corporation is to be given opportunity to put forth their defence and contest the matter in accordance with law. However, having regard to the delay in filing the application and in the interest of justice we deem it appropriate to put the appellant-corporation on heavy terms. | 1[ds]11. We have carefully considered the rival submissions and perused the materials on record.12. The delay in filing application to set aside the ex-parte decree is from 06.09.2008 to 18.05.2012. Though from the records and proceedings after 19.05.2008 (the date on which the suit was decided ex-parte) it seen that one Ashok Saxena was present before the trial court, in our considered view the appellant-corporation probably did not follow up the matter, since the appeal against the grant of interim injunction was pending in the High Court. As rightly pointed out by the learned counsel for the appellant-corporation that when the High Court has disposed of the Miscellaneous Appeal, it was not brought to the notice of the High Court that the suit has been decreed ex-parte on 06.09.2008. If it was brought to the notice of the High Court, probably the High Court might have passed appropriate orders.13. The appellant-corporation is the public sector undertaking providing money for development of industries in the State of Rajasthan. In this case inasmuch as the huge public money is involved and since the respondent has filed the suit for permanent injunction, in our considered view, the appellant-corporation is to be given opportunity to put forth their defence and contest the matter in accordance with law. However, having regard to the delay in filing the application and in the interest of justice we deem it appropriate to put the appellant-corporation on heavy terms. | 1 | 925 | 262 | ### Instruction:
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1. Leave granted. 2. This appeal arises out of the order dated 25.05.2016 passed by the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur, in S.B. Civil Misc. Appeal No. 430 of 2013 in and by which the High Court has dismissed the appeal and thereby confirming the order passed by the courts below refusing to condone the delay in filing the application under Order 9 Rule 13 CPC to set aside the decree passed in Civil Suit No. 02/2004. 3. The respondent- Shashi Bala and her husband viz. P.C. Agrawal took loan and an amount of L 65,00,000/- (Rupees sixty five lakhs) disbursed to them. Since the repayment schedule was not adhered by them, they were declared defaulters and the machineries and assets of M/s. Pankaj Cement (P) Limited was sold. When the appellant(s)-Corporation was about to take steps for recovery of the balance amount from the respondent and her husband who were the guarantors, the respondent filed the Civil Suit No. 02/2004 seeking for permanent injunction and praying that the assets of the directors/guarantors are not to be attached. 4. The Trial Court granted temporary injunction. The appellant(s) went in appeal and the said appeal came to be disposed of by the order dated 06.09.2011 directing both the parties to appear in the suit before the Trial Court with the direction to the trial Court to dispose of the matter within a period of eight months from the date of receipt of copy of the order in view of the long pendency of the matter. 5. Even when the said appeal was pending, the civil suit filed by the respondent was decided ex-parte on 19.05.2008 and the ex-parte decree was passed on 06.09.2008. The appellant-corporation filed the application on 18.05.2012 under Order 9 rule 13 CPC along with Section 5 application to condone the delay. Pointing out that the delay was not properly explained, the trial court dismissed the application. The High Court declined to interfere with the said order observing that the delay has not been properly explained. 6. We have heard Mr. S.K. Bhattacharya, learned counsel for the appellant as well as Mr. R. Mariarputham, learned senior counsel for the respondent. 7. Learned senior counsel appearing for the respondent submitted that even though the appellant-corporation was pursuing the matter before the trial Court, the appellant-corporation was not diligent in pursuing the suit. Taking through the records and proceedings of the trial Court, learned senior counsel submitted that even though the suit was decided ex-parte on 19.05.2008 and thereafter the appellant-corporation was appeared through one Ashok Saxena, the appellant-corporation did not effectively pursue the matter. Resultantly the suit was decreed ex-parte on 06.09.2008. 8. Placing reliance on judgment of this Court - Pundlik Jalam Patil (Dead) by Lrs. v. Executive Engineer, Jalgaon, Medium Project and Another 2008 (17) SCC 448 , it was submitted that the party who pleads a wrong plea for the delay does not deserve any leniency and the High Court has rightly declined to refuse the delay. 9. Per contra learned counsel appearing for the appellants has drawn our attention to the application filed before the trial Court and submitted that one K.R. Meena was incharge of the matter who had fallen sick and ultimately passed away on 13.12.2018 and, thereafter, the appellant-corporation could not effectively follow up the matter. 10. Learned counsel further submitted that when the High Court disposed of the appeal on 06.09.2011, nobody has brought to the notice of the High Court that the suit was decided ex-parte on 06.09.2008. 11. We have carefully considered the rival submissions and perused the materials on record. 12. The delay in filing application to set aside the ex-parte decree is from 06.09.2008 to 18.05.2012. Though from the records and proceedings after 19.05.2008 (the date on which the suit was decided ex-parte) it seen that one Ashok Saxena was present before the trial court, in our considered view the appellant-corporation probably did not follow up the matter, since the appeal against the grant of interim injunction was pending in the High Court. As rightly pointed out by the learned counsel for the appellant-corporation that when the High Court has disposed of the Miscellaneous Appeal, it was not brought to the notice of the High Court that the suit has been decreed ex-parte on 06.09.2008. If it was brought to the notice of the High Court, probably the High Court might have passed appropriate orders. 13. The appellant-corporation is the public sector undertaking providing money for development of industries in the State of Rajasthan. In this case inasmuch as the huge public money is involved and since the respondent has filed the suit for permanent injunction, in our considered view, the appellant-corporation is to be given opportunity to put forth their defence and contest the matter in accordance with law. However, having regard to the delay in filing the application and in the interest of justice we deem it appropriate to put the appellant-corporation on heavy terms.
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11. We have carefully considered the rival submissions and perused the materials on record.12. The delay in filing application to set aside the ex-parte decree is from 06.09.2008 to 18.05.2012. Though from the records and proceedings after 19.05.2008 (the date on which the suit was decided ex-parte) it seen that one Ashok Saxena was present before the trial court, in our considered view the appellant-corporation probably did not follow up the matter, since the appeal against the grant of interim injunction was pending in the High Court. As rightly pointed out by the learned counsel for the appellant-corporation that when the High Court has disposed of the Miscellaneous Appeal, it was not brought to the notice of the High Court that the suit has been decreed ex-parte on 06.09.2008. If it was brought to the notice of the High Court, probably the High Court might have passed appropriate orders.13. The appellant-corporation is the public sector undertaking providing money for development of industries in the State of Rajasthan. In this case inasmuch as the huge public money is involved and since the respondent has filed the suit for permanent injunction, in our considered view, the appellant-corporation is to be given opportunity to put forth their defence and contest the matter in accordance with law. However, having regard to the delay in filing the application and in the interest of justice we deem it appropriate to put the appellant-corporation on heavy terms.
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Ramchander Vs. Ananta | but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mental cruelty’ can be drawn and they are only illustrative and not exhaustive.11. The plaintiff-husband alleged that after their marriage the defendant-wife did not like to live in the joint family and that led to shifting to separate residence and even there due to quarrels, the wife had with the respective landlords and neighbours, there was frequent shifting of residence. According to the defendant-wife the shifting was necessitated once because the husband desired so and on two other occasions due to increase in rent demanded by the landlord and absence of sufficient quantity of water to the rented premises. Neither the family members of the plaintiff nor the landlords and neighbours of the tenanted premises were examined, and as rightly held by the courts below, there is no evidence adduced by the plaintiff to substantiate this allegation. 12. The next instance alleged by the plaintiff-husband is that the defendant-wife used to abuse him as ‘Dhobi’ and the son as ‘Dhobi’s son’ and such utterances had adverse effect on them. PW1, plaintiff and PW2, the son have stated so in their testimonies. Of course the defendant-wife has specifically denied the said allegation. PW2, the child, when examined in September, 2007 in the court was 11 years old and was studying in 6th class. On the date of alleged desertion in 2003 he was only about 7 years old. Prior to 2003 he was an infant and it is unlikely he would remember in detail his early life. Even if the version of the child that the mother used to call him Dhobi’s son is accepted, such scolding is the common reaction to discipline him and it denotes lack of culture on the part of the mother. 13. It is further alleged that the defendant-wife was reluctant to do any household work and was not cooking food for the plaintiff and the child which necessitated the bringing of food from outside, amounting to mental cruelty. Being working mother, she could not spare enough time to be with the child resulting in the feeling of not being cared for. In this context it is relevant to point out that the child was residing with his father since alleged separation in 2003. The expression of the child is due to attitudinal problem and it can be addressed to. The trial court placed much reliance on the testimony of the child and the High Court termed it as misplaced. The learned counsel for the appellant found fault with the High Court in not placing reliance on the child testimony. We are not able to appreciate this contention. In the facts of the case we are of the considered view that the High Court has rightly done so. 14. The next instance is the allegation made by the wife in the case filed by her under Section 498-A of IPC against the husband. Admittedly the case was withdrawn by the wife and she continued to live with the husband. In fact the High Court has observed in the impugned judgment that though the date of filing of the criminal complaint is not mentioned in the plaint, from the sequence of narration of events therein it appears to have been filed prior to the birth of the child. The aberration on the part of the wife has been condoned by the husband by resuming cohabitation and they continued to live together till the date of alleged separation in 2003.15. The last instance of cruelty alleged by the husband is the allegation made by the wife that he has been involved in an extra marital affair with the daily rated mazdoor lady working under him. It is true that the defendant-wife has named the said lady with whom her husband allegedly was having an affair. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Court. The conduct of the wife that had been complained of appears to be not so grave and weighty that it can be treated to be more serious than ordinary wear and tear of married life.16. What remains to be considered is the ground of desertion alleged by the plaintiff-husband, it is averred that the defendant-wife left the company of the plaintiff in March, 2003 and date is not mentioned. The child was only 7 years old in 2003 and his testimony in this regard will not advance the case of the plaintiff. DWs 2 to 4 have testified that they had seen the plaintiff and the defendant together as spouses even during 2005. It is pointed out that there is no denial against such contention in cross examination. It is relevant to point out that DW2 is working in Marine Department and DW3 and DW4 are working in the Municipal Council and there is no reason for them to falsely depose against the plaintiff. The trial court has not indicated with any clarity in its judgment as to how the testimonies of the above witnesses were not found reliable by it. The High Court on going through their testimonies has concluded that it does not find their evidence unworthy of credence. We are in agreement with the said view expressed by the High Court. Resultantly the ground of desertion alleged is also not established.17. We also find no merit in the contention of the learned counsel for the appellant that the marriage between the plaintiff and defendant has irretrievably broken down. | 0[ds]It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mentalcan be drawn and they are only illustrative and not exhaustive.11. The plaintiff-husband alleged that after their marriage the defendant-wife did not like to live in the joint family and that led to shifting to separate residence and even there due to quarrels, the wife had with the respective landlords and neighbours, there was frequent shifting of residence. According to the defendant-wife the shifting was necessitated once because the husband desired so and on two other occasions due to increase in rent demanded by the landlord and absence of sufficient quantity of water to the rented premises. Neither the family members of the plaintiff nor the landlords and neighbours of the tenanted premises were examined, and as rightly held by the courts below, there is no evidence adduced by the plaintiff to substantiate this allegation.The next instance is the allegation made by the wife in the case filed by her under Section 498-A of IPC against the husband. Admittedly the case was withdrawn by the wife and she continued to live with the husband. In fact the High Court has observed in the impugned judgment that though the date of filing of the criminal complaint is not mentioned in the plaint, from the sequence of narration of events therein it appears to have been filed prior to the birth of the child. The aberration on the part of the wife has been condoned by the husband by resuming cohabitation and they continued to live together till the date of alleged separation in 2003.15. The last instance of cruelty alleged by the husband is the allegation made by the wife that he has been involved in an extra marital affair with the daily rated mazdoor lady working under him. It is true that the defendant-wife has named the said lady with whom her husband allegedly was having an affair. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Court. The conduct of the wife that had been complained of appears to be not so grave and weighty that it can be treated to be more serious than ordinary wear and tear of married life.16. What remains to be considered is the ground of desertion alleged by the plaintiff-husband, it is averred that the defendant-wife left the company of the plaintiff in March, 2003 and date is not mentioned. The child was only 7 years old in 2003 and his testimony in this regard will not advance the case of the plaintiff. DWs 2 to 4 have testified that they had seen the plaintiff and the defendant together as spouses even during 2005. It is pointed out that there is no denial against such contention in cross examination. It is relevant to point out that DW2 is working in Marine Department and DW3 and DW4 are working in the Municipal Council and there is no reason for them to falsely depose against the plaintiff. The trial court has not indicated with any clarity in its judgment as to how the testimonies of the above witnesses were not found reliable by it. The High Court on going through their testimonies has concluded that it does not find their evidence unworthy of credence. We are in agreement with the said view expressed by the High Court. Resultantly the ground of desertion alleged is also not established.17. We also find no merit in the contention of the learned counsel for the appellant that the marriage between the plaintiff and defendant has irretrievably broken down. | 0 | 2,224 | 737 | ### 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:
but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mental cruelty’ can be drawn and they are only illustrative and not exhaustive.11. The plaintiff-husband alleged that after their marriage the defendant-wife did not like to live in the joint family and that led to shifting to separate residence and even there due to quarrels, the wife had with the respective landlords and neighbours, there was frequent shifting of residence. According to the defendant-wife the shifting was necessitated once because the husband desired so and on two other occasions due to increase in rent demanded by the landlord and absence of sufficient quantity of water to the rented premises. Neither the family members of the plaintiff nor the landlords and neighbours of the tenanted premises were examined, and as rightly held by the courts below, there is no evidence adduced by the plaintiff to substantiate this allegation. 12. The next instance alleged by the plaintiff-husband is that the defendant-wife used to abuse him as ‘Dhobi’ and the son as ‘Dhobi’s son’ and such utterances had adverse effect on them. PW1, plaintiff and PW2, the son have stated so in their testimonies. Of course the defendant-wife has specifically denied the said allegation. PW2, the child, when examined in September, 2007 in the court was 11 years old and was studying in 6th class. On the date of alleged desertion in 2003 he was only about 7 years old. Prior to 2003 he was an infant and it is unlikely he would remember in detail his early life. Even if the version of the child that the mother used to call him Dhobi’s son is accepted, such scolding is the common reaction to discipline him and it denotes lack of culture on the part of the mother. 13. It is further alleged that the defendant-wife was reluctant to do any household work and was not cooking food for the plaintiff and the child which necessitated the bringing of food from outside, amounting to mental cruelty. Being working mother, she could not spare enough time to be with the child resulting in the feeling of not being cared for. In this context it is relevant to point out that the child was residing with his father since alleged separation in 2003. The expression of the child is due to attitudinal problem and it can be addressed to. The trial court placed much reliance on the testimony of the child and the High Court termed it as misplaced. The learned counsel for the appellant found fault with the High Court in not placing reliance on the child testimony. We are not able to appreciate this contention. In the facts of the case we are of the considered view that the High Court has rightly done so. 14. The next instance is the allegation made by the wife in the case filed by her under Section 498-A of IPC against the husband. Admittedly the case was withdrawn by the wife and she continued to live with the husband. In fact the High Court has observed in the impugned judgment that though the date of filing of the criminal complaint is not mentioned in the plaint, from the sequence of narration of events therein it appears to have been filed prior to the birth of the child. The aberration on the part of the wife has been condoned by the husband by resuming cohabitation and they continued to live together till the date of alleged separation in 2003.15. The last instance of cruelty alleged by the husband is the allegation made by the wife that he has been involved in an extra marital affair with the daily rated mazdoor lady working under him. It is true that the defendant-wife has named the said lady with whom her husband allegedly was having an affair. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Court. The conduct of the wife that had been complained of appears to be not so grave and weighty that it can be treated to be more serious than ordinary wear and tear of married life.16. What remains to be considered is the ground of desertion alleged by the plaintiff-husband, it is averred that the defendant-wife left the company of the plaintiff in March, 2003 and date is not mentioned. The child was only 7 years old in 2003 and his testimony in this regard will not advance the case of the plaintiff. DWs 2 to 4 have testified that they had seen the plaintiff and the defendant together as spouses even during 2005. It is pointed out that there is no denial against such contention in cross examination. It is relevant to point out that DW2 is working in Marine Department and DW3 and DW4 are working in the Municipal Council and there is no reason for them to falsely depose against the plaintiff. The trial court has not indicated with any clarity in its judgment as to how the testimonies of the above witnesses were not found reliable by it. The High Court on going through their testimonies has concluded that it does not find their evidence unworthy of credence. We are in agreement with the said view expressed by the High Court. Resultantly the ground of desertion alleged is also not established.17. We also find no merit in the contention of the learned counsel for the appellant that the marriage between the plaintiff and defendant has irretrievably broken down.
### Response:
0
### Explanation:
It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mentalcan be drawn and they are only illustrative and not exhaustive.11. The plaintiff-husband alleged that after their marriage the defendant-wife did not like to live in the joint family and that led to shifting to separate residence and even there due to quarrels, the wife had with the respective landlords and neighbours, there was frequent shifting of residence. According to the defendant-wife the shifting was necessitated once because the husband desired so and on two other occasions due to increase in rent demanded by the landlord and absence of sufficient quantity of water to the rented premises. Neither the family members of the plaintiff nor the landlords and neighbours of the tenanted premises were examined, and as rightly held by the courts below, there is no evidence adduced by the plaintiff to substantiate this allegation.The next instance is the allegation made by the wife in the case filed by her under Section 498-A of IPC against the husband. Admittedly the case was withdrawn by the wife and she continued to live with the husband. In fact the High Court has observed in the impugned judgment that though the date of filing of the criminal complaint is not mentioned in the plaint, from the sequence of narration of events therein it appears to have been filed prior to the birth of the child. The aberration on the part of the wife has been condoned by the husband by resuming cohabitation and they continued to live together till the date of alleged separation in 2003.15. The last instance of cruelty alleged by the husband is the allegation made by the wife that he has been involved in an extra marital affair with the daily rated mazdoor lady working under him. It is true that the defendant-wife has named the said lady with whom her husband allegedly was having an affair. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Court. The conduct of the wife that had been complained of appears to be not so grave and weighty that it can be treated to be more serious than ordinary wear and tear of married life.16. What remains to be considered is the ground of desertion alleged by the plaintiff-husband, it is averred that the defendant-wife left the company of the plaintiff in March, 2003 and date is not mentioned. The child was only 7 years old in 2003 and his testimony in this regard will not advance the case of the plaintiff. DWs 2 to 4 have testified that they had seen the plaintiff and the defendant together as spouses even during 2005. It is pointed out that there is no denial against such contention in cross examination. It is relevant to point out that DW2 is working in Marine Department and DW3 and DW4 are working in the Municipal Council and there is no reason for them to falsely depose against the plaintiff. The trial court has not indicated with any clarity in its judgment as to how the testimonies of the above witnesses were not found reliable by it. The High Court on going through their testimonies has concluded that it does not find their evidence unworthy of credence. We are in agreement with the said view expressed by the High Court. Resultantly the ground of desertion alleged is also not established.17. We also find no merit in the contention of the learned counsel for the appellant that the marriage between the plaintiff and defendant has irretrievably broken down.
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Smt. Juthika Bhattacharya Vs. The State of Madhya Pradesh and Ors. | be understood in a mandatory sense, so that no person who does not hold a post-graduate degree and possess the requisite experience would be eligible for being appointed as the Principal of a higher secondary school.As regards the second limb of the argument that since the appellant holds the qualification of B.A.B.T., she ought to be considered as holding a post-graduate degree, regard must again be had to the context in which the particular expression occurs and the purpose of the prescription. It is not inconceivable that the expression post-graduate degree may in a broad and general sense mean in a given context any degree obtained after graduation and which a graduate alone can obtain. But that is not the sense in which the Memorandum uses the particular expression. By post-graduate degree is meant a Masters degree like the M.A. or M.Sc. and not a Bachelors degree like the B.T. In other words, the expression connotes the successful completion of a course of studies at a higher level in any speciality, after the acquisition of a basic qualification at the graduate level. The B.T. course of studies, we are informed, is open only to graduates and in dictionary manner of speaking, the degree of Bachelor of Teaching may be said to be a post-graduate degree in the sense that the degree is obtainable only after graduation. That is the sense in which the word post is used in expressions like post-nuptial, post-prandial, post-operative, post-mortem and so forth. In these expressions, post means simply after, the emphasis being on the happening of an event after a certain point of time, But the express ion postgraduate degree has acquired in the educational world a special significance, a technical content. A Bachelors degree like the B.T., or the LL.B is not considered to be a post-graduate degree even though those degrees can be taken only after graduation. In the refined and elegant world of education, it is the holder of a Masters degree like the M.Ed. or the LL.M. who earns , recognition as the holder of a post-graduate degree. That is the sense in which the expression is used in the Memorandum. Mr. Sen says that in some foreign universities even a Bachelors degree, obtainable only after graduation, is considered as a post-graduate qualification. We are concerned with the interpretation of an indigenous instrument and must have regard for local parlance and understanding. Such awareness and understanding compel the construction fo r which we have indicated our preference. Indeed, everyone concerned understood the rule in the same sense as is evident from the permission sought by the appellant herself to appear for the M.A. examination. She asked for that permission in order to qualify for the Principals post.The appellant made a serious grievance that she was discriminated against in comparison with several others who have been appointed as principals in higher secondary schools run by the Government. On the record is a statement (Annexure P-VIII) which does show that in schools which were from their inception run by the Government, several teachers were appointed as Principals though they did not hold the Masters degree. Mr. Panjwani appearing on behalf of the state Government has given a valid explanation for this differentiation. Speaking generally, in schools which were always under Government control, a teacher could aspire to become a Principal only after a long period of service. Most of the 19 teachers whose names appear in Annexure P-VIII had served for about 20 years before being appointed as principals. On the other hand, private schools like the one in which the appellant was working as a Head Mistress or a principal did not follow any such convention and appointments to the post of the head of the school were made therein directly and straightway without insistence on any worth while experience of teaching. The appellant herself was appointed to the post of a Head Mistress directly in the year 1958. The state Government had therefore a valid reason for prescribing comparatively stringent qualifications for the post of Principal in schools taken over by it from private institutions. It may be added that in its own schools, the Government appointed persons holding merely the qualification of B.A.B.T., to the post of Principal by reason of the long and valuable experience gained by them as teachers and not on the supposition that they held a post-graduate degree. Reliance was placed by the appellants counsel on Regulations of the Board of Secondary Education, Madhya Pradesh, in support of his submission that the qualifications of the teaching staff in any institution have to be the same as prescribed for the corresponding staff in Government institutions. But these Regulations have no relevance in the present case. They were framed under section 28(4) of the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965. Regulation 61 and the allied regulations on which reliance is placed show that they were framed in order to prescribe conditions with which an educational institution had to comply before seeking recognition of the Board of Secondary Education. The various conditions prescribed by the Regulations do not constitute conditions of service and can create no rights and obligations, contractual or statutory, as between a school and its employees whether the school is a Government institution non-Government institution.Before concluding we would like to say that the State Government ought to consider the request which was made by the appellant long since for permission to appear for the final M.A. Examination. She has already passed Part I of that examination with Political Science as her subject but she was refused permission to complete the course on the ground that she had not yet completed one years service under the State Government. That objection can no longer hold good. We are confident that the proceedings taken by the appellant for vindicating her rights will not be allowed to stand in her way if and when she is found fit and qualified for further promotion in accordance with the relevant rules. 5. | 0[ds]On the other hand, private schools like the one in which the appellant was working as a Head Mistress or a principal did not follow any such convention and appointments to the post of the head of the school were made therein directly and straightway without insistence on any worth while experience of teaching. The appellant herself was appointed to the post of a Head Mistress directly in the year 1958. The state Government had therefore a valid reason for prescribing comparatively stringent qualifications for the post of Principal in schools taken over by it from private institutions. It may be added that in its own schools, the Government appointed persons holding merely the qualification of B.A.B.T., to the post of Principal by reason of the long and valuable experience gained by them as teachers and not on the supposition that they held a post-graduate degree. Reliance was placed by the appellants counsel on Regulations of the Board of Secondary Education, Madhya Pradesh, in support of his submission that the qualifications of the teaching staff in any institution have to be the same as prescribed for the corresponding staff in Government institutions. But these Regulations have no relevance in the present case. They were framed under section 28(4) of the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965. Regulation 61 and the allied regulations on which reliance is placed show that they were framed in order to prescribe conditions with which an educational institution had to comply before seeking recognition of the Board of Secondary Education. The various conditions prescribed by the Regulations do not constitute conditions of service and can create no rights and obligations, contractual or statutory, as between a school and its employees whether the school is a Government institution non-Government institution.Before concluding we would like to say that the State Government ought to consider the request which was made by the appellant long since for permission to appear for the final M.A. Examination. She has already passed Part I of that examination with Political Science as her subject but she was refused permission to complete the course on the ground that she had not yet completed one years service under the State Government. That objection can no longer hold good. We are confident that the proceedings taken by the appellant for vindicating her rights will not be allowed to stand in her way if and when she is found fit and qualified for further promotion in accordance with the relevant rules. | 0 | 2,298 | 441 | ### 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:
be understood in a mandatory sense, so that no person who does not hold a post-graduate degree and possess the requisite experience would be eligible for being appointed as the Principal of a higher secondary school.As regards the second limb of the argument that since the appellant holds the qualification of B.A.B.T., she ought to be considered as holding a post-graduate degree, regard must again be had to the context in which the particular expression occurs and the purpose of the prescription. It is not inconceivable that the expression post-graduate degree may in a broad and general sense mean in a given context any degree obtained after graduation and which a graduate alone can obtain. But that is not the sense in which the Memorandum uses the particular expression. By post-graduate degree is meant a Masters degree like the M.A. or M.Sc. and not a Bachelors degree like the B.T. In other words, the expression connotes the successful completion of a course of studies at a higher level in any speciality, after the acquisition of a basic qualification at the graduate level. The B.T. course of studies, we are informed, is open only to graduates and in dictionary manner of speaking, the degree of Bachelor of Teaching may be said to be a post-graduate degree in the sense that the degree is obtainable only after graduation. That is the sense in which the word post is used in expressions like post-nuptial, post-prandial, post-operative, post-mortem and so forth. In these expressions, post means simply after, the emphasis being on the happening of an event after a certain point of time, But the express ion postgraduate degree has acquired in the educational world a special significance, a technical content. A Bachelors degree like the B.T., or the LL.B is not considered to be a post-graduate degree even though those degrees can be taken only after graduation. In the refined and elegant world of education, it is the holder of a Masters degree like the M.Ed. or the LL.M. who earns , recognition as the holder of a post-graduate degree. That is the sense in which the expression is used in the Memorandum. Mr. Sen says that in some foreign universities even a Bachelors degree, obtainable only after graduation, is considered as a post-graduate qualification. We are concerned with the interpretation of an indigenous instrument and must have regard for local parlance and understanding. Such awareness and understanding compel the construction fo r which we have indicated our preference. Indeed, everyone concerned understood the rule in the same sense as is evident from the permission sought by the appellant herself to appear for the M.A. examination. She asked for that permission in order to qualify for the Principals post.The appellant made a serious grievance that she was discriminated against in comparison with several others who have been appointed as principals in higher secondary schools run by the Government. On the record is a statement (Annexure P-VIII) which does show that in schools which were from their inception run by the Government, several teachers were appointed as Principals though they did not hold the Masters degree. Mr. Panjwani appearing on behalf of the state Government has given a valid explanation for this differentiation. Speaking generally, in schools which were always under Government control, a teacher could aspire to become a Principal only after a long period of service. Most of the 19 teachers whose names appear in Annexure P-VIII had served for about 20 years before being appointed as principals. On the other hand, private schools like the one in which the appellant was working as a Head Mistress or a principal did not follow any such convention and appointments to the post of the head of the school were made therein directly and straightway without insistence on any worth while experience of teaching. The appellant herself was appointed to the post of a Head Mistress directly in the year 1958. The state Government had therefore a valid reason for prescribing comparatively stringent qualifications for the post of Principal in schools taken over by it from private institutions. It may be added that in its own schools, the Government appointed persons holding merely the qualification of B.A.B.T., to the post of Principal by reason of the long and valuable experience gained by them as teachers and not on the supposition that they held a post-graduate degree. Reliance was placed by the appellants counsel on Regulations of the Board of Secondary Education, Madhya Pradesh, in support of his submission that the qualifications of the teaching staff in any institution have to be the same as prescribed for the corresponding staff in Government institutions. But these Regulations have no relevance in the present case. They were framed under section 28(4) of the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965. Regulation 61 and the allied regulations on which reliance is placed show that they were framed in order to prescribe conditions with which an educational institution had to comply before seeking recognition of the Board of Secondary Education. The various conditions prescribed by the Regulations do not constitute conditions of service and can create no rights and obligations, contractual or statutory, as between a school and its employees whether the school is a Government institution non-Government institution.Before concluding we would like to say that the State Government ought to consider the request which was made by the appellant long since for permission to appear for the final M.A. Examination. She has already passed Part I of that examination with Political Science as her subject but she was refused permission to complete the course on the ground that she had not yet completed one years service under the State Government. That objection can no longer hold good. We are confident that the proceedings taken by the appellant for vindicating her rights will not be allowed to stand in her way if and when she is found fit and qualified for further promotion in accordance with the relevant rules. 5.
### Response:
0
### Explanation:
On the other hand, private schools like the one in which the appellant was working as a Head Mistress or a principal did not follow any such convention and appointments to the post of the head of the school were made therein directly and straightway without insistence on any worth while experience of teaching. The appellant herself was appointed to the post of a Head Mistress directly in the year 1958. The state Government had therefore a valid reason for prescribing comparatively stringent qualifications for the post of Principal in schools taken over by it from private institutions. It may be added that in its own schools, the Government appointed persons holding merely the qualification of B.A.B.T., to the post of Principal by reason of the long and valuable experience gained by them as teachers and not on the supposition that they held a post-graduate degree. Reliance was placed by the appellants counsel on Regulations of the Board of Secondary Education, Madhya Pradesh, in support of his submission that the qualifications of the teaching staff in any institution have to be the same as prescribed for the corresponding staff in Government institutions. But these Regulations have no relevance in the present case. They were framed under section 28(4) of the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965. Regulation 61 and the allied regulations on which reliance is placed show that they were framed in order to prescribe conditions with which an educational institution had to comply before seeking recognition of the Board of Secondary Education. The various conditions prescribed by the Regulations do not constitute conditions of service and can create no rights and obligations, contractual or statutory, as between a school and its employees whether the school is a Government institution non-Government institution.Before concluding we would like to say that the State Government ought to consider the request which was made by the appellant long since for permission to appear for the final M.A. Examination. She has already passed Part I of that examination with Political Science as her subject but she was refused permission to complete the course on the ground that she had not yet completed one years service under the State Government. That objection can no longer hold good. We are confident that the proceedings taken by the appellant for vindicating her rights will not be allowed to stand in her way if and when she is found fit and qualified for further promotion in accordance with the relevant rules.
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Burn Standard Company Ltd. And Anr Vs. Union Of India And Others | learned Single Judge, set aside his judgment and dismissed the writ petition of the appellant––Petitioner. The Division Bench allowed the appeal in the following words: “Admittedly, in this case, the cost of wagon as a whole has not been mentioned in the agreement and we feel that the cost of normal price should include cost of construction and furthermore, when sale is the charge and the same under charging Section of the said Act would mean actual price of the goods viz., wagon as a whole, so the value of a wagon as a whole, will form part of the relevant and necessary assessable value under Section 4 of the said Act, as the manufacturing cost of a complete wagon cannot be conceived of without taking into account or consideration the cost of free supply items .....We hold that the valuation cost of the free supply items should be included in the manufacturing cost of wagons. We think that Section 4(1)(a) of the said Act applies in this case and as such, the valuation of excisable goods will be charged or will take place when manufacture takes place. Thus, we also find and hold that while determining the valuation of wagons for charging the duty, the Revenue Authorities had acted duly and with justification, in adding the cost of free supply items under the provisions of the said Act as indicated above, the more so when, under the agreement in this case, the said petitioners were and are required to manufacture and supply completed wagons, in which the free supply items were and are required to be fixed at the time of manufacture. There cannot be any doubt that without fixing the free supply items, the production and manufacture of a wagon would not be effectively completed. The manufacture of a complete wagon thus takes place as soon as or as and when the free supply items are fitted and fixed by the said petitioners and with such manufacture, the process of manufacture would be complete under Section 2(f) of the said Act and the liability to duty will also be attracted. We hold that the value of the manufactured goods must be determined at the factory gate i.e. at the stage when the manufactured goods here in this case wagons, leave the factory.” 5. This appeal, against the judgment of the High Court, via special leave petition is by M/s. Burn Standard Company Limited. 6. The relevant parts of Sections 3 and 4 of the Act are reproduced hereinafter: “3. Duties specified in the First Schedule to be levied.—(1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in (India)...... 4. Valuation of excisable goods for purposes of charging of duty of excise.—(1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this Section, be deemed to be–– (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: (b) where the normal price of such goods is not ascertainable for the reason that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed.” 7. Section 3 of the Act provides for levy of the duty of excise. It is a levy on goods produced or manufactured in India. Section 4 of the Act lays down the measure by reference to which the duty of excise is to be assessed. The duty of excise is linked and chargeable with reference to the value of the excisable goods and the value is further defined in express terms by the said Section. In every case the fundamental criterion for computing the value of an excisable article is the normal price at which the excisable article or an article of the like kind and quality is sold or is capable of being sold by the manufacturer. It is not disputed that the appellants are manufacturers of wagons. What comes down from the assembly-line of the appellant’s factory is a complete wagon and as such the appellant being manufacturer of wagons, is liable to pay duty of excise on the value of a complete wagon. The “free supply items” like wheel-sets etc. in the process of manufacturing become part of the complete wagon and loose their identity. It hardly matters how and in what manner the components of the wagon are procured by the manufacturer, so long as the appellant is manufacturing and producing the goods called “wagons” it is liable to pay duty of excise on the normal value of the wagon. In Empire Industries Limited and others v. Union of India and others, (1985)3S.C.C. 314, this Court while interpreting Sections 3 and 4 of the Act held as under: “The fact that the petitioners are not the owners of the end product is irrelevant. Taxable event is manufacture––– –– ––not ownership.” 8. In M/s. Ujagar Prints and others v. Union of India and others, (1989) 3 S.C.C. 488. M.N. Venkatachaliah, J. speaking for the Court observed as under: “Duties of excise are imposed on the production or manufacture of goods and are levied upon the manufacturer or the producer in respect of the commodity taxed. The question whether the producer or the manufacturer is or is not the owner of the goods is not determinative of the liability”. 9. We, therefore, cannot accept the contention of the learned counsel for the appellant that the value of the “free supply items” should not be included in the assessable value of the wagons manufactured by the appellant. | 0[ds]7. Section 3 of the Act provides for levy of the duty of excise. It is a levy on goods produced or manufactured in India. Section 4 of the Act lays down the measure by reference to which the duty of excise is to be assessed. The duty of excise is linked and chargeable with reference to the value of the excisable goods and the value is further defined in express terms by the said Section. In every case the fundamental criterion for computing the value of an excisable article is the normal price at which the excisable article or an article of the like kind and quality is sold or is capable of being sold by the manufacturer. It is not disputed that the appellants are manufacturers of wagons. What comes down from the assembly-line of thefactory is a complete wagon and as such the appellant being manufacturer of wagons, is liable to pay duty of excise on the value of a complete wagon. Thelike wheel-sets etc. in the process of manufacturing become part of the complete wagon and loose their identity. It hardly matters how and in what manner the components of the wagon are procured by the manufacturer, so long as the appellant is manufacturing and producing the goods calledit is liable to pay duty of excise on the normal value of the wagon.We, therefore, cannot accept the contention of the learned counsel for the appellant that the value of theshould not bein the assessable value of the wagons manufactured by the appellant. | 0 | 1,699 | 276 | ### 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:
learned Single Judge, set aside his judgment and dismissed the writ petition of the appellant––Petitioner. The Division Bench allowed the appeal in the following words: “Admittedly, in this case, the cost of wagon as a whole has not been mentioned in the agreement and we feel that the cost of normal price should include cost of construction and furthermore, when sale is the charge and the same under charging Section of the said Act would mean actual price of the goods viz., wagon as a whole, so the value of a wagon as a whole, will form part of the relevant and necessary assessable value under Section 4 of the said Act, as the manufacturing cost of a complete wagon cannot be conceived of without taking into account or consideration the cost of free supply items .....We hold that the valuation cost of the free supply items should be included in the manufacturing cost of wagons. We think that Section 4(1)(a) of the said Act applies in this case and as such, the valuation of excisable goods will be charged or will take place when manufacture takes place. Thus, we also find and hold that while determining the valuation of wagons for charging the duty, the Revenue Authorities had acted duly and with justification, in adding the cost of free supply items under the provisions of the said Act as indicated above, the more so when, under the agreement in this case, the said petitioners were and are required to manufacture and supply completed wagons, in which the free supply items were and are required to be fixed at the time of manufacture. There cannot be any doubt that without fixing the free supply items, the production and manufacture of a wagon would not be effectively completed. The manufacture of a complete wagon thus takes place as soon as or as and when the free supply items are fitted and fixed by the said petitioners and with such manufacture, the process of manufacture would be complete under Section 2(f) of the said Act and the liability to duty will also be attracted. We hold that the value of the manufactured goods must be determined at the factory gate i.e. at the stage when the manufactured goods here in this case wagons, leave the factory.” 5. This appeal, against the judgment of the High Court, via special leave petition is by M/s. Burn Standard Company Limited. 6. The relevant parts of Sections 3 and 4 of the Act are reproduced hereinafter: “3. Duties specified in the First Schedule to be levied.—(1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in (India)...... 4. Valuation of excisable goods for purposes of charging of duty of excise.—(1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this Section, be deemed to be–– (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: (b) where the normal price of such goods is not ascertainable for the reason that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed.” 7. Section 3 of the Act provides for levy of the duty of excise. It is a levy on goods produced or manufactured in India. Section 4 of the Act lays down the measure by reference to which the duty of excise is to be assessed. The duty of excise is linked and chargeable with reference to the value of the excisable goods and the value is further defined in express terms by the said Section. In every case the fundamental criterion for computing the value of an excisable article is the normal price at which the excisable article or an article of the like kind and quality is sold or is capable of being sold by the manufacturer. It is not disputed that the appellants are manufacturers of wagons. What comes down from the assembly-line of the appellant’s factory is a complete wagon and as such the appellant being manufacturer of wagons, is liable to pay duty of excise on the value of a complete wagon. The “free supply items” like wheel-sets etc. in the process of manufacturing become part of the complete wagon and loose their identity. It hardly matters how and in what manner the components of the wagon are procured by the manufacturer, so long as the appellant is manufacturing and producing the goods called “wagons” it is liable to pay duty of excise on the normal value of the wagon. In Empire Industries Limited and others v. Union of India and others, (1985)3S.C.C. 314, this Court while interpreting Sections 3 and 4 of the Act held as under: “The fact that the petitioners are not the owners of the end product is irrelevant. Taxable event is manufacture––– –– ––not ownership.” 8. In M/s. Ujagar Prints and others v. Union of India and others, (1989) 3 S.C.C. 488. M.N. Venkatachaliah, J. speaking for the Court observed as under: “Duties of excise are imposed on the production or manufacture of goods and are levied upon the manufacturer or the producer in respect of the commodity taxed. The question whether the producer or the manufacturer is or is not the owner of the goods is not determinative of the liability”. 9. We, therefore, cannot accept the contention of the learned counsel for the appellant that the value of the “free supply items” should not be included in the assessable value of the wagons manufactured by the appellant.
### Response:
0
### Explanation:
7. Section 3 of the Act provides for levy of the duty of excise. It is a levy on goods produced or manufactured in India. Section 4 of the Act lays down the measure by reference to which the duty of excise is to be assessed. The duty of excise is linked and chargeable with reference to the value of the excisable goods and the value is further defined in express terms by the said Section. In every case the fundamental criterion for computing the value of an excisable article is the normal price at which the excisable article or an article of the like kind and quality is sold or is capable of being sold by the manufacturer. It is not disputed that the appellants are manufacturers of wagons. What comes down from the assembly-line of thefactory is a complete wagon and as such the appellant being manufacturer of wagons, is liable to pay duty of excise on the value of a complete wagon. Thelike wheel-sets etc. in the process of manufacturing become part of the complete wagon and loose their identity. It hardly matters how and in what manner the components of the wagon are procured by the manufacturer, so long as the appellant is manufacturing and producing the goods calledit is liable to pay duty of excise on the normal value of the wagon.We, therefore, cannot accept the contention of the learned counsel for the appellant that the value of theshould not bein the assessable value of the wagons manufactured by the appellant.
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State of Bihar Vs. Sri Rajendra Agrawalla | No. 475 of 1992. The learned Judge by the impugned order having quashed the cognizance taken by the Magistrate so far as the respondent is concerned, the State has approached this Court. 4. Mr. B. B. Singh, learned counsel appearing for the State, contended that the High Court exceeded its jurisdiction under Section 482 of the Code of Criminal Procedure by trying to appreciate the evidence on record and thereafter recording the finding that no prima facie case has been made out. Mr. Singh further contended that notwithstanding the well recognised principle enunciated by this Court that the power under Section 482 of the Code of Criminal Procedure should be exercised very sparingly and cautiously and only when the Court comes to the conclusion that there has been an abuse of the process of the Court, but in the case in hand the learned Judge examined the legality of the order of cognizance as a Court of appeal and as such the order of the High Court is unsustainable in law. Mr. U. R. Lalit, learned senior counsel appearing for the respondent on the other hand contended that the High Court having examined the material and having come to the conclusion that the materials on record do not make out an offence under Section 414 of the Indian Penal Code, the Court was fully justified in quashing the order of cognizance and the same order should not be interfered by this Court. 5. It has been held by this Court in several cases that the inherent power of the court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the First Information Report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out. In a recent judgment of this Court to which one of us (Hon. K. Ramaswamy, J.) was a member it has been held, following the earlier decision in Rupan Deol Bajaj v. Kanwar Pal Singh Gill "It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/ complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is concluded and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognisible offence is made out no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence - the court may embark upon the consideration thereof and exercise the power. "When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When the investigation officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise of inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power." 6. Bearing in mind the aforesaid parameters if the charge-sheet and the FIR filed in the case in hand are examined and the impugned order of the High Court is tested, the conclusion becomes irresistible that the High Court exceeded its jurisdiction by trying to appreciate the evidence and coming to a conclusion that no offence is made out. On examining the material on record and the impugned judgment of the High Court we are of the considered opinion that the High Court was wholly unjustified in invoking its inherent power under Section 482 of the Code of Criminal Procedure to quash the cognizance taken inasmuch as the allegation in the FIR and material referred to in the charge-sheet do make out an offence under Section 414 of the Indian Penal Code, so far as the respondent is concerned. | 1[ds]When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When the investigation officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise of inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power.Bearing in mind the aforesaid parameters if the charge-sheet and the FIR filed in the case in hand are examined and the impugned order of the High Court is tested, the conclusion becomes irresistible that the High Court exceeded its jurisdiction by trying to appreciate the evidence and coming to a conclusion that no offence is made out. On examining the material on record and the impugned judgment of the High Court we are of the considered opinion that the High Court was wholly unjustified in invoking its inherent power under Section 482 of the Code of Criminal Procedure to quash the cognizance taken inasmuch as the allegation in the FIR and material referred to in the charge-sheet do make out an offence under Section 414 of the Indian Penal Code, so far as the respondent is concerned. | 1 | 1,463 | 301 | ### 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. 475 of 1992. The learned Judge by the impugned order having quashed the cognizance taken by the Magistrate so far as the respondent is concerned, the State has approached this Court. 4. Mr. B. B. Singh, learned counsel appearing for the State, contended that the High Court exceeded its jurisdiction under Section 482 of the Code of Criminal Procedure by trying to appreciate the evidence on record and thereafter recording the finding that no prima facie case has been made out. Mr. Singh further contended that notwithstanding the well recognised principle enunciated by this Court that the power under Section 482 of the Code of Criminal Procedure should be exercised very sparingly and cautiously and only when the Court comes to the conclusion that there has been an abuse of the process of the Court, but in the case in hand the learned Judge examined the legality of the order of cognizance as a Court of appeal and as such the order of the High Court is unsustainable in law. Mr. U. R. Lalit, learned senior counsel appearing for the respondent on the other hand contended that the High Court having examined the material and having come to the conclusion that the materials on record do not make out an offence under Section 414 of the Indian Penal Code, the Court was fully justified in quashing the order of cognizance and the same order should not be interfered by this Court. 5. It has been held by this Court in several cases that the inherent power of the court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the First Information Report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out. In a recent judgment of this Court to which one of us (Hon. K. Ramaswamy, J.) was a member it has been held, following the earlier decision in Rupan Deol Bajaj v. Kanwar Pal Singh Gill "It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/ complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is concluded and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognisible offence is made out no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence - the court may embark upon the consideration thereof and exercise the power. "When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When the investigation officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise of inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power." 6. Bearing in mind the aforesaid parameters if the charge-sheet and the FIR filed in the case in hand are examined and the impugned order of the High Court is tested, the conclusion becomes irresistible that the High Court exceeded its jurisdiction by trying to appreciate the evidence and coming to a conclusion that no offence is made out. On examining the material on record and the impugned judgment of the High Court we are of the considered opinion that the High Court was wholly unjustified in invoking its inherent power under Section 482 of the Code of Criminal Procedure to quash the cognizance taken inasmuch as the allegation in the FIR and material referred to in the charge-sheet do make out an offence under Section 414 of the Indian Penal Code, so far as the respondent is concerned.
### Response:
1
### Explanation:
When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When the investigation officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise of inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power.Bearing in mind the aforesaid parameters if the charge-sheet and the FIR filed in the case in hand are examined and the impugned order of the High Court is tested, the conclusion becomes irresistible that the High Court exceeded its jurisdiction by trying to appreciate the evidence and coming to a conclusion that no offence is made out. On examining the material on record and the impugned judgment of the High Court we are of the considered opinion that the High Court was wholly unjustified in invoking its inherent power under Section 482 of the Code of Criminal Procedure to quash the cognizance taken inasmuch as the allegation in the FIR and material referred to in the charge-sheet do make out an offence under Section 414 of the Indian Penal Code, so far as the respondent is concerned.
|
Lotus Line (P) Ltd Vs. The State Of Maharashtra | therein the principle which the High Court has deduced from the case of Wednesbury Corporation, (1907) 1 KB 78. Learned counsel for the respondent-State is also unable to point out any passage in the judgment of Cozens-Hardy L. J. which lays down the proposition in the form in which the High Court has stated it. As we read that case it lays down that the rights of a corporation in such a case are at least as high as that of a private owner, with this addition that a trustee or corporation cannot renounce those rights in the same way as a private owner could.The true measure of compensation was held in that case to be the cost of restoration and compensation must give full restoration.In that case the dispute really was whether the road which has subsided should be raised to the same level as it was before or whether the purpose would be served even though it was not raised to the same level and a dip was allowed therein. The Appeal Court held that the Corporation was entitled to full compensation for restoring the road to its original condition. It may be mentioned that this view was not accepted in full by the House of Lords.It seems to us, however, that the view taken in Wednesbury Corporations case, (1907) 1 KB 78, that a person whom a wrong is done is entitled to full compensation for restoring the thing damaged to its original condition may be accepted as the true measure of damages in a case of this kind. This applies equally to a private person as to a corporation or trustee. Therefore, the respondent-State was entitled to compensation to the extent necessary to restore the jetty to its original condition. If this is to be called restitution, the corporation as well as a private person would be entitled to it. But if by restitution, the High Court meant complete reconstruction irrespective of the damage done, then neither a private person nor a corporation or a trustee is entitled to complete reconstruction irrespective of the damage done. 5. This being the principle, the respondent-State would be entitled to such cost as would restore the jetty to its original condition. It is in that connection that an estimate was submitted for special repairs to the jetty as early as May 12, 1948. The appellant was invited to send a representative to assess the cost of repairing the damage done but it neglected to do so. There is nothing on the record to show that the special repairs to the tune of Rs. 16,400 were for complete reconstruction of the jetty irrespective of the damage done to it. Nothing has been brought out in the evidence of Patel who prepared the estimate and of the Sub-Divisional Officer who supervised it to show that the estimate of as. 16,400 was for complete reconstruction of the jetty irrespective of the damage done. The covering letter to the estimate shows that it was an estimate for special repairs to the jetty. If the appellant neglected to send a representative to be present to assess the damage and the cost of repairing it, it cannot now come forward and say that the amount of Rs. 16,400 would not be the proper sum required for restoring the jetty to its original condition. All that has been brought out in the evidence of the two witnesses referred to above is that it could not be said whether any part of the dismantled material was fit for re-use; nor were the witnesses able to say what the dismantled material would have fetched it sold. Barring these two matters all that the evidence shows is that the amount of as. 16,400 was needed to carry out the special repairs, which would have presumably restored the jetty to its original condition. Therefore, the respondent-State would be entitled to this sum of Rs. 16,400. But in view of the fact that some of the material might have been fit for re-use and some of the material might have been resold and thus fetched some price, we would deduct the item of Rs. 1,600 (from the total of Rs. 16,400) which refers to dismantling the damaged portion and removing the debris outside including sorting materials and stacking the useful one to a suitable site etc.". The rest of the estimate amounting to Rs. 14,800 is clearly for restoration of the jetty to its original condition and the respondent-State would be entitled to that amount. 6. We may add, however, that there is no reason to allow anything to the respondent State in the shape of emergent repairs. It has been shown that Rs. 14,800 would have restored the jetty to its original condition and that is all that the State is entitled to have. How it decided to spend that sum, whether at one time or at different times in the shape of emergent repairs or minor repairs has no bearing on the quanturn of compensation necessary for restoring the jetty to its original condition. For the same reason the fact that the State might not have spent the whole amount by the time the trial Court came to give its judgment or the fact that a bridge was going up and the jetty might not thereafter be required has no relevance on the question of damage done on April 27, 1948 though the former may affect the date from which interest may be awarded. We are, therefore, of opinion that the respondent-State is entitled to Rs. 14,800 as compensation for the damage done to the jetty to put it back in its original condition. We, therefore partly allow the appeal and reduce the amount decreed to Rs. 14,800. This sum will carry interest at the date of Rs. 6 per centum from the date of decree of the trial Court till realisation as ordered by the High Court. The appellant will pay proportionate costs throughout to the respondent-State. 7. | 1[ds]It seems to us, however, that the view taken in Wednesbury Corporations case, (1907) 1 KB 78, that a person whom a wrong is done is entitled to full compensation for restoring the thing damaged to its original condition may be accepted as the true measure of damages in a case of this kind. This applies equally to a private person as to a corporation or trustee. Therefore, thee was entitled to compensation to the extent necessary to restore the jetty to its original condition. If this is to be called restitution, the corporation as well as a private person would be entitled to it. But if by restitution, the High Court meant complete reconstruction irrespective of the damage done, then neither a private person nor a corporation or a trustee is entitled to complete reconstruction irrespective of the damage done5. This being the principle, the respondent-State would be entitled to such cost as would restore the jetty to its original condition. It is in that connection that an estimate was submitted for special repairs to the jetty as early as May 12, 1948. The appellant was invited to send a representative to assess the cost of repairing the damage done but it neglected to do so. There is nothing on the record to show that the special repairs to the tune of Rs. 16,400 were for complete reconstruction of the jetty irrespective of the damage done to it. Nothing has been brought out in the evidence of Patel who prepared the estimate and of the Sub-Divisional Officer who supervised it to show that the estimate of as. 16,400 was for complete reconstruction of the jetty irrespective of the damage done. The covering letter to the estimate shows that it was an estimate for special repairs to the jetty. If the appellant neglected to send a representative to be present to assess the damage and the cost of repairing it, it cannot now come forward and say that the amount of Rs. 16,400 would not be the proper sum required for restoring the jetty to its original condition. All that has been brought out in the evidence of the two witnesses referred to above is that it could not be said whether any part of the dismantled material was fit for re-use; nor were the witnesses able to say what the dismantled material would have fetched it sold. Barring these two matters all that the evidence shows is that the amount of as. 16,400 was needed to carry out the special repairs, which would have presumably restored the jetty to its original condition. Therefore, the respondent-State would be entitled to this sum of Rs. 16,400. But in view of the fact that some of the material might have been fit for re-use and some of the material might have been resold and thus fetched some price, we would deduct the item of Rs. 1,600 (from the total of Rs. 16,400) which refers to dismantling the damaged portion and removing the debris outside including sorting materials and stacking the useful one to a suitable site etc.". The rest of the estimate amounting to Rs. 14,800 is clearly for restoration of the jetty to its original condition and the respondent-State would be entitled to that amount6. We may add, however, that there is no reason to allow anything to the respondent State in the shape of emergent repairs. It has been shown that Rs. 14,800 would have restored the jetty to its original condition and that is all that the State is entitled to have. How it decided to spend that sum, whether at one time or at different times in the shape of emergent repairs or minor repairs has no bearing on the quanturn of compensation necessary for restoring the jetty to its original condition. For the same reason the fact that the State might not have spent the whole amount by the time the trial Court came to give its judgment or the fact that a bridge was going up and the jetty might not thereafter be required has no relevance on the question of damage done on April 27, 1948 though the former may affect the date from which interest may be awarded. We are, therefore, of opinion that the respondent-State is entitled to Rs. 14,800 as compensation for the damage done to the jetty to put it back in its original condition. | 1 | 2,115 | 797 | ### 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:
therein the principle which the High Court has deduced from the case of Wednesbury Corporation, (1907) 1 KB 78. Learned counsel for the respondent-State is also unable to point out any passage in the judgment of Cozens-Hardy L. J. which lays down the proposition in the form in which the High Court has stated it. As we read that case it lays down that the rights of a corporation in such a case are at least as high as that of a private owner, with this addition that a trustee or corporation cannot renounce those rights in the same way as a private owner could.The true measure of compensation was held in that case to be the cost of restoration and compensation must give full restoration.In that case the dispute really was whether the road which has subsided should be raised to the same level as it was before or whether the purpose would be served even though it was not raised to the same level and a dip was allowed therein. The Appeal Court held that the Corporation was entitled to full compensation for restoring the road to its original condition. It may be mentioned that this view was not accepted in full by the House of Lords.It seems to us, however, that the view taken in Wednesbury Corporations case, (1907) 1 KB 78, that a person whom a wrong is done is entitled to full compensation for restoring the thing damaged to its original condition may be accepted as the true measure of damages in a case of this kind. This applies equally to a private person as to a corporation or trustee. Therefore, the respondent-State was entitled to compensation to the extent necessary to restore the jetty to its original condition. If this is to be called restitution, the corporation as well as a private person would be entitled to it. But if by restitution, the High Court meant complete reconstruction irrespective of the damage done, then neither a private person nor a corporation or a trustee is entitled to complete reconstruction irrespective of the damage done. 5. This being the principle, the respondent-State would be entitled to such cost as would restore the jetty to its original condition. It is in that connection that an estimate was submitted for special repairs to the jetty as early as May 12, 1948. The appellant was invited to send a representative to assess the cost of repairing the damage done but it neglected to do so. There is nothing on the record to show that the special repairs to the tune of Rs. 16,400 were for complete reconstruction of the jetty irrespective of the damage done to it. Nothing has been brought out in the evidence of Patel who prepared the estimate and of the Sub-Divisional Officer who supervised it to show that the estimate of as. 16,400 was for complete reconstruction of the jetty irrespective of the damage done. The covering letter to the estimate shows that it was an estimate for special repairs to the jetty. If the appellant neglected to send a representative to be present to assess the damage and the cost of repairing it, it cannot now come forward and say that the amount of Rs. 16,400 would not be the proper sum required for restoring the jetty to its original condition. All that has been brought out in the evidence of the two witnesses referred to above is that it could not be said whether any part of the dismantled material was fit for re-use; nor were the witnesses able to say what the dismantled material would have fetched it sold. Barring these two matters all that the evidence shows is that the amount of as. 16,400 was needed to carry out the special repairs, which would have presumably restored the jetty to its original condition. Therefore, the respondent-State would be entitled to this sum of Rs. 16,400. But in view of the fact that some of the material might have been fit for re-use and some of the material might have been resold and thus fetched some price, we would deduct the item of Rs. 1,600 (from the total of Rs. 16,400) which refers to dismantling the damaged portion and removing the debris outside including sorting materials and stacking the useful one to a suitable site etc.". The rest of the estimate amounting to Rs. 14,800 is clearly for restoration of the jetty to its original condition and the respondent-State would be entitled to that amount. 6. We may add, however, that there is no reason to allow anything to the respondent State in the shape of emergent repairs. It has been shown that Rs. 14,800 would have restored the jetty to its original condition and that is all that the State is entitled to have. How it decided to spend that sum, whether at one time or at different times in the shape of emergent repairs or minor repairs has no bearing on the quanturn of compensation necessary for restoring the jetty to its original condition. For the same reason the fact that the State might not have spent the whole amount by the time the trial Court came to give its judgment or the fact that a bridge was going up and the jetty might not thereafter be required has no relevance on the question of damage done on April 27, 1948 though the former may affect the date from which interest may be awarded. We are, therefore, of opinion that the respondent-State is entitled to Rs. 14,800 as compensation for the damage done to the jetty to put it back in its original condition. We, therefore partly allow the appeal and reduce the amount decreed to Rs. 14,800. This sum will carry interest at the date of Rs. 6 per centum from the date of decree of the trial Court till realisation as ordered by the High Court. The appellant will pay proportionate costs throughout to the respondent-State. 7.
### Response:
1
### Explanation:
It seems to us, however, that the view taken in Wednesbury Corporations case, (1907) 1 KB 78, that a person whom a wrong is done is entitled to full compensation for restoring the thing damaged to its original condition may be accepted as the true measure of damages in a case of this kind. This applies equally to a private person as to a corporation or trustee. Therefore, thee was entitled to compensation to the extent necessary to restore the jetty to its original condition. If this is to be called restitution, the corporation as well as a private person would be entitled to it. But if by restitution, the High Court meant complete reconstruction irrespective of the damage done, then neither a private person nor a corporation or a trustee is entitled to complete reconstruction irrespective of the damage done5. This being the principle, the respondent-State would be entitled to such cost as would restore the jetty to its original condition. It is in that connection that an estimate was submitted for special repairs to the jetty as early as May 12, 1948. The appellant was invited to send a representative to assess the cost of repairing the damage done but it neglected to do so. There is nothing on the record to show that the special repairs to the tune of Rs. 16,400 were for complete reconstruction of the jetty irrespective of the damage done to it. Nothing has been brought out in the evidence of Patel who prepared the estimate and of the Sub-Divisional Officer who supervised it to show that the estimate of as. 16,400 was for complete reconstruction of the jetty irrespective of the damage done. The covering letter to the estimate shows that it was an estimate for special repairs to the jetty. If the appellant neglected to send a representative to be present to assess the damage and the cost of repairing it, it cannot now come forward and say that the amount of Rs. 16,400 would not be the proper sum required for restoring the jetty to its original condition. All that has been brought out in the evidence of the two witnesses referred to above is that it could not be said whether any part of the dismantled material was fit for re-use; nor were the witnesses able to say what the dismantled material would have fetched it sold. Barring these two matters all that the evidence shows is that the amount of as. 16,400 was needed to carry out the special repairs, which would have presumably restored the jetty to its original condition. Therefore, the respondent-State would be entitled to this sum of Rs. 16,400. But in view of the fact that some of the material might have been fit for re-use and some of the material might have been resold and thus fetched some price, we would deduct the item of Rs. 1,600 (from the total of Rs. 16,400) which refers to dismantling the damaged portion and removing the debris outside including sorting materials and stacking the useful one to a suitable site etc.". The rest of the estimate amounting to Rs. 14,800 is clearly for restoration of the jetty to its original condition and the respondent-State would be entitled to that amount6. We may add, however, that there is no reason to allow anything to the respondent State in the shape of emergent repairs. It has been shown that Rs. 14,800 would have restored the jetty to its original condition and that is all that the State is entitled to have. How it decided to spend that sum, whether at one time or at different times in the shape of emergent repairs or minor repairs has no bearing on the quanturn of compensation necessary for restoring the jetty to its original condition. For the same reason the fact that the State might not have spent the whole amount by the time the trial Court came to give its judgment or the fact that a bridge was going up and the jetty might not thereafter be required has no relevance on the question of damage done on April 27, 1948 though the former may affect the date from which interest may be awarded. We are, therefore, of opinion that the respondent-State is entitled to Rs. 14,800 as compensation for the damage done to the jetty to put it back in its original condition.
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Delhi Transport Corporation Vs. Sandeep Kaushik and Ors | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 13.09.2013 passed by the High Court of Delhi at New Delhi in Writ Petition No. 3510 of 2012 and the order dated 05.09.2014 passed in Review Petition No. 195 of 2014 in Writ Petition No. 3510 of 2012, the Delhi Transport Corporation has preferred the present appeals. 1.1 By the impugned judgment and order, the High Court has allowed the writ petition and directed the appellant to appoint the private respondent herein – original writ petitioner in the writ petition namely, Sandeep Kaushik as Driver with seniority as per his merit position without any back wages. 2. Dr. Monika Gusain, learned counsel appearing on behalf of the appellant – Delhi Transport Corporation (DTC) has vehemently submitted that in the present case, the appellant sent a requisition to the respondent No. 2 for recruitment of drivers as far as back in the year 2007. It is submitted that the advertisement was issued to fill up the post of drivers in the month of January, 2008 and thereafter 14 years have passed and there are changed circumstances due to which now it is not possible to reinstate/appoint the private respondent herein – original writ petitioner on the post of driver. 2.1 It is vehemently submitted that as on today there is no post of driver available on which the private respondent herein – original writ petitioner can be accommodated and/or reinstated. It is pointed out that now, all the appointments on the post of drivers are being made contractually. It is also submitted that the retirement age of the drivers is 55 years and the original writ petitioner, at present, would be approximately of 49 years of age and even if he is to be reinstated/appointed on the post in question – driver, he has to clear the driving test. It is pointed out that therefore, at this stage, no actual appointment can possibly be made. 2.2 It is also vehemently submitted by Dr. Monika Gusain, learned counsel appearing on behalf of the appellant that in fact there was no fault and/or illegality on the part of the appellant – DTC. It is submitted that the entire process of recruitment was handed over to respondent No.2, who conducted the examination and the entire recruitment process and the appellant – DTC was to make the appointment as per the recommendations made by respondent No.2. 3. Shri Nachiketa Joshi, learned counsel appearing on behalf of respondent No.2 is not in a position to support their action making the appointments only on the basis of the marks allotted in the viva test and without there being any guidelines to bifurcate the marks on different aspects. However, he has submitted that subsequently now the entire system has been changed. 4. Mr. Manish Bhardwaj, learned counsel appearing on behalf of respondent No.1 - original writ petitioner has vehemently submitted that as such the original writ petitioner has succeeded before the High Court and the Honble High Court has specifically observed and held that the entire recruitment process was bad as the appointments were made solely on the basis of the marks allotted in the viva test. It is submitted that the respondent No.1 – original writ petitioner is fighting since the year 2008/2009 and even the Honble High Court has directed to appoint the respondent No.1 – original writ petitioner without back wages. Therefore, it is prayed not to interfere with the same. 5. Having heard the learned counsel appearing on behalf of the respective parties and the impugned judgment and order passed by the High Court and considering the fact that the appointments were made solely on the basis of the marks allotted in the viva test, the impugned judgment and order passed by the High Court, insofar as holding the entire recruitment process bad, does not call for any interference by this Court. However, at the same time, the question, which is required to be considered is whether the respondent No.1 is to be appointed now after a period of 14 years from the date of initial recruitment and when there are changed circumstances due to which it is now not possible to actually appoint the respondent No.1 – original writ petitioner. It is pointed out that as on today, no post of driver is available. All the subsequent appointments are now being made on contractual basis and through contractors. As on today, the age of the respondent No.1 would be approximately 49 years. The retirement age of the driver is reported to be 55 years. If the respondent No.1 – original writ petitioner is to be appointed now as driver, he will have to clear the driving test to drive the bus on the road. Considering the overall facts and circumstances of the case, we are of the opinion that at this stage, the actual appointment of respondent No.1 – original writ petitioner is not possible. Therefore, we are of the opinion that if the respondent No.1 – original writ petitioner is awarded a lumpsum compensation in lieu of actual appointment as a driver with reasonable interest, the same can be said to be in larger interest and can be said to be doing substantial justice. | 1[ds]5. Having heard the learned counsel appearing on behalf of the respective parties and the impugned judgment and order passed by the High Court and considering the fact that the appointments were made solely on the basis of the marks allotted in the viva test, the impugned judgment and order passed by the High Court, insofar as holding the entire recruitment process bad, does not call for any interference by this Court.However, at the same time, the question, which is required to be considered is whether the respondent No.1 is to be appointed now after a period of 14 years from the date of initial recruitment and when there are changed circumstances due to which it is now not possible to actually appoint the respondent No.1 – original writ petitioner. It is pointed out that as on today, no post of driver is available. All the subsequent appointments are now being made on contractual basis and through contractors. As on today, the age of the respondent No.1 would be approximately 49 years. The retirement age of the driver is reported to be 55 years. If the respondent No.1 – original writ petitioner is to be appointed now as driver, he will have to clear the driving test to drive the bus on the road. Considering the overall facts and circumstances of the case, we are of the opinion that at this stage, the actual appointment of respondent No.1 – original writ petitioner is not possible. Therefore, we are of the opinion that if the respondent No.1 – original writ petitioner is awarded a lumpsum compensation in lieu of actual appointment as a driver with reasonable interest, the same can be said to be in larger interest and can be said to be doing substantial justice. | 1 | 946 | 321 | ### 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:
M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 13.09.2013 passed by the High Court of Delhi at New Delhi in Writ Petition No. 3510 of 2012 and the order dated 05.09.2014 passed in Review Petition No. 195 of 2014 in Writ Petition No. 3510 of 2012, the Delhi Transport Corporation has preferred the present appeals. 1.1 By the impugned judgment and order, the High Court has allowed the writ petition and directed the appellant to appoint the private respondent herein – original writ petitioner in the writ petition namely, Sandeep Kaushik as Driver with seniority as per his merit position without any back wages. 2. Dr. Monika Gusain, learned counsel appearing on behalf of the appellant – Delhi Transport Corporation (DTC) has vehemently submitted that in the present case, the appellant sent a requisition to the respondent No. 2 for recruitment of drivers as far as back in the year 2007. It is submitted that the advertisement was issued to fill up the post of drivers in the month of January, 2008 and thereafter 14 years have passed and there are changed circumstances due to which now it is not possible to reinstate/appoint the private respondent herein – original writ petitioner on the post of driver. 2.1 It is vehemently submitted that as on today there is no post of driver available on which the private respondent herein – original writ petitioner can be accommodated and/or reinstated. It is pointed out that now, all the appointments on the post of drivers are being made contractually. It is also submitted that the retirement age of the drivers is 55 years and the original writ petitioner, at present, would be approximately of 49 years of age and even if he is to be reinstated/appointed on the post in question – driver, he has to clear the driving test. It is pointed out that therefore, at this stage, no actual appointment can possibly be made. 2.2 It is also vehemently submitted by Dr. Monika Gusain, learned counsel appearing on behalf of the appellant that in fact there was no fault and/or illegality on the part of the appellant – DTC. It is submitted that the entire process of recruitment was handed over to respondent No.2, who conducted the examination and the entire recruitment process and the appellant – DTC was to make the appointment as per the recommendations made by respondent No.2. 3. Shri Nachiketa Joshi, learned counsel appearing on behalf of respondent No.2 is not in a position to support their action making the appointments only on the basis of the marks allotted in the viva test and without there being any guidelines to bifurcate the marks on different aspects. However, he has submitted that subsequently now the entire system has been changed. 4. Mr. Manish Bhardwaj, learned counsel appearing on behalf of respondent No.1 - original writ petitioner has vehemently submitted that as such the original writ petitioner has succeeded before the High Court and the Honble High Court has specifically observed and held that the entire recruitment process was bad as the appointments were made solely on the basis of the marks allotted in the viva test. It is submitted that the respondent No.1 – original writ petitioner is fighting since the year 2008/2009 and even the Honble High Court has directed to appoint the respondent No.1 – original writ petitioner without back wages. Therefore, it is prayed not to interfere with the same. 5. Having heard the learned counsel appearing on behalf of the respective parties and the impugned judgment and order passed by the High Court and considering the fact that the appointments were made solely on the basis of the marks allotted in the viva test, the impugned judgment and order passed by the High Court, insofar as holding the entire recruitment process bad, does not call for any interference by this Court. However, at the same time, the question, which is required to be considered is whether the respondent No.1 is to be appointed now after a period of 14 years from the date of initial recruitment and when there are changed circumstances due to which it is now not possible to actually appoint the respondent No.1 – original writ petitioner. It is pointed out that as on today, no post of driver is available. All the subsequent appointments are now being made on contractual basis and through contractors. As on today, the age of the respondent No.1 would be approximately 49 years. The retirement age of the driver is reported to be 55 years. If the respondent No.1 – original writ petitioner is to be appointed now as driver, he will have to clear the driving test to drive the bus on the road. Considering the overall facts and circumstances of the case, we are of the opinion that at this stage, the actual appointment of respondent No.1 – original writ petitioner is not possible. Therefore, we are of the opinion that if the respondent No.1 – original writ petitioner is awarded a lumpsum compensation in lieu of actual appointment as a driver with reasonable interest, the same can be said to be in larger interest and can be said to be doing substantial justice.
### Response:
1
### Explanation:
5. Having heard the learned counsel appearing on behalf of the respective parties and the impugned judgment and order passed by the High Court and considering the fact that the appointments were made solely on the basis of the marks allotted in the viva test, the impugned judgment and order passed by the High Court, insofar as holding the entire recruitment process bad, does not call for any interference by this Court.However, at the same time, the question, which is required to be considered is whether the respondent No.1 is to be appointed now after a period of 14 years from the date of initial recruitment and when there are changed circumstances due to which it is now not possible to actually appoint the respondent No.1 – original writ petitioner. It is pointed out that as on today, no post of driver is available. All the subsequent appointments are now being made on contractual basis and through contractors. As on today, the age of the respondent No.1 would be approximately 49 years. The retirement age of the driver is reported to be 55 years. If the respondent No.1 – original writ petitioner is to be appointed now as driver, he will have to clear the driving test to drive the bus on the road. Considering the overall facts and circumstances of the case, we are of the opinion that at this stage, the actual appointment of respondent No.1 – original writ petitioner is not possible. Therefore, we are of the opinion that if the respondent No.1 – original writ petitioner is awarded a lumpsum compensation in lieu of actual appointment as a driver with reasonable interest, the same can be said to be in larger interest and can be said to be doing substantial justice.
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Harcharan Vs. State of Haryana | Faridabad Complex, the High Court was pleased to award compensation at the rate of Rs 10 per square yard on the footing that the land had the potentiality of building site. It was also alleged that for the land acquired for development of Sector 13 of Faridabad Complex situated in Ballabhgarh-Faridabad Controlled Area compensation was awarded by the High Court at the rate of Rs 10 per square yard on the footing that the land had the potentiality of building site. After reciting the aforementioned averments, the appellant had stated that the land involved in dispute and acquired for development of Sector 14 is situated in the Ballabhgarh-Faridabad Controlled Area and must be held to have the same potentiality and, therefore, the compensation ought to be awarded on the footing that it has the potentiality of a building site. The appellant accordingly sought amendment of the memorandum of appeal for change of ascertainment of compensation. It is this application which was dismissed by the High Court in limine principally on the ground as transpires from the order extracted above that the application was moved nearly six years after the appeal was filed.4. It is a well settled principle that the best evidence with regard to evaluation of price of land in a proceeding for ascertainment of compensation for land acquired under the Act is the award of the court, subject of course, to the comparison of the land areawise, topographywise and usewise. The appellant sought amendment relying on this principle. The question is whether the High Court was justified in dismissing this petition in limine. Order 6, Rule 17 in terms provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be necessary for the purpose of determining the real questions in controversy between the parties.5. Appellant contends that his land is acquired; that it has the potentiality of a building site which can be used for industrial or commercial purposes; and that Faridabad-Ballabhgarh Complex is primarily an industrial comlex and, therefore, he must be awarded compensation on the footing that the land has the potentiality of a building site and not as has been done by the Land Acquisition Collector and the District Judge on the footing that it is agricultural land. Now, the principal and primary question while ascertaining compensation for land acquired under the Act is the market value of the land on the date of the notification under Section 4. The determination of this question depends upon the nature and potentiality of the land. It is the real question in controversy between the parties. To effectively and finally adjudicate this controversy necessary pleadings ought to be available. To highlight this real controversy it may become necessary to amend the pleadings. When an appeal is preferred the memorandum of appeal has the same position like the plaint in a suit because plaintiff is held to the case pleaded in the plaint. In the case of memorandum of appeal same situation obtains in view of Order 41, Rule 3. The appellant is confined to and also would be held to the memorandum of appeal. To overcome any contention that such is not the pleading the appellant sought the amendment. It was declined on the sole ground that it was delayed by six years because the High Court does not refer to any other ground for rejecting this application. The High Court has not held the averments in the application about the various decisions rendered by the same High Court as being untrue or otherwise. Therefore, the foundation for the amendment is neither shaken nor knocked out. We are, therefore, left to the only question whether the appellant should be denied an opportunity to agitate what is the market value of the land and what would be justly due to him on the ground of delay in moving the application for amendment of pleadings. We need not dilate on this question in view of the decision of this Court in Ganesh Trading Co. v. Moji Ram ((1978) 2 SCR 614 : (1978) 2 SCC 91 : AIR 1978 SC 484 ), wherein it has been observed as under : (SCC p. 93, para 2)Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.6. In that case an application for amendment of the plaint with a view to altering the cause of action itself and to introduce indirectly through an amendment of his pleadings an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, was rejected by the High Court and the plaintiffs revision petition to the High Court did not meet with success. This Court granted the application for amendment simultaneously observing that even though this Court would not ordinarily interfere with interlocutory orders, the Court felt compelled in order to promote uniform standards and views on questions basic for a sound administration of justice and in order to prevent very obvious failures of justice, to interfere even in such a matter in a very exceptional case such as the one that was before the Court.7. The position before us is far better than the situation was before the Court in the aforementioned case. The appellant sought amendment relying upon the decisions of the High Court itself and the decisions provided a comparable yardstick for effectively disposing of the real controversy before the High Court and the amendment was sought before the High Court proceeded to dispose of the appeal. | 1[ds]We need not dilate on this question in view of the decision of this Court in Ganesh Trading Co. v. Moji Ram ((1978) 2 SCR 614 : (1978) 2 SCC 91 : AIR 1978 SC 484 ), wherein it has been observed as under : (SCC p. 93, para 2)Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take. | 1 | 1,532 | 137 | ### 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:
Faridabad Complex, the High Court was pleased to award compensation at the rate of Rs 10 per square yard on the footing that the land had the potentiality of building site. It was also alleged that for the land acquired for development of Sector 13 of Faridabad Complex situated in Ballabhgarh-Faridabad Controlled Area compensation was awarded by the High Court at the rate of Rs 10 per square yard on the footing that the land had the potentiality of building site. After reciting the aforementioned averments, the appellant had stated that the land involved in dispute and acquired for development of Sector 14 is situated in the Ballabhgarh-Faridabad Controlled Area and must be held to have the same potentiality and, therefore, the compensation ought to be awarded on the footing that it has the potentiality of a building site. The appellant accordingly sought amendment of the memorandum of appeal for change of ascertainment of compensation. It is this application which was dismissed by the High Court in limine principally on the ground as transpires from the order extracted above that the application was moved nearly six years after the appeal was filed.4. It is a well settled principle that the best evidence with regard to evaluation of price of land in a proceeding for ascertainment of compensation for land acquired under the Act is the award of the court, subject of course, to the comparison of the land areawise, topographywise and usewise. The appellant sought amendment relying on this principle. The question is whether the High Court was justified in dismissing this petition in limine. Order 6, Rule 17 in terms provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be necessary for the purpose of determining the real questions in controversy between the parties.5. Appellant contends that his land is acquired; that it has the potentiality of a building site which can be used for industrial or commercial purposes; and that Faridabad-Ballabhgarh Complex is primarily an industrial comlex and, therefore, he must be awarded compensation on the footing that the land has the potentiality of a building site and not as has been done by the Land Acquisition Collector and the District Judge on the footing that it is agricultural land. Now, the principal and primary question while ascertaining compensation for land acquired under the Act is the market value of the land on the date of the notification under Section 4. The determination of this question depends upon the nature and potentiality of the land. It is the real question in controversy between the parties. To effectively and finally adjudicate this controversy necessary pleadings ought to be available. To highlight this real controversy it may become necessary to amend the pleadings. When an appeal is preferred the memorandum of appeal has the same position like the plaint in a suit because plaintiff is held to the case pleaded in the plaint. In the case of memorandum of appeal same situation obtains in view of Order 41, Rule 3. The appellant is confined to and also would be held to the memorandum of appeal. To overcome any contention that such is not the pleading the appellant sought the amendment. It was declined on the sole ground that it was delayed by six years because the High Court does not refer to any other ground for rejecting this application. The High Court has not held the averments in the application about the various decisions rendered by the same High Court as being untrue or otherwise. Therefore, the foundation for the amendment is neither shaken nor knocked out. We are, therefore, left to the only question whether the appellant should be denied an opportunity to agitate what is the market value of the land and what would be justly due to him on the ground of delay in moving the application for amendment of pleadings. We need not dilate on this question in view of the decision of this Court in Ganesh Trading Co. v. Moji Ram ((1978) 2 SCR 614 : (1978) 2 SCC 91 : AIR 1978 SC 484 ), wherein it has been observed as under : (SCC p. 93, para 2)Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.6. In that case an application for amendment of the plaint with a view to altering the cause of action itself and to introduce indirectly through an amendment of his pleadings an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, was rejected by the High Court and the plaintiffs revision petition to the High Court did not meet with success. This Court granted the application for amendment simultaneously observing that even though this Court would not ordinarily interfere with interlocutory orders, the Court felt compelled in order to promote uniform standards and views on questions basic for a sound administration of justice and in order to prevent very obvious failures of justice, to interfere even in such a matter in a very exceptional case such as the one that was before the Court.7. The position before us is far better than the situation was before the Court in the aforementioned case. The appellant sought amendment relying upon the decisions of the High Court itself and the decisions provided a comparable yardstick for effectively disposing of the real controversy before the High Court and the amendment was sought before the High Court proceeded to dispose of the appeal.
### Response:
1
### Explanation:
We need not dilate on this question in view of the decision of this Court in Ganesh Trading Co. v. Moji Ram ((1978) 2 SCR 614 : (1978) 2 SCC 91 : AIR 1978 SC 484 ), wherein it has been observed as under : (SCC p. 93, para 2)Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.
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The Additional Commnr.Of C.Taxes,Bangalo Vs. Ayili Stone Industries Etc.Etc | so is that in all such cases, particularly under the excise law, the Court has to go by the facts of each case. In each case one has to examine the nature of the activity undertaken by an assessee. Mere extraction of stones may not constitute manufacture. Similarly, after extraction, if marble blocks are cut into slabs per se will not amount to the activity of manufacture." 25. Thereafter, the Court proceeded to deal with the process undertaken by the assessee and in that context stated:- "In the present case, we are not concerned only with cutting of marble blocks into slabs. In the present case we are also concerned with the activity of polishing and ultimate conversion of blocks into polished slabs and tiles. What we find from the process indicated hereinabove is that there are various stages through which the blocks have to go through before they become polished slabs and tiles. In the circumstances, we are of the view that on the facts of the cases in hand, there is certainly an activity which will come in the category of "manufacture" or "production" under Section 80-IA of the Income Tax Act." 26. The Court referred to the decision in CIT v. N.C. Budharaja & Co., 1994 Supp (1) SCC 280 and ruled thus:- "25. Applying the above tests laid down by this Court in Budharaja case to the facts of the present cases, we are of the view that blocks converted into polished slabs and tiles after undergoing the process indicated above certainly results in emergence of a new and distinct commodity. The original block does not remain the marble block, it becomes a slab or tile. In the circumstances, not only is there manufacture but also an activity which is something beyond manufacture and which brings a new product into existence and therefore, on the facts of these cases, we are of the view that the High Court was right in coming to the conclusion that the activity undertaken by the respondent assessees did constitute manufacture or production in terms of Section 80-IA of the Income Tax Act, 1961. 26. Before concluding, we would like to make one observation. If the contention of the Department is to be accepted, namely, that the activity undertaken by the respondents herein is not manufacture, then, it would have serious revenue consequences. As stated above, each of the respondents is paying excise duty, some of the respondents are job-workers and the activity undertaken by them has been recognised by various government authorities as manufacture. To say that the activity will not amount to manufacture or production under Section 80-IA will have disastrous consequences, particularly in view of the fact that the assessees in all the cases would plead that they were not liable to pay excise duty, sales tax, etc. because the activity did not constitute manufacture." 27. We have reproduced in extenso from the aforesaid authority, though the exposition of law arose under a different enactment. The three-Judge Bench has explained the principle stated in Rajasthan SEBs case as well as in Aman Marble (supra). In the case at hand, though the High Court in the impugned order posed the question correctly and placed reliance on Aman Marble (supra), yet it has not correctly applied the principle in the correct perspective. In Aman Marble (supra) the Court has held that it was not possible to accept that excavation of stones and thereafter cutting and polishing them into slabs resulted in a manufacture of goods. The decision in Foredge Granite (supra) had been restricted to the concept of polished granite block. The revisional authority, as we perceive, has applied the test of separate and distinct commercial product that comes into existence from granite stones and for the said purpose, it has relied on the pronouncement in Goa Granites (supra). We have copiously referred to Goa Granites (supra). It has drawn a distinction between the slabs and tiles. Entry 17(i) of Part S of the Act deals with polished granites, unpolished granites and chips. The tiles come under Entry 8 in part T of the second schedule to the Act. At Entry 8(iv), the tiles are covered. It is noticeable that in Entry 8, certain tiles have been classified under Entry 8(i) (ii) and (iii) of Part T. Under Entry 8(iv) further tiles are classified. It is as under:- "(iv) Other tiles not covered by items 1-4-88 to 31-3-96 Fifteen percent (i), (ii) and (iii) above 1-4-96 to 31-3-98 1-4-98 to 31-3-01 1-4-01 to 31-03-02 1-4-02 to 31-5-03 From 1-6-2003Twelve percent Ten percent Twelve percent Fifteen percent (Sixteen percent) " 28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words "other titles". A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached. 29. In view of the aforesaid, | 1[ds]28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words "other titles". A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached. | 1 | 7,444 | 261 | ### 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:
so is that in all such cases, particularly under the excise law, the Court has to go by the facts of each case. In each case one has to examine the nature of the activity undertaken by an assessee. Mere extraction of stones may not constitute manufacture. Similarly, after extraction, if marble blocks are cut into slabs per se will not amount to the activity of manufacture." 25. Thereafter, the Court proceeded to deal with the process undertaken by the assessee and in that context stated:- "In the present case, we are not concerned only with cutting of marble blocks into slabs. In the present case we are also concerned with the activity of polishing and ultimate conversion of blocks into polished slabs and tiles. What we find from the process indicated hereinabove is that there are various stages through which the blocks have to go through before they become polished slabs and tiles. In the circumstances, we are of the view that on the facts of the cases in hand, there is certainly an activity which will come in the category of "manufacture" or "production" under Section 80-IA of the Income Tax Act." 26. The Court referred to the decision in CIT v. N.C. Budharaja & Co., 1994 Supp (1) SCC 280 and ruled thus:- "25. Applying the above tests laid down by this Court in Budharaja case to the facts of the present cases, we are of the view that blocks converted into polished slabs and tiles after undergoing the process indicated above certainly results in emergence of a new and distinct commodity. The original block does not remain the marble block, it becomes a slab or tile. In the circumstances, not only is there manufacture but also an activity which is something beyond manufacture and which brings a new product into existence and therefore, on the facts of these cases, we are of the view that the High Court was right in coming to the conclusion that the activity undertaken by the respondent assessees did constitute manufacture or production in terms of Section 80-IA of the Income Tax Act, 1961. 26. Before concluding, we would like to make one observation. If the contention of the Department is to be accepted, namely, that the activity undertaken by the respondents herein is not manufacture, then, it would have serious revenue consequences. As stated above, each of the respondents is paying excise duty, some of the respondents are job-workers and the activity undertaken by them has been recognised by various government authorities as manufacture. To say that the activity will not amount to manufacture or production under Section 80-IA will have disastrous consequences, particularly in view of the fact that the assessees in all the cases would plead that they were not liable to pay excise duty, sales tax, etc. because the activity did not constitute manufacture." 27. We have reproduced in extenso from the aforesaid authority, though the exposition of law arose under a different enactment. The three-Judge Bench has explained the principle stated in Rajasthan SEBs case as well as in Aman Marble (supra). In the case at hand, though the High Court in the impugned order posed the question correctly and placed reliance on Aman Marble (supra), yet it has not correctly applied the principle in the correct perspective. In Aman Marble (supra) the Court has held that it was not possible to accept that excavation of stones and thereafter cutting and polishing them into slabs resulted in a manufacture of goods. The decision in Foredge Granite (supra) had been restricted to the concept of polished granite block. The revisional authority, as we perceive, has applied the test of separate and distinct commercial product that comes into existence from granite stones and for the said purpose, it has relied on the pronouncement in Goa Granites (supra). We have copiously referred to Goa Granites (supra). It has drawn a distinction between the slabs and tiles. Entry 17(i) of Part S of the Act deals with polished granites, unpolished granites and chips. The tiles come under Entry 8 in part T of the second schedule to the Act. At Entry 8(iv), the tiles are covered. It is noticeable that in Entry 8, certain tiles have been classified under Entry 8(i) (ii) and (iii) of Part T. Under Entry 8(iv) further tiles are classified. It is as under:- "(iv) Other tiles not covered by items 1-4-88 to 31-3-96 Fifteen percent (i), (ii) and (iii) above 1-4-96 to 31-3-98 1-4-98 to 31-3-01 1-4-01 to 31-03-02 1-4-02 to 31-5-03 From 1-6-2003Twelve percent Ten percent Twelve percent Fifteen percent (Sixteen percent) " 28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words "other titles". A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached. 29. In view of the aforesaid,
### Response:
1
### Explanation:
28. There is a distinction between polished granite stone or slabs and tiles. If a polished granite stone is used in a building for any purpose, it will come under Entry 17(i) of Part S of the second schedule, but if it is a tile, which comes into existence by different process, a new and distinct commodity emerges and it has a different commercial identity in the market. The process involved is extremely relevant. That aspect has not been gone into. The Assessing Officer while framing the assessment order has referred to Entry 17(i) of Part S but without any elaboration on Entry 8. Entry 8 carves out tiles as a different commodity. It uses the words "other titles". A granite tile would come within the said Entry if involvement of certain activities is established. To elaborate, if a polished granite which is a slab and used on the floor, it cannot be called a tile for the purpose of coming within the ambit and sweep of Entry 8. Some other process has to be undertaken. If tiles are manufactured or produced after undertaking some other activities, the position would be different. A finding has to be arrived at by carrying out due enquiry and for that purpose appropriate exercise has to be undertaken. In the absence of that, a final conclusion cannot be reached.
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Centre For Public Interest Litigation Vs. Union Of India | privatization law is necessary has been going on all over the world. This aspect has been discussed by Pierre Guislain in his book entitled ‘The Privatization Challenge’ published by the World Bank. The views of the learned Author are reproduced hereunder; "Whether a country needs to enact a privatization law or can do without one depends on several factors; the political situation and legal traditions of the country, the scope of its privatization program, and the nature of the enterprises to be privatized. Two different issues have to be addressed: does legislation need to be enacted to authorize or facilitate privatization, and if so, should the new provisions take the form of amendments to the pertinent laws or be grouped together in a specific privatization law?Some countries have opted to enact privatization laws even when privatization could have been implemented without amending the existing legislation. This may have the advantage of mobilizing explicit political support and commitment in favour of privatization from the very start. It may confer a stronger , clearer mandate on the Government and agencies if charge of implementing privatization and make them more accountable. A privatization law also provides an opportunity to introduce changes in legislation that, although not required for commencing the process, may substantially facilitate it. On the other hand, a privatization law involves risks, including potentially long delays in getting parliament approval, the sometimes excessively restrictive scope of legislative provisions, and a tendency on the part of some parliaments to interfere too much in the implementation of privatization transactions. Furthermore, special legislation may not be needed for the transfer of the subsidiaries, participations, or assets of State Owned Enterprises or public holding companies." (pp.296-297). 16. The learned Author has further enunciated that if legislation is to be brought for privatization, the same should reflect the broad political lines of the privatization strategy and programme and that it should also endow the Government or privatization agency with the required implementation powers, and it should avoid restrictions that may unduly tie the hands of the executing agencies and slow down the process. The legislation must allow adequate flexibility, in the choice of the privatization technique best suited to each, while providing basic safeguards guaranteeing the integrity and efficiency of the process. Success of the programme hinges on, among other things, a basic consensus among Parliament, Government, and head of state on the scope and broad lines of the programme; a clear mandate given to the executing agencies along with the powers necessary for fulfilling that mandate; and unambiguous, flexible, and competitive privatization procedures applied in a transparent manner by officials accountable for their actions. 17. Apart from United Kingdom, there have been privatization programmes in France and Italy in Europe. Similarly massive programme has been carried out in Argentina, Mexico and Brazil. In these countries, Privatization Acts have been enacted and numerous routes are adopted to achieve privatization, some of which are illustrated below: 1) A public offering of shares combined with a listing on the stock exchange has brought share ownership to many millions of people and have been mechanism through which the Government’s desire to widen share ownership has been brought to fruition.2) A trade sale to another private sector company or to a consortium and such a transaction is inherently more private than a share offering and some of the privatizations executed in this manner have faced some criticism for being insufficiently open to public examination and debate.3) A ‘management buy-out’ where the public sector entity’s management team combine together to raise finance and, in conjunction with the financier, purchase the business through a newly formed vehicle company.4) A private placing of shares in a business with a group of investors.5) Making State assets available under concession so that the assets may then be worked out by the concessionary.,6) Special features of making provision for a golden share that is a special share in the privatized entity which is retained by the Government and which typically entrenches certain provisions within the company’s articles or association in such a way as to prevent specified changes occurring without the consent of the Government. Such processes are adopted in certain businesses which are important in defence and strategic grounds and so should be insulated from the possibility of take over or, more generally, that business which are new to the private sector should not be blown off course by an unsolicited take over offer made clearly in their newly private lives. This special share can be double-edged sword and it may give protection to the Government in certain sensitive circumstances but leave the Government with the risk of incurring the wrath of shareholders who would be denied the right to accept what might be a very attractive offer for their shares.(Vide C. Graham and T. Prosser Golden Shares: (Industrial Policy by Stealth)7) There were certain other categories where debt equity swaps were followed. 18. We have an overview of the position world over on whether there is any need for law regarding privatisation or what routes are to be adopted for achieving the same. Irrespective of those considerations, we base our decision on the statutes with which we are concerned. 19. In the case of BALCO (supra) executive action to disinvest was not challenge probably due to the fact that there was no statutory backing of the nature with which we are concerned in the present case. In the case of Maruti Udyog Limited (supra), though acquired under an enactment, there was no challenge to the same to disinvest merely by executive action. Thus, these cases stand on a different footing. 20. There is no challenge before this Court as to the policy of disinvestment. The only question raised before us whether the method adopted by the Government in exercising its executive powers to disinvest HPCL and BPCL without repealing or amending the law is permissible or not. We find that on the language of the Act such a course is not permissible at all. | 1[ds]14. Again accretions to the Governmentassets subsequent to acquisition of the undertaking is an irrelevant factor in the context of the question we are considering. Here what is required to be seen is, not which asset can be transferred or not, but whether the undertaking can change its character from a Government company to ordinary company without Parliamentary clearance in the light of the statute of acquisition.There is no challenge before this Court as to the policy of disinvestment. The only question raised before us whether the method adopted by the Government in exercising its executive powers to disinvest HPCL and BPCL without repealing or amending the law is permissible or not. We find that on the language of the Act such a course is not permissible at all. | 1 | 5,792 | 140 | ### 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:
privatization law is necessary has been going on all over the world. This aspect has been discussed by Pierre Guislain in his book entitled ‘The Privatization Challenge’ published by the World Bank. The views of the learned Author are reproduced hereunder; "Whether a country needs to enact a privatization law or can do without one depends on several factors; the political situation and legal traditions of the country, the scope of its privatization program, and the nature of the enterprises to be privatized. Two different issues have to be addressed: does legislation need to be enacted to authorize or facilitate privatization, and if so, should the new provisions take the form of amendments to the pertinent laws or be grouped together in a specific privatization law?Some countries have opted to enact privatization laws even when privatization could have been implemented without amending the existing legislation. This may have the advantage of mobilizing explicit political support and commitment in favour of privatization from the very start. It may confer a stronger , clearer mandate on the Government and agencies if charge of implementing privatization and make them more accountable. A privatization law also provides an opportunity to introduce changes in legislation that, although not required for commencing the process, may substantially facilitate it. On the other hand, a privatization law involves risks, including potentially long delays in getting parliament approval, the sometimes excessively restrictive scope of legislative provisions, and a tendency on the part of some parliaments to interfere too much in the implementation of privatization transactions. Furthermore, special legislation may not be needed for the transfer of the subsidiaries, participations, or assets of State Owned Enterprises or public holding companies." (pp.296-297). 16. The learned Author has further enunciated that if legislation is to be brought for privatization, the same should reflect the broad political lines of the privatization strategy and programme and that it should also endow the Government or privatization agency with the required implementation powers, and it should avoid restrictions that may unduly tie the hands of the executing agencies and slow down the process. The legislation must allow adequate flexibility, in the choice of the privatization technique best suited to each, while providing basic safeguards guaranteeing the integrity and efficiency of the process. Success of the programme hinges on, among other things, a basic consensus among Parliament, Government, and head of state on the scope and broad lines of the programme; a clear mandate given to the executing agencies along with the powers necessary for fulfilling that mandate; and unambiguous, flexible, and competitive privatization procedures applied in a transparent manner by officials accountable for their actions. 17. Apart from United Kingdom, there have been privatization programmes in France and Italy in Europe. Similarly massive programme has been carried out in Argentina, Mexico and Brazil. In these countries, Privatization Acts have been enacted and numerous routes are adopted to achieve privatization, some of which are illustrated below: 1) A public offering of shares combined with a listing on the stock exchange has brought share ownership to many millions of people and have been mechanism through which the Government’s desire to widen share ownership has been brought to fruition.2) A trade sale to another private sector company or to a consortium and such a transaction is inherently more private than a share offering and some of the privatizations executed in this manner have faced some criticism for being insufficiently open to public examination and debate.3) A ‘management buy-out’ where the public sector entity’s management team combine together to raise finance and, in conjunction with the financier, purchase the business through a newly formed vehicle company.4) A private placing of shares in a business with a group of investors.5) Making State assets available under concession so that the assets may then be worked out by the concessionary.,6) Special features of making provision for a golden share that is a special share in the privatized entity which is retained by the Government and which typically entrenches certain provisions within the company’s articles or association in such a way as to prevent specified changes occurring without the consent of the Government. Such processes are adopted in certain businesses which are important in defence and strategic grounds and so should be insulated from the possibility of take over or, more generally, that business which are new to the private sector should not be blown off course by an unsolicited take over offer made clearly in their newly private lives. This special share can be double-edged sword and it may give protection to the Government in certain sensitive circumstances but leave the Government with the risk of incurring the wrath of shareholders who would be denied the right to accept what might be a very attractive offer for their shares.(Vide C. Graham and T. Prosser Golden Shares: (Industrial Policy by Stealth)7) There were certain other categories where debt equity swaps were followed. 18. We have an overview of the position world over on whether there is any need for law regarding privatisation or what routes are to be adopted for achieving the same. Irrespective of those considerations, we base our decision on the statutes with which we are concerned. 19. In the case of BALCO (supra) executive action to disinvest was not challenge probably due to the fact that there was no statutory backing of the nature with which we are concerned in the present case. In the case of Maruti Udyog Limited (supra), though acquired under an enactment, there was no challenge to the same to disinvest merely by executive action. Thus, these cases stand on a different footing. 20. There is no challenge before this Court as to the policy of disinvestment. The only question raised before us whether the method adopted by the Government in exercising its executive powers to disinvest HPCL and BPCL without repealing or amending the law is permissible or not. We find that on the language of the Act such a course is not permissible at all.
### Response:
1
### Explanation:
14. Again accretions to the Governmentassets subsequent to acquisition of the undertaking is an irrelevant factor in the context of the question we are considering. Here what is required to be seen is, not which asset can be transferred or not, but whether the undertaking can change its character from a Government company to ordinary company without Parliamentary clearance in the light of the statute of acquisition.There is no challenge before this Court as to the policy of disinvestment. The only question raised before us whether the method adopted by the Government in exercising its executive powers to disinvest HPCL and BPCL without repealing or amending the law is permissible or not. We find that on the language of the Act such a course is not permissible at all.
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Dr. C. Annacheriam And Another Vs. Achotha Menon And Others | Tarwad to another person so long of course as the transfer or delegation of power is revocable. According to the learned Judge a delegation of the power of management in favour of even a stranger would be valid. This view is not in consonance with that taken in Chappan Nayars case, ILR 12 Mad 219, which the learned Judge has not chosen to follow. It is also opposed to that taken in certain other cases. For the purposes of this case it is not necessary to say which of the two views is correct because here the delegation is in favour of anandravan, though not the seniormost anandravan.20.The decisions referred to above thus recognise that by a family karar a Karnavan s power of management, can be restricted and also that a Karnavans power of management can be delegated, so long as what is delegated is not the totality of the powers enjoyed by a Karnavan by virtue of his status. The question then is whether it follows from this that a Karnavans duties arising in connection with the management of the Tarwad can be delegated. One more concept of the Malabar law has to be borne in mind. The concept is that the properties belong to all the members of the Tarwad and that apart from the right of management the Karnavan has no larger right or interest than the other members. This is clear from the decision of Seshagir Ayyar, J., in Govindan Nairs case, 23 Mad LJ. 706, and the decisions referred to therein.By virtue of his status the Karnavan owes certain duties to the members of the Tarwad and one of such duties is to manage the properties in the best interest of the members. Those to whom the duties are owed may find that is their own interest the duties can be best performed by an anandravan in particular circumstances. This would be good reasons to justify the delegation of a Karnavans power of management to an anandravan by a family karar and to uphold such karar. Thus where for some reason the Karnavan is not able to discharge his duties in respect of management of the Tarwad property such as in the case before us, that is, where the Karnavan has left the country for an indefinite period or taken up a job in another country which would keep him away for years from his mother country, there must be someone who could look after the family property and who would have the power to manage it.If delegation of the Karnavans power of management is regarded as incompetent the necessary result would be that the interests of the family would suffer.It is by no means a practical proposition to expect the family members to approach the Karnavan, when he is at some far off corner, for his consent in regard to each and every transaction, be it sale, mortgage or lease. Again it may be too expensive for the Karnavan to come all the way back to his native place whenever an occasion arises for alienating or encumbering the Tarwad property for family necessity. No recognized concept underlying the Marumakkatayam law will be violated by holding that an agreement or karar entered into by the Karnavan and the members of the family by which the power of management of the Tarwad carrying with it the duty to decide during the absence of the Karnavan whether a particular alienation should be effected for meeting a family necessity is delegated to a Mukthiar so that he can exercise that power with the concurrence of the adult members during the absence of the Karnavan as and when occasion arises is a perfectly valid agreement. On the other hand to hold that this is permissible would be in consonance with the concept of joint ownership by all the members of the Tarwad properties and with the settled legal position that the powers of a Karnavan could be restricted by the consent of all, which, of course, includes the consent of the Karnavan himself. The execution of a power of attorney of this kind would, in effect, be a restriction placed by a family karar on the power of the Karnavan. The delegation merely of a power of management which is revocable cannot be regarded as a delegation of the office of the Karnavan. The Karnavan continues to be Karnavan but during his absence from the spot his managerial powers are exercisable by the Mukthiar. After he returns he can resume the management and carry on the affairs of the Tarwad. Or again, the delegation being through a power of attorney he can in a proper case put an end to it by revoking the power of attorney. Thus despite the execution of such a power of attorney he does not fade out completely and, therefore, there is no question of its operating as renunciation.21. The power of attorney given by the plaintiff No. 1 to defendant No. 3 has quite clearly been suppressed by them and we are, therefore, entitled to infer from this fact that, if produced, it would have gore against the. interests of the plaintiffs and other members of the Tarwad It would, therefore, be legitimate for us to assume that the power of attorney empowered the third defendant to sell family property with the consent of the other adult members of the family for family necessity if he formed the opinion that it was necessary to do so. The fact that the plaintiff No.1 executed the power of attorney before leaving for Borneo and thereafter several properties were alienated by the Mukthiar in conduction with the other anandravans and none of the alienations except the one in suit has been challenged by the plaintiff No.1 in all these years justifies the inference that these dispositions were in pursuance of the power of attorney and alto that the power of attorney was Itself executed by the plaintiff No. 1 in pursuance of a family karar. | 1[ds]11. The last two grounds are based upon the fact that the power of attorney has not been produced in this case and no explanation is given for its non-production. It would appear from the averments made by the defendant in the written statement that she had taken out summonses both against the plaintiff No.1 and defendant No.3 to produce the power of attorney in court but they neither produce it nor made a statement on theAct has been amended by some later Madras Acts and Central Acts but with those amendments we are not concerned in thisdoubt the Karnavan has the exclusive right to manage the Tarwad property but his power is no more than that of a manager of a Mitakshara family. Nor again does the property vest in the manager alone but in all the members of the family or the Tarwad. The right of the Karnavan to manage the family property is also subject to regulation by the common consent of all members of the family and that family karars restricting the rights of the Karnavan are a common feature in Malabar. Where a Karnavans rights are so restricted by common consent-which necessarily includes his own consent - he cannot ordinarily dispute the binding effect of the karar uponview has not since been departed from.17. Though a Karnavan can thus renounce his office he cannot delegate or transfer that office. For, if he renounces his office the senior anandaravan has a right to succeed him as Karnavan and the rights of senior anandaravan would be jeoparadize it were open to a Karnavan to transfer or delegate his office.lf,therefore, a Karnavan delegates all his rights and obligations either to another member of the Tarwad or to a stranger without reserving any power of revocation the Court will not give effect to such delegation as that would amount to transfer of his office as a Karnavan. But if it is possible to say that the delegation is not absolute in its character and is subject to resumption by the Karnavan the courts would treat it merely as a power ofis, however, not clear from the report whether the delegation by the Karnavan was by virtue of a family karar to which all members of the Tarwad were parties. The case is, therefore, distinguishable from the one beforedecisions referred to above thus recognise that by a family karar a Karnavan s power of management, can be restricted and also that a Karnavans power of management can be delegated, so long as what is delegated is not the totality of the powers enjoyed by a Karnavan by virtue of his status. The question then is whether it follows from this that a Karnavans duties arising in connection with the management of the Tarwad can be delegated. One more concept of the Malabar law has to be borne in mind. The concept is that the properties belong to all the members of the Tarwad and that apart from the right of management the Karnavan has no larger right or interest than the other members. This is clear from the decision of Seshagir Ayyar, J., in Govindan Nairs case, 23 Mad LJ. 706, and the decisions referred to therein.By virtue of his status the Karnavan owes certain duties to the members of the Tarwad and one of such duties is to manage the properties in the best interest of the members. Those to whom the duties are owed may find that is their own interest the duties can be best performed by an anandravan in particular circumstances. This would be good reasons to justify the delegation of a Karnavans power of management to an anandravan by a family karar and to uphold such karar. Thus where for some reason the Karnavan is not able to discharge his duties in respect of management of the Tarwad property such as in the case before us, that is, where the Karnavan has left the country for an indefinite period or taken up a job in another country which would keep him away for years from his mother country, there must be someone who could look after the family property and who would have the power to manage it.If delegation of the Karnavans power of management is regarded as incompetent the necessary result would be that the interests of the family would suffer.It is by no means a practical proposition to expect the family members to approach the Karnavan, when he is at some far off corner, for his consent in regard to each and every transaction, be it sale, mortgage or lease. Again it may be too expensive for the Karnavan to come all the way back to his native place whenever an occasion arises for alienating or encumbering the Tarwad property for family necessity. No recognized concept underlying the Marumakkatayam law will be violated by holding that an agreement or karar entered into by the Karnavan and the members of the family by which the power of management of the Tarwad carrying with it the duty to decide during the absence of the Karnavan whether a particular alienation should be effected for meeting a family necessity is delegated to a Mukthiar so that he can exercise that power with the concurrence of the adult members during the absence of the Karnavan as and when occasion arises is a perfectly valid agreement. On the other hand to hold that this is permissible would be in consonance with the concept of joint ownership by all the members of the Tarwad properties and with the settled legal position that the powers of a Karnavan could be restricted by the consent of all, which, of course, includes the consent of the Karnavan himself. The execution of a power of attorney of this kind would, in effect, be a restriction placed by a family karar on the power of the Karnavan. The delegation merely of a power of management which is revocable cannot be regarded as a delegation of the office of the Karnavan. The Karnavan continues to be Karnavan but during his absence from the spot his managerial powers are exercisable by the Mukthiar. After he returns he can resume the management and carry on the affairs of the Tarwad. Or again, the delegation being through a power of attorney he can in a proper case put an end to it by revoking the power of attorney. Thus despite the execution of such a power of attorney he does not fade out completely and, therefore, there is no question of its operating as renunciation.21. The power of attorney given by the plaintiff No. 1 to defendant No. 3 has quite clearly been suppressed by them and we are, therefore, entitled to infer from this fact that, if produced, it would have gore against the. interests of the plaintiffs and other members of the Tarwad It would, therefore, be legitimate for us to assume that the power of attorney empowered the third defendant to sell family property with the consent of the other adult members of the family for family necessity if he formed the opinion that it was necessary to do so. The fact that the plaintiff No.1 executed the power of attorney before leaving for Borneo and thereafter several properties were alienated by the Mukthiar in conduction with the other anandravans and none of the alienations except the one in suit has been challenged by the plaintiff No.1 in all these years justifies the inference that these dispositions were in pursuance of the power of attorney and alto that the power of attorney was Itself executed by the plaintiff No. 1 in pursuance of a family karar. | 1 | 5,214 | 1,355 | ### 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:
Tarwad to another person so long of course as the transfer or delegation of power is revocable. According to the learned Judge a delegation of the power of management in favour of even a stranger would be valid. This view is not in consonance with that taken in Chappan Nayars case, ILR 12 Mad 219, which the learned Judge has not chosen to follow. It is also opposed to that taken in certain other cases. For the purposes of this case it is not necessary to say which of the two views is correct because here the delegation is in favour of anandravan, though not the seniormost anandravan.20.The decisions referred to above thus recognise that by a family karar a Karnavan s power of management, can be restricted and also that a Karnavans power of management can be delegated, so long as what is delegated is not the totality of the powers enjoyed by a Karnavan by virtue of his status. The question then is whether it follows from this that a Karnavans duties arising in connection with the management of the Tarwad can be delegated. One more concept of the Malabar law has to be borne in mind. The concept is that the properties belong to all the members of the Tarwad and that apart from the right of management the Karnavan has no larger right or interest than the other members. This is clear from the decision of Seshagir Ayyar, J., in Govindan Nairs case, 23 Mad LJ. 706, and the decisions referred to therein.By virtue of his status the Karnavan owes certain duties to the members of the Tarwad and one of such duties is to manage the properties in the best interest of the members. Those to whom the duties are owed may find that is their own interest the duties can be best performed by an anandravan in particular circumstances. This would be good reasons to justify the delegation of a Karnavans power of management to an anandravan by a family karar and to uphold such karar. Thus where for some reason the Karnavan is not able to discharge his duties in respect of management of the Tarwad property such as in the case before us, that is, where the Karnavan has left the country for an indefinite period or taken up a job in another country which would keep him away for years from his mother country, there must be someone who could look after the family property and who would have the power to manage it.If delegation of the Karnavans power of management is regarded as incompetent the necessary result would be that the interests of the family would suffer.It is by no means a practical proposition to expect the family members to approach the Karnavan, when he is at some far off corner, for his consent in regard to each and every transaction, be it sale, mortgage or lease. Again it may be too expensive for the Karnavan to come all the way back to his native place whenever an occasion arises for alienating or encumbering the Tarwad property for family necessity. No recognized concept underlying the Marumakkatayam law will be violated by holding that an agreement or karar entered into by the Karnavan and the members of the family by which the power of management of the Tarwad carrying with it the duty to decide during the absence of the Karnavan whether a particular alienation should be effected for meeting a family necessity is delegated to a Mukthiar so that he can exercise that power with the concurrence of the adult members during the absence of the Karnavan as and when occasion arises is a perfectly valid agreement. On the other hand to hold that this is permissible would be in consonance with the concept of joint ownership by all the members of the Tarwad properties and with the settled legal position that the powers of a Karnavan could be restricted by the consent of all, which, of course, includes the consent of the Karnavan himself. The execution of a power of attorney of this kind would, in effect, be a restriction placed by a family karar on the power of the Karnavan. The delegation merely of a power of management which is revocable cannot be regarded as a delegation of the office of the Karnavan. The Karnavan continues to be Karnavan but during his absence from the spot his managerial powers are exercisable by the Mukthiar. After he returns he can resume the management and carry on the affairs of the Tarwad. Or again, the delegation being through a power of attorney he can in a proper case put an end to it by revoking the power of attorney. Thus despite the execution of such a power of attorney he does not fade out completely and, therefore, there is no question of its operating as renunciation.21. The power of attorney given by the plaintiff No. 1 to defendant No. 3 has quite clearly been suppressed by them and we are, therefore, entitled to infer from this fact that, if produced, it would have gore against the. interests of the plaintiffs and other members of the Tarwad It would, therefore, be legitimate for us to assume that the power of attorney empowered the third defendant to sell family property with the consent of the other adult members of the family for family necessity if he formed the opinion that it was necessary to do so. The fact that the plaintiff No.1 executed the power of attorney before leaving for Borneo and thereafter several properties were alienated by the Mukthiar in conduction with the other anandravans and none of the alienations except the one in suit has been challenged by the plaintiff No.1 in all these years justifies the inference that these dispositions were in pursuance of the power of attorney and alto that the power of attorney was Itself executed by the plaintiff No. 1 in pursuance of a family karar.
### Response:
1
### Explanation:
either to another member of the Tarwad or to a stranger without reserving any power of revocation the Court will not give effect to such delegation as that would amount to transfer of his office as a Karnavan. But if it is possible to say that the delegation is not absolute in its character and is subject to resumption by the Karnavan the courts would treat it merely as a power ofis, however, not clear from the report whether the delegation by the Karnavan was by virtue of a family karar to which all members of the Tarwad were parties. The case is, therefore, distinguishable from the one beforedecisions referred to above thus recognise that by a family karar a Karnavan s power of management, can be restricted and also that a Karnavans power of management can be delegated, so long as what is delegated is not the totality of the powers enjoyed by a Karnavan by virtue of his status. The question then is whether it follows from this that a Karnavans duties arising in connection with the management of the Tarwad can be delegated. One more concept of the Malabar law has to be borne in mind. The concept is that the properties belong to all the members of the Tarwad and that apart from the right of management the Karnavan has no larger right or interest than the other members. This is clear from the decision of Seshagir Ayyar, J., in Govindan Nairs case, 23 Mad LJ. 706, and the decisions referred to therein.By virtue of his status the Karnavan owes certain duties to the members of the Tarwad and one of such duties is to manage the properties in the best interest of the members. Those to whom the duties are owed may find that is their own interest the duties can be best performed by an anandravan in particular circumstances. This would be good reasons to justify the delegation of a Karnavans power of management to an anandravan by a family karar and to uphold such karar. Thus where for some reason the Karnavan is not able to discharge his duties in respect of management of the Tarwad property such as in the case before us, that is, where the Karnavan has left the country for an indefinite period or taken up a job in another country which would keep him away for years from his mother country, there must be someone who could look after the family property and who would have the power to manage it.If delegation of the Karnavans power of management is regarded as incompetent the necessary result would be that the interests of the family would suffer.It is by no means a practical proposition to expect the family members to approach the Karnavan, when he is at some far off corner, for his consent in regard to each and every transaction, be it sale, mortgage or lease. Again it may be too expensive for the Karnavan to come all the way back to his native place whenever an occasion arises for alienating or encumbering the Tarwad property for family necessity. No recognized concept underlying the Marumakkatayam law will be violated by holding that an agreement or karar entered into by the Karnavan and the members of the family by which the power of management of the Tarwad carrying with it the duty to decide during the absence of the Karnavan whether a particular alienation should be effected for meeting a family necessity is delegated to a Mukthiar so that he can exercise that power with the concurrence of the adult members during the absence of the Karnavan as and when occasion arises is a perfectly valid agreement. On the other hand to hold that this is permissible would be in consonance with the concept of joint ownership by all the members of the Tarwad properties and with the settled legal position that the powers of a Karnavan could be restricted by the consent of all, which, of course, includes the consent of the Karnavan himself. The execution of a power of attorney of this kind would, in effect, be a restriction placed by a family karar on the power of the Karnavan. The delegation merely of a power of management which is revocable cannot be regarded as a delegation of the office of the Karnavan. The Karnavan continues to be Karnavan but during his absence from the spot his managerial powers are exercisable by the Mukthiar. After he returns he can resume the management and carry on the affairs of the Tarwad. Or again, the delegation being through a power of attorney he can in a proper case put an end to it by revoking the power of attorney. Thus despite the execution of such a power of attorney he does not fade out completely and, therefore, there is no question of its operating as renunciation.21. The power of attorney given by the plaintiff No. 1 to defendant No. 3 has quite clearly been suppressed by them and we are, therefore, entitled to infer from this fact that, if produced, it would have gore against the. interests of the plaintiffs and other members of the Tarwad It would, therefore, be legitimate for us to assume that the power of attorney empowered the third defendant to sell family property with the consent of the other adult members of the family for family necessity if he formed the opinion that it was necessary to do so. The fact that the plaintiff No.1 executed the power of attorney before leaving for Borneo and thereafter several properties were alienated by the Mukthiar in conduction with the other anandravans and none of the alienations except the one in suit has been challenged by the plaintiff No.1 in all these years justifies the inference that these dispositions were in pursuance of the power of attorney and alto that the power of attorney was Itself executed by the plaintiff No. 1 in pursuance of a family karar.
|
Kalim Khan & Others Vs. Fimidabee & Others | the act. 25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said score. 26. Having said that, we have to presently analyse on whom the liability should be mulcted. As is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policy. The rival contention in this behalf has been considered by the tribunal in the following words:- 29. The Respondent No.2 has admitted the fact that Insurance Policy of offending tractor was for the agricultural purpose. The insurance of offending tractor was taken at Jaipur, Rajasthan. It was brought for commercial activity namely the blasting work. The blasting machine was found on the tractor. No permission from Competent Authority was taken for the blasting work and therefore, the Respondent No.2 has used tractor for commercial purpose and consequently there was fundamental breach of the Insurance Policy. The Respondent No.2 committed fundamental breach of the Insurance Policy allowing the use of tractor for commercial purpose and therefore, the decision cited supra is inapplicable. And again in paragraphs 35, 36 and 37, the tribunal has observed: 35. The Respondent No. 1 has come with the case that digging work with blasting operation was given with sole responsibility of Respondent Nos. 2 and 3. The Respondent Nos. 2 and 3 have come with the case that blasting work for digging of well was taken at the risk of Respondent No.1 to 3 have not produced documentary evidence showing that digging work of well with blasting operation was being done on the sole responsibility either of Respondent No.1 or of the respondent Nos. 2 and 3. In absence of such evidence, the Respondent Nos. 1 to 3 are jointly and severally liable to pay compensation. 36. It was submitted on behalf of Respondent No.4 that Respondent No.2 committed fundamental breach of Instruction Policy by using the tractor for commercial purpose and therefore, Respondent No.4 cannot be directed to make the payment to petitioners and recover the same from the owner of offending tractor. xxx xxx xxx 37. The Respondent No.2 allowed the use of offending tractor for doing the blasting work and therefore there was fundamental breach of the Insurance Policy. Since there was fundamental breach of the Insurance Policy for using the offending tractor for commercial purpose and consequently, Respondent No. 4 is not liable to pay the compensation and directed to pay the same and recover the same from Respondent No. 2 owner of offending tractor. xxx xxx xxx The High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act. 27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal. | 1[ds]6. As is noticeable, the High Court has recorded a finding that the battery was practically detached from the vehicle. The correctness of this finding is required to be determined first. It is necessary to note here that the tribunal has treated the accident to be a vehicular accident and entertained the claim. As we find, the High Court has not analyzed any evidence brought on record to come to the conclusion that the battery of the vehicle was practically detached from the vehicle and was not a part of the vehicle. On the contrary, the Tribunal had noticed that the panchnama of the tractor, Ex-42, clearly showed that the tractor was in the field and the blasting machine was found on tractor with wrapped gas pipe and an explosive battery found on the tractor with the wooden cover. It has referred to Ex-41 and other oral evidence to record the finding that the blasting machine was kept on the tractor driven by the driver engaged by the owner and the tractor was used for digging of the well with the blasting machine. The insurer, as is evident, had only raised a singular plea with regard to use of the tractor, namely, `commercial purpose and on that foundation, it had advanced the stance that there had been fundamental breach of the insurance policy. Keeping in view the evidence on record, we agree with the view expressed by the tribunal that the battery was still installed on the vehicle and the power was drawn from the battery for explosive purposesWe may note with profit that Section 92-A(1) used the words an accident arising out of the use of a motor vehicle and Section 165 of the Act that has been reproduced hereinabove also uses the words arising out of the use of motor vehicles. Thus, there has been no change in this part of the provisionThe aforesaid analysis throws immense light to understand the concept of related events and causal relation. They have been distinguished from an event which is not connected. Needless to say, the appreciation of causal relation is a question of fact in each case and is to be weighed and appreciated on the basis of the materials brought on record23. We entirely agree with the aforesaid analysis, for it is in accord with the view of the decisions of this Court24. It may be reiterated here that the causal relationship should exist between violation and the accident caused. There has to be some act done by the person concerned in causing the accident. The commission or omission must have some nexus with the accident. The word `use as has been explained by the authorities of this Court need not have an intimate and direct nexus with the accident. The Court has to bear in mind that the phraseology used by the legislature is accident arising out of use of the motor vehicle. The scope has been enlarged by such use of the phraseology and this Court taking note of the beneficial provision has placed a wider meaning on the same. There has to be some causal relation or the incident must relate to it. It should not be totally unconnected. Therefore, in each case what is required to be seen is whether there has been some causal relation or the event is related to the act25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said scoreAs is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policyThe High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal. | 1 | 6,625 | 1,268 | ### 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 act. 25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said score. 26. Having said that, we have to presently analyse on whom the liability should be mulcted. As is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policy. The rival contention in this behalf has been considered by the tribunal in the following words:- 29. The Respondent No.2 has admitted the fact that Insurance Policy of offending tractor was for the agricultural purpose. The insurance of offending tractor was taken at Jaipur, Rajasthan. It was brought for commercial activity namely the blasting work. The blasting machine was found on the tractor. No permission from Competent Authority was taken for the blasting work and therefore, the Respondent No.2 has used tractor for commercial purpose and consequently there was fundamental breach of the Insurance Policy. The Respondent No.2 committed fundamental breach of the Insurance Policy allowing the use of tractor for commercial purpose and therefore, the decision cited supra is inapplicable. And again in paragraphs 35, 36 and 37, the tribunal has observed: 35. The Respondent No. 1 has come with the case that digging work with blasting operation was given with sole responsibility of Respondent Nos. 2 and 3. The Respondent Nos. 2 and 3 have come with the case that blasting work for digging of well was taken at the risk of Respondent No.1 to 3 have not produced documentary evidence showing that digging work of well with blasting operation was being done on the sole responsibility either of Respondent No.1 or of the respondent Nos. 2 and 3. In absence of such evidence, the Respondent Nos. 1 to 3 are jointly and severally liable to pay compensation. 36. It was submitted on behalf of Respondent No.4 that Respondent No.2 committed fundamental breach of Instruction Policy by using the tractor for commercial purpose and therefore, Respondent No.4 cannot be directed to make the payment to petitioners and recover the same from the owner of offending tractor. xxx xxx xxx 37. The Respondent No.2 allowed the use of offending tractor for doing the blasting work and therefore there was fundamental breach of the Insurance Policy. Since there was fundamental breach of the Insurance Policy for using the offending tractor for commercial purpose and consequently, Respondent No. 4 is not liable to pay the compensation and directed to pay the same and recover the same from Respondent No. 2 owner of offending tractor. xxx xxx xxx The High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act. 27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal.
### Response:
1
### Explanation:
tractor was used for digging of the well with the blasting machine. The insurer, as is evident, had only raised a singular plea with regard to use of the tractor, namely, `commercial purpose and on that foundation, it had advanced the stance that there had been fundamental breach of the insurance policy. Keeping in view the evidence on record, we agree with the view expressed by the tribunal that the battery was still installed on the vehicle and the power was drawn from the battery for explosive purposesWe may note with profit that Section 92-A(1) used the words an accident arising out of the use of a motor vehicle and Section 165 of the Act that has been reproduced hereinabove also uses the words arising out of the use of motor vehicles. Thus, there has been no change in this part of the provisionThe aforesaid analysis throws immense light to understand the concept of related events and causal relation. They have been distinguished from an event which is not connected. Needless to say, the appreciation of causal relation is a question of fact in each case and is to be weighed and appreciated on the basis of the materials brought on record23. We entirely agree with the aforesaid analysis, for it is in accord with the view of the decisions of this Court24. It may be reiterated here that the causal relationship should exist between violation and the accident caused. There has to be some act done by the person concerned in causing the accident. The commission or omission must have some nexus with the accident. The word `use as has been explained by the authorities of this Court need not have an intimate and direct nexus with the accident. The Court has to bear in mind that the phraseology used by the legislature is accident arising out of use of the motor vehicle. The scope has been enlarged by such use of the phraseology and this Court taking note of the beneficial provision has placed a wider meaning on the same. There has to be some causal relation or the incident must relate to it. It should not be totally unconnected. Therefore, in each case what is required to be seen is whether there has been some causal relation or the event is related to the act25. Presently, we shall scrutinse the factual score in the case at hand. As is evincible, the battery was installed in the tractor and the explosives were charged by the battery. The purpose was to dig the well in the field. In such an obtaining factual matrix, it would be an erroneous perception to say that the vehicle was not in use as stipulated under Section 165 of the Act. Hence, we have no hesitation in holding that the Division Bench has fallen into error on the said scoreAs is evident, the insurer has advanced the plea that the tractor was insured under Farmer Package Policy for agriculture purpose by the owner of the vehicle. However, it was used for commercial purpose by mounting a blasting machine thereon. That use was in breach of insurance policy and, therefore, the insurer was not liable to pay the compensation. The insurer also examined its employee, namely, Mr. Chararkar to establish the fact that the owner of the vehicle had committed breach of insurance policy by using it for commercial purpose and for transporting the blasting machine. The tribunal has adverted to the plea of the insured that the vehicle was used for digging of the well in the field of respondent No. 1 (Fimidabee w/o Abdul Gaffar) which obviously was for irrigation and incidental to agricultural activity and not in breach of the insurance policyThe High Court, however, has not analysed this issue at all, for it took the view that as the vehicle was not used for causing explosion, it could not be said that the accident had arisen out of use of motor vehicle as defined under Section 165 of the Act27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal.
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S Sakti Oushadhalaya Dacca Private Limited Vs. Adhyaksha Mathur Babu' Union of India | that any action on the lines suggested by the Committee was taken by the Government of India. In these circumstances we have on the one side the three standard Ayurvedic text books according to which these preparations are prepared; we have also the affidavits of a large number of Ayurvedic practitioners of obvious repute to the effect that these preparations are medicinal preparations which are used to alleviate human suffering in certain conditions. On the other hand, there is no affidavit from an Ayurvedic expert on behalf of the respondents. We may however in this connection refer to an affidavit of the Assistant Chemical Examiner to the Government of West Bengal who is experienced in examining and analysing alcoholic liquors. According to him, the chief basis of these three preparations is molasses and gur, which is a fact as we have already pointed out from the recipe in the Ayurvedic text books. He further says that in these three preparations there are several steam volatile products, namely, furfural, aldohydes, ketones and acids but the presence of the same does not destroy or minimise the effect of alcoholic intoxication of these preparations. He further says that the taste or smell of these preparations does not make them unfit for drinking in a large dose and they can be used as an alcoholic beverage. Even this affidavit does not say that these are not medicinal preparations. All that it says is that these preparations contain about 42 per centum of alcohol and can be used as ordinary alcoholic beverages. So if these preparations are medicinal preparations but are also capable of being used as ordinary alcoholic beverages, they will fall under the Act and will be liable to duty under Item No. 1 of the Schedule at the rate of Rs. 17.50 np per gallon of the strength of London proof spirit. On a consideration of the material that has been placed before us, therefore, the only conclusion to which we can come is that these preparations are medicinal preparations according to the standard Ayurvedic text books referred to already, though they are also capable of being used as ordinary alcoholic beverages. They will therefore clearly fall within the definition of "medicinal preparation" and would be liable to duty under Item 1 of the Schedule to the Act. So far as the decision of the Standing Committee is concerned which resulted in the omission of these three preparations from the list attached to the Rules, that is not conclusive on the question whether these are medicinal preparations or not. Further the fact that these preparations are omitted from the list attached to the Rules would make no difference to their being medicinal preparations within the meaning of the Act, liable to duty under Item 1 of the Schedule, if they are in fact medicinal preparations as we hold them to be. They will therefore be liable to duty under Item 1 of the Schedule to the Act as they undoubtedly fall under that item and are capable of being consumed as ordinary alcoholic beverages. They cannot however be taxed under the various Excise Acts in force in the concerned States in view of their being medicinal preparations which are governed by the Act. 10. Lastly, it was urged on behalf of the respondents that these preparations are not prepared according to the formulae in the Ayurvedic text books referred to above. That is a question of fact which it is not possible for us to decide on the materials placed before us. The averment in this connection on behalf of the respondents is also not categorical; for example, it has been stated on behalf of the Union of India that it is not admitted that these preparations are prepared according to the specifications by utilising the proper ingredients and are manufactured according to the recipe and direction given in the Ayurvedic text books referred to above. Nothing has been brought on the record to show that these preparations were analysed and the analysis showed that the ingredients mentioned in the Ayurvedic text books were not present in the preparations. Besides, as it appears from the West Bengal Rules (ref. West Bengal Excise Compilation, Pt. 2) which we have quoted above, these preparations are prepared in bond and there are various restrictions before the issue of the preparations by the manufacturer. Nothing has been said to show that these preparations are not in fact made in accordance with the direction contained in the Ayurvedic text books. If this was not so, the excise staff would be there to check their preparation. As a matter of fact the first rule with respect to the manufacture of these preparations in the West Bengal Excise Compilation lays down that they will be prepared according to the recipe and direction in Arka Prakash, Ayurved Sangraha and Bhaisajya-Ratnabali; and if that rule is being disobeyed we should have expected some one to swear that though the rule says that the preparations should be made according to the directions in these text books, they are in fact not so made. Further if the rule is being contravened, there must be power in the State Government to take action against those who contravene the rule. But nothing has been brought to our notice to show that any action has been taken. In these circumstances we are not prepared to hold that these preparations are not prepared according to the Ayurvedic text books; and in any case our decision holding these three preparations as medicinal preparations is based on these preparations being made in accordance with the directions contained in the Ayurvedic text books and also in accordance with the Rules in the West Bengal Excise Compilation. We presume that the same must be the state of affairs in other States where these preparations are manufactured, though it appears that the petitioners in the present case are mostly from Calcutta and the manufacture in these cases must be going on Calcutta. | 1[ds]Therefore, the Excise Acts of the various States when they impose duty of excise on medicinal and toilet preparations had two purposes, namely, (i) to raise revenue and (ii) to reduce consumption of liquor, and therefore the Excise Acts of the various States cannot be said to be corresponding law which has been repealed by the Act which has only one purpose namely raising of revenue. We have not however been able to understand how any purpose behind a fiscal measure can have any relevance on the question of correspondence. Various Excise Acts of the States in so far as they impose duties on medicinal and toilet preparations containing alcohol are fiscal statutes for taxing these preparations. Now, the Act is a fiscal statute for taxing these preparations enacted by Parliament under Entry 84 of List I of the Seventh Schedule to the Constitution, and therefore the Excise Acts which were the corresponding taxing statutes for these preparations must be held to be repealed so far as taxation on these preparations is concerned. There can therefore be no doubt that there is correspondence between the Act and the various Excise Acts of the various States in so far as levy of duty on medicinal and toilet preparations is concerned and Section 21 of the Act repeals all the Excise Acts of the States so far as such levy is concerned. There can thus be no question of medicinal and toilet preparations being liable to duty under the Act as well as the various Excise Acts in force in the States. This contention is hereby rejectedThere seems no reason therefore not to accept the affidavits filed on behalf of the petitioners from qualified Ayurvedic practitioners : series F to F16. These Ayurvedic practitioners are not connected with the petitioners and what they say in their affidavits is in accordance with the use to which these preparations can be put as medicines according to the three Ayurvedic text books already referred to. In these circumstances it would in our opinion be impossible to say that these preparations are not remedies prepared for internal use of human beings and are not intended to be used for or in the treatment, mitigation or prevention of disease in human beings. If therefore they are a remedy prepared for internal use of human beings and are intended to be used for or in the treatment, mitigation and prevention of disease in human beings, they would clearly be medicinal preparations within the meaning of Section 2(g) of the Act; and if so, they would be liable to be taxed under the Schedule to the Act and not under the various Excise Acts of the different States concerned. It is only necessary to add that the definition of "medicinal preparation" contained in Section 2(g) of the Act, does not depart from the meaning of that expression when it occurs in Item 84 of List I, and hence on the Act coming into force, the States lost the power to levy excise duty on these preparationsOn a consideration of the material that has been placed before us, therefore, the only conclusion to which we can come is that these preparations are medicinal preparations according to the standard Ayurvedic text books referred to already, though they are also capable of being used as ordinary alcoholic beverages. They will therefore clearly fall within the definition of "medicinal preparation" and would be liable to duty under Item 1 of the Schedule to the Act. So far as the decision of the Standing Committee is concerned which resulted in the omission of these three preparations from the list attached to the Rules, that is not conclusive on the question whether these are medicinal preparations or not. Further the fact that these preparations are omitted from the list attached to the Rules would make no difference to their being medicinal preparations within the meaning of the Act, liable to duty under Item 1 of the Schedule, if they are in fact medicinal preparations as we hold them to be. They will therefore be liable to duty under Item 1 of the Schedule to the Act as they undoubtedly fall under that item and are capable of being consumed as ordinary alcoholic beverages. They cannot however be taxed under the various Excise Acts in force in the concerned States in view of their being medicinal preparations which are governed by the ActNothing has been brought on the record to show that these preparations were analysed and the analysis showed that the ingredients mentioned in the Ayurvedic text books were not present in the preparations. Besides, as it appears from the West Bengal Rules (ref. West Bengal Excise Compilation, Pt. 2) which we have quoted above, these preparations are prepared in bond and there are various restrictions before the issue of the preparations by the manufacturer. Nothing has been said to show that these preparations are not in fact made in accordance with the direction contained in the Ayurvedic text books. If this was not so, the excise staff would be there to check their preparation. As a matter of fact the first rule with respect to the manufacture of these preparations in the West Bengal Excise Compilation lays down that they will be prepared according to the recipe and direction in Arka Prakash, Ayurved Sangraha and; and if that rule is being disobeyed we should have expected some one to swear that though the rule says that the preparations should be made according to the directions in these text books, they are in fact not so made. Further if the rule is being contravened, there must be power in the State Government to take action against those who contravene the rule. But nothing has been brought to our notice to show that any action has been taken. In these circumstances we are not prepared to hold that these preparations are not prepared according to the Ayurvedic text books; and in any case our decision holding these three preparations as medicinal preparations is based on these preparations being made in accordance with the directions contained in the Ayurvedic text books and also in accordance with the Rules in the West Bengal Excise Compilation. We presume that the same must be the state of affairs in other States where these preparations are manufactured, though it appears that the petitioners in the present case are mostly from Calcutta and the manufacture in these cases must be going on Calcutta. | 1 | 6,318 | 1,159 | ### Instruction:
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that any action on the lines suggested by the Committee was taken by the Government of India. In these circumstances we have on the one side the three standard Ayurvedic text books according to which these preparations are prepared; we have also the affidavits of a large number of Ayurvedic practitioners of obvious repute to the effect that these preparations are medicinal preparations which are used to alleviate human suffering in certain conditions. On the other hand, there is no affidavit from an Ayurvedic expert on behalf of the respondents. We may however in this connection refer to an affidavit of the Assistant Chemical Examiner to the Government of West Bengal who is experienced in examining and analysing alcoholic liquors. According to him, the chief basis of these three preparations is molasses and gur, which is a fact as we have already pointed out from the recipe in the Ayurvedic text books. He further says that in these three preparations there are several steam volatile products, namely, furfural, aldohydes, ketones and acids but the presence of the same does not destroy or minimise the effect of alcoholic intoxication of these preparations. He further says that the taste or smell of these preparations does not make them unfit for drinking in a large dose and they can be used as an alcoholic beverage. Even this affidavit does not say that these are not medicinal preparations. All that it says is that these preparations contain about 42 per centum of alcohol and can be used as ordinary alcoholic beverages. So if these preparations are medicinal preparations but are also capable of being used as ordinary alcoholic beverages, they will fall under the Act and will be liable to duty under Item No. 1 of the Schedule at the rate of Rs. 17.50 np per gallon of the strength of London proof spirit. On a consideration of the material that has been placed before us, therefore, the only conclusion to which we can come is that these preparations are medicinal preparations according to the standard Ayurvedic text books referred to already, though they are also capable of being used as ordinary alcoholic beverages. They will therefore clearly fall within the definition of "medicinal preparation" and would be liable to duty under Item 1 of the Schedule to the Act. So far as the decision of the Standing Committee is concerned which resulted in the omission of these three preparations from the list attached to the Rules, that is not conclusive on the question whether these are medicinal preparations or not. Further the fact that these preparations are omitted from the list attached to the Rules would make no difference to their being medicinal preparations within the meaning of the Act, liable to duty under Item 1 of the Schedule, if they are in fact medicinal preparations as we hold them to be. They will therefore be liable to duty under Item 1 of the Schedule to the Act as they undoubtedly fall under that item and are capable of being consumed as ordinary alcoholic beverages. They cannot however be taxed under the various Excise Acts in force in the concerned States in view of their being medicinal preparations which are governed by the Act. 10. Lastly, it was urged on behalf of the respondents that these preparations are not prepared according to the formulae in the Ayurvedic text books referred to above. That is a question of fact which it is not possible for us to decide on the materials placed before us. The averment in this connection on behalf of the respondents is also not categorical; for example, it has been stated on behalf of the Union of India that it is not admitted that these preparations are prepared according to the specifications by utilising the proper ingredients and are manufactured according to the recipe and direction given in the Ayurvedic text books referred to above. Nothing has been brought on the record to show that these preparations were analysed and the analysis showed that the ingredients mentioned in the Ayurvedic text books were not present in the preparations. Besides, as it appears from the West Bengal Rules (ref. West Bengal Excise Compilation, Pt. 2) which we have quoted above, these preparations are prepared in bond and there are various restrictions before the issue of the preparations by the manufacturer. Nothing has been said to show that these preparations are not in fact made in accordance with the direction contained in the Ayurvedic text books. If this was not so, the excise staff would be there to check their preparation. As a matter of fact the first rule with respect to the manufacture of these preparations in the West Bengal Excise Compilation lays down that they will be prepared according to the recipe and direction in Arka Prakash, Ayurved Sangraha and Bhaisajya-Ratnabali; and if that rule is being disobeyed we should have expected some one to swear that though the rule says that the preparations should be made according to the directions in these text books, they are in fact not so made. Further if the rule is being contravened, there must be power in the State Government to take action against those who contravene the rule. But nothing has been brought to our notice to show that any action has been taken. In these circumstances we are not prepared to hold that these preparations are not prepared according to the Ayurvedic text books; and in any case our decision holding these three preparations as medicinal preparations is based on these preparations being made in accordance with the directions contained in the Ayurvedic text books and also in accordance with the Rules in the West Bengal Excise Compilation. We presume that the same must be the state of affairs in other States where these preparations are manufactured, though it appears that the petitioners in the present case are mostly from Calcutta and the manufacture in these cases must be going on Calcutta.
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can have any relevance on the question of correspondence. Various Excise Acts of the States in so far as they impose duties on medicinal and toilet preparations containing alcohol are fiscal statutes for taxing these preparations. Now, the Act is a fiscal statute for taxing these preparations enacted by Parliament under Entry 84 of List I of the Seventh Schedule to the Constitution, and therefore the Excise Acts which were the corresponding taxing statutes for these preparations must be held to be repealed so far as taxation on these preparations is concerned. There can therefore be no doubt that there is correspondence between the Act and the various Excise Acts of the various States in so far as levy of duty on medicinal and toilet preparations is concerned and Section 21 of the Act repeals all the Excise Acts of the States so far as such levy is concerned. There can thus be no question of medicinal and toilet preparations being liable to duty under the Act as well as the various Excise Acts in force in the States. This contention is hereby rejectedThere seems no reason therefore not to accept the affidavits filed on behalf of the petitioners from qualified Ayurvedic practitioners : series F to F16. These Ayurvedic practitioners are not connected with the petitioners and what they say in their affidavits is in accordance with the use to which these preparations can be put as medicines according to the three Ayurvedic text books already referred to. In these circumstances it would in our opinion be impossible to say that these preparations are not remedies prepared for internal use of human beings and are not intended to be used for or in the treatment, mitigation or prevention of disease in human beings. If therefore they are a remedy prepared for internal use of human beings and are intended to be used for or in the treatment, mitigation and prevention of disease in human beings, they would clearly be medicinal preparations within the meaning of Section 2(g) of the Act; and if so, they would be liable to be taxed under the Schedule to the Act and not under the various Excise Acts of the different States concerned. It is only necessary to add that the definition of "medicinal preparation" contained in Section 2(g) of the Act, does not depart from the meaning of that expression when it occurs in Item 84 of List I, and hence on the Act coming into force, the States lost the power to levy excise duty on these preparationsOn a consideration of the material that has been placed before us, therefore, the only conclusion to which we can come is that these preparations are medicinal preparations according to the standard Ayurvedic text books referred to already, though they are also capable of being used as ordinary alcoholic beverages. They will therefore clearly fall within the definition of "medicinal preparation" and would be liable to duty under Item 1 of the Schedule to the Act. So far as the decision of the Standing Committee is concerned which resulted in the omission of these three preparations from the list attached to the Rules, that is not conclusive on the question whether these are medicinal preparations or not. Further the fact that these preparations are omitted from the list attached to the Rules would make no difference to their being medicinal preparations within the meaning of the Act, liable to duty under Item 1 of the Schedule, if they are in fact medicinal preparations as we hold them to be. They will therefore be liable to duty under Item 1 of the Schedule to the Act as they undoubtedly fall under that item and are capable of being consumed as ordinary alcoholic beverages. They cannot however be taxed under the various Excise Acts in force in the concerned States in view of their being medicinal preparations which are governed by the ActNothing has been brought on the record to show that these preparations were analysed and the analysis showed that the ingredients mentioned in the Ayurvedic text books were not present in the preparations. Besides, as it appears from the West Bengal Rules (ref. West Bengal Excise Compilation, Pt. 2) which we have quoted above, these preparations are prepared in bond and there are various restrictions before the issue of the preparations by the manufacturer. Nothing has been said to show that these preparations are not in fact made in accordance with the direction contained in the Ayurvedic text books. If this was not so, the excise staff would be there to check their preparation. As a matter of fact the first rule with respect to the manufacture of these preparations in the West Bengal Excise Compilation lays down that they will be prepared according to the recipe and direction in Arka Prakash, Ayurved Sangraha and; and if that rule is being disobeyed we should have expected some one to swear that though the rule says that the preparations should be made according to the directions in these text books, they are in fact not so made. Further if the rule is being contravened, there must be power in the State Government to take action against those who contravene the rule. But nothing has been brought to our notice to show that any action has been taken. In these circumstances we are not prepared to hold that these preparations are not prepared according to the Ayurvedic text books; and in any case our decision holding these three preparations as medicinal preparations is based on these preparations being made in accordance with the directions contained in the Ayurvedic text books and also in accordance with the Rules in the West Bengal Excise Compilation. We presume that the same must be the state of affairs in other States where these preparations are manufactured, though it appears that the petitioners in the present case are mostly from Calcutta and the manufacture in these cases must be going on Calcutta.
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Prakash Chandra Vs. Angadlal and Others | agreement for sale dated September 11, 1956, the appellant became entitled to a sale of the land on payment of Rs. 4000. Thereafter, he executed the document dated November 18, 1957 which provides :"Civil Suit No. 13-A of 1956 which is filed by you in the Court of the Second Additional Judge, Amravati, is being amicably settled. If according to that settlement your ownership over the suit plot is confirmed and you get possession of the site of 1000 square feet, I shall pay you the balance of Rs. 1000 as agreed and shall get a sale deed executed from you according to the agreement of sale and you will execute it. But if according to the settlement your ownership over the aforesaid plot is not confirmed and you are not able to get possession of the site then you may refund my earnest amount of Rs. 3000. I have given this letter so that you should settle the suit amicably. Dated November 18, 1957."7. The suit was settled in terms of the decree passed in it. Under that decree Mohsinali and Qurban Hussain were held entitled to ownership and delivery of possession. The decree did not stipulate that the dispute in the suit should be settled by a sale of the land in favour of the first and second respondents. The sale deed dated December 6, 1957, executed in their favour was not contemplated at all by the decree. On the decree being passed, the terms of the document dated November 18, 1957 took effect in favour of the appellant at once, and he became entitled to the transfer of the site in his favour. The sale in favour of the first and second respondents was made even before the decree was passed, and was completely opposed to the obligations of the vendors incurred under the document dated November 18, 1957 read with the agreement for sale dated September 11, 1956. In our opinion, the High Court has erred in holding that the sale deed dated December 6, 1957 amounted to an amicable settlement of the suit, and that it was the settlement contemplated by the appellant when executing the document date November 18, 1957. The finding of the learned District Judge that the sale effected under the deed dated December 6, 1957 amounts to a breach of contract by the vendors is plainly right.8. The next question is whether the relief of specific performance being a discretionary relief granted in equity should be refused to the appellant.9. The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured and unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that the performance of the contract would involve the respondents in some hardship which they did not foresee. In our opinion, there is no reason why the appellant should not be granted the relief of specific performance. An application has been filed before us by the first and second respondent alleging that the said respondents had raised certain constructions on the site during the pendency of the litigation and, therefore, specific relief should not be granted to the appellant. It is denied by the appellant that any permanent constructions have been erected on the land in dispute. It is said that a temporary wooden structure only has been put up on a portion of the land. The respondents have attempted to show by reference to a map and photographs that permanent constructions have been made on the site. Having regard to the materials before us, we are unable to hold that any permanent constructions have been raised on the said land. If the first and second respondents have in fact raised any constructions on the site, it will be open to them to remove the building material when possession is delivered to the appellant.10. It is urged by learned counsel for the first and second respondents that the contract for sale contains a clause for payment of damages in case of breach of the contract and that, therefore, damages should be awarded instead of specific performance. A perusal of there terms of the contract indicates that the stipulation for damages was made only for the purpose of securing performance of the contract and not for the purpose of giving an option to Mohsinali and Qurban Hussain of paying money in lieu of specific performance. Even if a sum has been named in the contract for sale as the amount to be paid in case of a breach the appellant is entitled in law to the enforcement of the agreement.11. It is then urged on behalf of the respondents that the land is not sufficiently defined in the plaint and cannot be identified, and, therefore, no relief can be granted to the appellant. That objection was not raised in the pleadings, and we see no reason why it should be allowed to be raised at this stage. On the contrary, it appears that the parties were never in doubt as to the identify of the land over which they were in dispute.12. An attempt was made to contend that the present appeal is barred by limitation, but it has not been proved that that is so.13. It may be pointed out that during the pendency of the second appeal in the High Court Mohsinali died. His legal representatives have been brought on the record and set forth collectively as respondents 3. | 1[ds]7. The suit was settled in terms of the decree passed in it. Under that decree Mohsinali and Qurban Hussain were held entitled to ownership and delivery of possession. The decree did not stipulate that the dispute in the suit should be settled by a sale of the land in favour of the first and second respondents. The sale deed dated December 6, 1957, executed in their favour was not contemplated at all by the decree. On the decree being passed, the terms of the document dated November 18, 1957 took effect in favour of the appellant at once, and he became entitled to the transfer of the site in his favour. The sale in favour of the first and second respondents was made even before the decree was passed, and was completely opposed to the obligations of the vendors incurred under the document dated November 18, 1957 read with the agreement for sale dated September 11, 1956. In our opinion, the High Court has erred in holding that the sale deed dated December 6, 1957 amounted to an amicable settlement of the suit, and that it was the settlement contemplated by the appellant when executing the document date November 18, 1957. The finding of the learned District Judge that the sale effected under the deed dated December 6, 1957 amounts to a breach of contract by the vendors is plainlyregard to the materials before us, we are unable to hold that any permanent constructions have been raised on the said land. If the first and second respondents have in fact raised any constructions on the site, it will be open to them to remove the building material when possession is delivered to the appellant.An attempt was made to contend that the present appeal is barred by limitation, but it has not been proved that that is so.13. It may be pointed out that during the pendency of the second appeal in the High Court Mohsinali died. His legal representatives have been brought on the record and set forth collectively as respondents 3. | 1 | 2,045 | 375 | ### Instruction:
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agreement for sale dated September 11, 1956, the appellant became entitled to a sale of the land on payment of Rs. 4000. Thereafter, he executed the document dated November 18, 1957 which provides :"Civil Suit No. 13-A of 1956 which is filed by you in the Court of the Second Additional Judge, Amravati, is being amicably settled. If according to that settlement your ownership over the suit plot is confirmed and you get possession of the site of 1000 square feet, I shall pay you the balance of Rs. 1000 as agreed and shall get a sale deed executed from you according to the agreement of sale and you will execute it. But if according to the settlement your ownership over the aforesaid plot is not confirmed and you are not able to get possession of the site then you may refund my earnest amount of Rs. 3000. I have given this letter so that you should settle the suit amicably. Dated November 18, 1957."7. The suit was settled in terms of the decree passed in it. Under that decree Mohsinali and Qurban Hussain were held entitled to ownership and delivery of possession. The decree did not stipulate that the dispute in the suit should be settled by a sale of the land in favour of the first and second respondents. The sale deed dated December 6, 1957, executed in their favour was not contemplated at all by the decree. On the decree being passed, the terms of the document dated November 18, 1957 took effect in favour of the appellant at once, and he became entitled to the transfer of the site in his favour. The sale in favour of the first and second respondents was made even before the decree was passed, and was completely opposed to the obligations of the vendors incurred under the document dated November 18, 1957 read with the agreement for sale dated September 11, 1956. In our opinion, the High Court has erred in holding that the sale deed dated December 6, 1957 amounted to an amicable settlement of the suit, and that it was the settlement contemplated by the appellant when executing the document date November 18, 1957. The finding of the learned District Judge that the sale effected under the deed dated December 6, 1957 amounts to a breach of contract by the vendors is plainly right.8. The next question is whether the relief of specific performance being a discretionary relief granted in equity should be refused to the appellant.9. The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured and unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that the performance of the contract would involve the respondents in some hardship which they did not foresee. In our opinion, there is no reason why the appellant should not be granted the relief of specific performance. An application has been filed before us by the first and second respondent alleging that the said respondents had raised certain constructions on the site during the pendency of the litigation and, therefore, specific relief should not be granted to the appellant. It is denied by the appellant that any permanent constructions have been erected on the land in dispute. It is said that a temporary wooden structure only has been put up on a portion of the land. The respondents have attempted to show by reference to a map and photographs that permanent constructions have been made on the site. Having regard to the materials before us, we are unable to hold that any permanent constructions have been raised on the said land. If the first and second respondents have in fact raised any constructions on the site, it will be open to them to remove the building material when possession is delivered to the appellant.10. It is urged by learned counsel for the first and second respondents that the contract for sale contains a clause for payment of damages in case of breach of the contract and that, therefore, damages should be awarded instead of specific performance. A perusal of there terms of the contract indicates that the stipulation for damages was made only for the purpose of securing performance of the contract and not for the purpose of giving an option to Mohsinali and Qurban Hussain of paying money in lieu of specific performance. Even if a sum has been named in the contract for sale as the amount to be paid in case of a breach the appellant is entitled in law to the enforcement of the agreement.11. It is then urged on behalf of the respondents that the land is not sufficiently defined in the plaint and cannot be identified, and, therefore, no relief can be granted to the appellant. That objection was not raised in the pleadings, and we see no reason why it should be allowed to be raised at this stage. On the contrary, it appears that the parties were never in doubt as to the identify of the land over which they were in dispute.12. An attempt was made to contend that the present appeal is barred by limitation, but it has not been proved that that is so.13. It may be pointed out that during the pendency of the second appeal in the High Court Mohsinali died. His legal representatives have been brought on the record and set forth collectively as respondents 3.
### Response:
1
### Explanation:
7. The suit was settled in terms of the decree passed in it. Under that decree Mohsinali and Qurban Hussain were held entitled to ownership and delivery of possession. The decree did not stipulate that the dispute in the suit should be settled by a sale of the land in favour of the first and second respondents. The sale deed dated December 6, 1957, executed in their favour was not contemplated at all by the decree. On the decree being passed, the terms of the document dated November 18, 1957 took effect in favour of the appellant at once, and he became entitled to the transfer of the site in his favour. The sale in favour of the first and second respondents was made even before the decree was passed, and was completely opposed to the obligations of the vendors incurred under the document dated November 18, 1957 read with the agreement for sale dated September 11, 1956. In our opinion, the High Court has erred in holding that the sale deed dated December 6, 1957 amounted to an amicable settlement of the suit, and that it was the settlement contemplated by the appellant when executing the document date November 18, 1957. The finding of the learned District Judge that the sale effected under the deed dated December 6, 1957 amounts to a breach of contract by the vendors is plainlyregard to the materials before us, we are unable to hold that any permanent constructions have been raised on the said land. If the first and second respondents have in fact raised any constructions on the site, it will be open to them to remove the building material when possession is delivered to the appellant.An attempt was made to contend that the present appeal is barred by limitation, but it has not been proved that that is so.13. It may be pointed out that during the pendency of the second appeal in the High Court Mohsinali died. His legal representatives have been brought on the record and set forth collectively as respondents 3.
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Bhagirath Agarwal Vs. Simplex Concrete and Piles (I) Pvt. Ltd. and Ors | Kurian Joseph, J.C.A. Nos. 7544-7546/20081. The Appellant is aggrieved since he has been denied interest for the arrears of rent vide order dated 22.05.2006 passed by the City Civil Court at Calcutta in the Ejectment Suit No. 717 of 1992. To the extent relevant, the order reads as follows:That the petitions filed by the Defendant Under Section 17(2) and 17(2A) (b) of the West Bengal Premises Tenancy Act are allowed on contest without any cost. The petition filed by the Defendant for abatement of rent is dismissed on contest. The Defendant is a defaulter in payment of rent since November, 1990 @ Rs. 19,000/- per month. Thus the total defaulting period is 186 months i.e. since November, 1990 to April, 2006. Thus the total amount of rent payable by the Defendant is Rs. 19,000/- x 186 = Rs. 35,34,000/-. From the submission of the ld. Lawyer it is available that the Defendant already paid Rs. 5 lakhs as per order of the Honble Court. So the due amount is Rs. 35,34,000/- - Rs. 6,00,000/- Rs. 29,34,000/-. The Defendant is directed to pay the above said arrear rents by ten monthly installments @ Rs. 3,00,000/- per installment along with current rent. The last installment will be Rs. 2,34,000/-. Each installment is to be paid within the last working day of each month. The first installment is to be paid by 30th June, 2006.2. Since the Appellant was denied interest, the matter was pursued before the High Court. However, the High Court declined to interfere with the order passed by the City Civil Court and hence this appeal.3. It is not in dispute that the Respondent/tenant was permitted to pay the arrears of rent in installments. No doubt, there was a defence taken by the Respondent that the default in payment of the arrears of rent was on account of the conduct of the Appellant/landlord in denying amenities. Yet the City Civil Court has directed the Respondent/tenant to pay the arrears of rent in installments and there was no appeal at the instance of the Respondent/tenant.4. The view adopted by the City Civil Court seems to be that there is a discretion vest in the Court and in exercise of that discretion, taking note of the conduct of the landlord, the City Civil Court thought it fit to deny interest and permitted payment of only the defaulted arrears.5. We are afraid, the view cannot be sustained. Section 17 (2A) of the West Bengal Premises Tenancy Act, 1956 reads as follows:Provided that where payment is permitted by installments, such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under this Sub-section is to be made with interest on any such amount calculated at the rate specified in Sub-section (1) from the date when such amount was payable upto the date of such order.6. The statutory provision is very clear. Whenever payment of rent including arrears is permitted to be paid in installments, the Statute contemplates that the beneficiary shall be granted interest. This is irrespective of the justification or explanation, if any, available for the non-payment. No doubt, Under Section 34 in case the landlord has refused to provide the amenities and in case the tenant spent money for providing the amenities, the said amount, subject to the conditions therein, can be set off. Though, there is such a case set up by the tenant, yet no set off has been granted by the Trial Court, and the tenant was permitted to pay the dues in installments. Once the arrears are permitted to be paid in installments, there is no discretion available with the Court to deny interest. It is not a discretionary relief; it is the statutory right and entitlement of the landlord to get interest. | 1[ds]3. It is not in dispute that the Respondent/tenant was permitted to pay the arrears of rent in installments. No doubt, there was a defence taken by the Respondent that the default in payment of the arrears of rent was on account of the conduct of the Appellant/landlord in denying amenities. Yet the City Civil Court has directed the Respondent/tenant to pay the arrears of rent in installments and there was no appeal at the instance of the Respondent/tenant4. The view adopted by the City Civil Court seems to be that there is a discretion vest in the Court and in exercise of that discretion, taking note of the conduct of the landlord, the City Civil Court thought it fit to deny interest and permitted payment of only the defaulted arrears5. We are afraid, the view cannot be sustained6. The statutory provision is very clear. Whenever payment of rent including arrears is permitted to be paid in installments, the Statute contemplates that the beneficiary shall be granted interest. This is irrespective of the justification or explanation, if any, available for the non-payment. No doubt, Under Section 34 in case the landlord has refused to provide the amenities and in case the tenant spent money for providing the amenities, the said amount, subject to the conditions therein, can be set off. Though, there is such a case set up by the tenant, yet no set off has been granted by the Trial Court, and the tenant was permitted to pay the dues in installments. Once the arrears are permitted to be paid in installments, there is no discretion available with the Court to deny interest. It is not a discretionary relief; it is the statutory right and entitlement of the landlord to get interest. | 1 | 734 | 327 | ### 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:
Kurian Joseph, J.C.A. Nos. 7544-7546/20081. The Appellant is aggrieved since he has been denied interest for the arrears of rent vide order dated 22.05.2006 passed by the City Civil Court at Calcutta in the Ejectment Suit No. 717 of 1992. To the extent relevant, the order reads as follows:That the petitions filed by the Defendant Under Section 17(2) and 17(2A) (b) of the West Bengal Premises Tenancy Act are allowed on contest without any cost. The petition filed by the Defendant for abatement of rent is dismissed on contest. The Defendant is a defaulter in payment of rent since November, 1990 @ Rs. 19,000/- per month. Thus the total defaulting period is 186 months i.e. since November, 1990 to April, 2006. Thus the total amount of rent payable by the Defendant is Rs. 19,000/- x 186 = Rs. 35,34,000/-. From the submission of the ld. Lawyer it is available that the Defendant already paid Rs. 5 lakhs as per order of the Honble Court. So the due amount is Rs. 35,34,000/- - Rs. 6,00,000/- Rs. 29,34,000/-. The Defendant is directed to pay the above said arrear rents by ten monthly installments @ Rs. 3,00,000/- per installment along with current rent. The last installment will be Rs. 2,34,000/-. Each installment is to be paid within the last working day of each month. The first installment is to be paid by 30th June, 2006.2. Since the Appellant was denied interest, the matter was pursued before the High Court. However, the High Court declined to interfere with the order passed by the City Civil Court and hence this appeal.3. It is not in dispute that the Respondent/tenant was permitted to pay the arrears of rent in installments. No doubt, there was a defence taken by the Respondent that the default in payment of the arrears of rent was on account of the conduct of the Appellant/landlord in denying amenities. Yet the City Civil Court has directed the Respondent/tenant to pay the arrears of rent in installments and there was no appeal at the instance of the Respondent/tenant.4. The view adopted by the City Civil Court seems to be that there is a discretion vest in the Court and in exercise of that discretion, taking note of the conduct of the landlord, the City Civil Court thought it fit to deny interest and permitted payment of only the defaulted arrears.5. We are afraid, the view cannot be sustained. Section 17 (2A) of the West Bengal Premises Tenancy Act, 1956 reads as follows:Provided that where payment is permitted by installments, such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under this Sub-section is to be made with interest on any such amount calculated at the rate specified in Sub-section (1) from the date when such amount was payable upto the date of such order.6. The statutory provision is very clear. Whenever payment of rent including arrears is permitted to be paid in installments, the Statute contemplates that the beneficiary shall be granted interest. This is irrespective of the justification or explanation, if any, available for the non-payment. No doubt, Under Section 34 in case the landlord has refused to provide the amenities and in case the tenant spent money for providing the amenities, the said amount, subject to the conditions therein, can be set off. Though, there is such a case set up by the tenant, yet no set off has been granted by the Trial Court, and the tenant was permitted to pay the dues in installments. Once the arrears are permitted to be paid in installments, there is no discretion available with the Court to deny interest. It is not a discretionary relief; it is the statutory right and entitlement of the landlord to get interest.
### Response:
1
### Explanation:
3. It is not in dispute that the Respondent/tenant was permitted to pay the arrears of rent in installments. No doubt, there was a defence taken by the Respondent that the default in payment of the arrears of rent was on account of the conduct of the Appellant/landlord in denying amenities. Yet the City Civil Court has directed the Respondent/tenant to pay the arrears of rent in installments and there was no appeal at the instance of the Respondent/tenant4. The view adopted by the City Civil Court seems to be that there is a discretion vest in the Court and in exercise of that discretion, taking note of the conduct of the landlord, the City Civil Court thought it fit to deny interest and permitted payment of only the defaulted arrears5. We are afraid, the view cannot be sustained6. The statutory provision is very clear. Whenever payment of rent including arrears is permitted to be paid in installments, the Statute contemplates that the beneficiary shall be granted interest. This is irrespective of the justification or explanation, if any, available for the non-payment. No doubt, Under Section 34 in case the landlord has refused to provide the amenities and in case the tenant spent money for providing the amenities, the said amount, subject to the conditions therein, can be set off. Though, there is such a case set up by the tenant, yet no set off has been granted by the Trial Court, and the tenant was permitted to pay the dues in installments. Once the arrears are permitted to be paid in installments, there is no discretion available with the Court to deny interest. It is not a discretionary relief; it is the statutory right and entitlement of the landlord to get interest.
|
Paschimanchal Vidyut Vitran Nigam Ld.&Or Vs. M/S Adarsh Textiles | Act of 2003 that to grant subsidy to any consumer or class of consumers is the prerogative of the State Government and such other direction issued in the public interest shall be binding upon the Commission. 26. When we consider the policy decision of the State Government dated 14.6.2006 read with communications dated 6.10.2006, dated 24.2.2007 and lastly dated 1.5.2007, the State Government never intended to extend the benefit of the subsidy to HV-2 category consumers. It had not made any provision for extending subsidy to HV-2 consumers. The Commission in order dated 11.7.2006 itself has confined the tariff respite to LMV-2 and LMV-6 consumers. It was not open to the Commission to issue clarification dated 14-15/9/2006, as the matter of providing subsidy was clearly prerogative of the State Government under the provisions of Section 65 read with Section 108 of the Act of 2003 and Section 12 of Reforms Act, 1999 hence Commission could not have accepted on its own, or directed the State Government to release the subsidy to HV-2 consumers and that too unilaterally. 27. When we read the order dated 14.6.2006 it becomes clear that the State Government has granted approval for supply of electricity to "power loom bunkers on flat rate as extended to farmers". It has fixed the tariff for the loom having 60 inches reed space, Rs.65/- per loom and it will be presumed that load of loom is 0.5 H.P. and for looms having reed space of more than 60 inches, Rs.130/- per month will be charged and it will be presumed that load of the loom is 1 H.P. In additional machines in urban areas, Rs.130/HP/month would be charged and in rural area 75/HP/month would be charged. It also provided that the expenses for new meter will not be taken from consumers. 28. It can be culled out from order dated 14.6.2006 that the State Government intended the benefit to be extended to power loom weavers alike farmers. The activity of manufacturing textile is generally understood as the weaving of such textile and man who is engaged in such power loom activity is known as weaver. Weaving means: to form a fabric by interlacing yarn on a loom. It also means the method of pattern of weaving or the structure of a woven fabric, as observed by this Court in Ess Dee Carpet Enterprises v. Union of India (UOI) and Others (1990) 1 SCC 461. The State Government thus, never intended the benefit to be given to big industries like HV-2 industries. In the circumstances, it was incumbent upon the Commission to consult the State Government before passing clarification order dated 14-15/9/2006 while applying its order dated 11.7.2006 to HV-2 consumers. When the State Government has written to the Commission on 6.10.2006, thereafter there was no justification for the Commission not to recall the clarification issued on 14-15/9/2006 as it was the prerogative of the State Government to extend the benefit of subsidy to a class or particular class of consumers and subsidy being a concession could not have been enforced as a matter of right. The Commission was bound to act as per such directives of State Government.29. The submission that the State is bound by the principle of promissory estoppel to extend the benefit of subsidy to HV-2 consumers is also devoid of merit. This Court in Gujarat State Financial Corporation vs. M/s. Lotus Hotels Pvt. Ltd. [1983 (3) SCC 379 ] had referred to Motilal Padampat Sugar Mills Co. Ltd. vs. State of U.P. & Ors. [1979 (2) SCC 409 ] and observed as under : "The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not." The aforesaid principle is not attracted in the instant case as the State Government has not extended any assurance by its conduct much less unequivocal one, thus there was no question of the industries acting upon it. The State Government had not extended any assurance to extend the subsidy and, on the other hand, it had made its stand clear and objected to the Commissions clarification by writing a letter on 6.10.2006.30. Equally futile is the reliance upon the agreements which have been entered into for supply of electrical energy after the clarification was issued by the Commission. It was on the basis of the directive issued by the Commission that the said agreements have been entered into by the consumers with the Corporation. However, a perusal of the agreement makes it clear there is no mention as to the subsidy to be extended by the State Government. The only stipulation is that the supply would be made at the rate specified by the Commission. Thus, the agreement does not deal with the question of subsidy at all. Even otherwise the agreements can also not be said to be binding upon the State Government as the Commission/Corporation had no authority to burden the State with the subsidy when it had made no such provision for HV-2 consumers. It is a settled proposition that the assurance to form promissory estoppel must come from the person in authority having competence to extend it. The Commission and the Corporation had no jurisdiction in the matter of subsidy which is the domain of the State Government. 31. | 1[ds]It can be culled out from order dated 14.6.2006 that the State Government intended the benefit to be extended to power loom weavers alike farmers. The activity of manufacturing textile is generally understood as the weaving of such textile and man who is engaged in such power loom activity is known as weaver. Weaving means: to form a fabric by interlacing yarn on a loom. It also means the method of pattern of weaving or the structure of a woven fabric, as observed by this Court in Ess Dee Carpet Enterprises v. Union of India (UOI) and Others (1990) 1 SCC 461. The State Government thus, never intended the benefit to be given to big industries like HV-2 industries. In the circumstances, it was incumbent upon the Commission to consult the State Government before passing clarification order dated 14-15/9/2006 while applying its order dated 11.7.2006 to HV-2 consumers. When the State Government has written to the Commission on 6.10.2006, thereafter there was no justification for the Commission not to recall the clarification issued on 14-15/9/2006 as it was the prerogative of the State Government to extend the benefit of subsidy to a class or particular class of consumers and subsidy being a concession could not have been enforced as a matter of right. The Commission was bound to act as per such directives of State Government.29. The submission that the State is bound by the principle of promissory estoppel to extend the benefit of subsidy to HV-2 consumers is also devoid of merit. This Court in Gujarat State Financial Corporation vs. M/s. Lotus Hotels Pvt. Ltd. [1983 (3) SCC 379 ] had referred to Motilal Padampat Sugar Mills Co. Ltd. vs. State of U.P. & Ors. [1979 (2) SCC 409 ] and observed as undertrue principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties oraforesaid principle is not attracted in the instant case as the State Government has not extended any assurance by its conduct much less unequivocal one, thus there was no question of the industries acting upon it. The State Government had not extended any assurance to extend the subsidy and, on the other hand, it had made its stand clear and objected to the Commissions clarification by writing a letter on 6.10.2006.30. Equally futile is the reliance upon the agreements which have been entered into for supply of electrical energy after the clarification was issued by the Commission. It was on the basis of the directive issued by the Commission that the said agreements have been entered into by the consumers with the Corporation. However, a perusal of the agreement makes it clear there is no mention as to the subsidy to be extended by the State Government. The only stipulation is that the supply would be made at the rate specified by the Commission. Thus, the agreement does not deal with the question of subsidy at all. Even otherwise the agreements can also not be said to be binding upon the State Government as the Commission/Corporation had no authority to burden the State with the subsidy when it had made no such provision for HV-2 consumers. It is a settled proposition that the assurance to form promissory estoppel must come from the person in authority having competence to extend it. The Commission and the Corporation had no jurisdiction in the matter of subsidy which is the domain of the State Government. | 1 | 4,124 | 744 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Act of 2003 that to grant subsidy to any consumer or class of consumers is the prerogative of the State Government and such other direction issued in the public interest shall be binding upon the Commission. 26. When we consider the policy decision of the State Government dated 14.6.2006 read with communications dated 6.10.2006, dated 24.2.2007 and lastly dated 1.5.2007, the State Government never intended to extend the benefit of the subsidy to HV-2 category consumers. It had not made any provision for extending subsidy to HV-2 consumers. The Commission in order dated 11.7.2006 itself has confined the tariff respite to LMV-2 and LMV-6 consumers. It was not open to the Commission to issue clarification dated 14-15/9/2006, as the matter of providing subsidy was clearly prerogative of the State Government under the provisions of Section 65 read with Section 108 of the Act of 2003 and Section 12 of Reforms Act, 1999 hence Commission could not have accepted on its own, or directed the State Government to release the subsidy to HV-2 consumers and that too unilaterally. 27. When we read the order dated 14.6.2006 it becomes clear that the State Government has granted approval for supply of electricity to "power loom bunkers on flat rate as extended to farmers". It has fixed the tariff for the loom having 60 inches reed space, Rs.65/- per loom and it will be presumed that load of loom is 0.5 H.P. and for looms having reed space of more than 60 inches, Rs.130/- per month will be charged and it will be presumed that load of the loom is 1 H.P. In additional machines in urban areas, Rs.130/HP/month would be charged and in rural area 75/HP/month would be charged. It also provided that the expenses for new meter will not be taken from consumers. 28. It can be culled out from order dated 14.6.2006 that the State Government intended the benefit to be extended to power loom weavers alike farmers. The activity of manufacturing textile is generally understood as the weaving of such textile and man who is engaged in such power loom activity is known as weaver. Weaving means: to form a fabric by interlacing yarn on a loom. It also means the method of pattern of weaving or the structure of a woven fabric, as observed by this Court in Ess Dee Carpet Enterprises v. Union of India (UOI) and Others (1990) 1 SCC 461. The State Government thus, never intended the benefit to be given to big industries like HV-2 industries. In the circumstances, it was incumbent upon the Commission to consult the State Government before passing clarification order dated 14-15/9/2006 while applying its order dated 11.7.2006 to HV-2 consumers. When the State Government has written to the Commission on 6.10.2006, thereafter there was no justification for the Commission not to recall the clarification issued on 14-15/9/2006 as it was the prerogative of the State Government to extend the benefit of subsidy to a class or particular class of consumers and subsidy being a concession could not have been enforced as a matter of right. The Commission was bound to act as per such directives of State Government.29. The submission that the State is bound by the principle of promissory estoppel to extend the benefit of subsidy to HV-2 consumers is also devoid of merit. This Court in Gujarat State Financial Corporation vs. M/s. Lotus Hotels Pvt. Ltd. [1983 (3) SCC 379 ] had referred to Motilal Padampat Sugar Mills Co. Ltd. vs. State of U.P. & Ors. [1979 (2) SCC 409 ] and observed as under : "The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not." The aforesaid principle is not attracted in the instant case as the State Government has not extended any assurance by its conduct much less unequivocal one, thus there was no question of the industries acting upon it. The State Government had not extended any assurance to extend the subsidy and, on the other hand, it had made its stand clear and objected to the Commissions clarification by writing a letter on 6.10.2006.30. Equally futile is the reliance upon the agreements which have been entered into for supply of electrical energy after the clarification was issued by the Commission. It was on the basis of the directive issued by the Commission that the said agreements have been entered into by the consumers with the Corporation. However, a perusal of the agreement makes it clear there is no mention as to the subsidy to be extended by the State Government. The only stipulation is that the supply would be made at the rate specified by the Commission. Thus, the agreement does not deal with the question of subsidy at all. Even otherwise the agreements can also not be said to be binding upon the State Government as the Commission/Corporation had no authority to burden the State with the subsidy when it had made no such provision for HV-2 consumers. It is a settled proposition that the assurance to form promissory estoppel must come from the person in authority having competence to extend it. The Commission and the Corporation had no jurisdiction in the matter of subsidy which is the domain of the State Government. 31.
### Response:
1
### Explanation:
It can be culled out from order dated 14.6.2006 that the State Government intended the benefit to be extended to power loom weavers alike farmers. The activity of manufacturing textile is generally understood as the weaving of such textile and man who is engaged in such power loom activity is known as weaver. Weaving means: to form a fabric by interlacing yarn on a loom. It also means the method of pattern of weaving or the structure of a woven fabric, as observed by this Court in Ess Dee Carpet Enterprises v. Union of India (UOI) and Others (1990) 1 SCC 461. The State Government thus, never intended the benefit to be given to big industries like HV-2 industries. In the circumstances, it was incumbent upon the Commission to consult the State Government before passing clarification order dated 14-15/9/2006 while applying its order dated 11.7.2006 to HV-2 consumers. When the State Government has written to the Commission on 6.10.2006, thereafter there was no justification for the Commission not to recall the clarification issued on 14-15/9/2006 as it was the prerogative of the State Government to extend the benefit of subsidy to a class or particular class of consumers and subsidy being a concession could not have been enforced as a matter of right. The Commission was bound to act as per such directives of State Government.29. The submission that the State is bound by the principle of promissory estoppel to extend the benefit of subsidy to HV-2 consumers is also devoid of merit. This Court in Gujarat State Financial Corporation vs. M/s. Lotus Hotels Pvt. Ltd. [1983 (3) SCC 379 ] had referred to Motilal Padampat Sugar Mills Co. Ltd. vs. State of U.P. & Ors. [1979 (2) SCC 409 ] and observed as undertrue principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties oraforesaid principle is not attracted in the instant case as the State Government has not extended any assurance by its conduct much less unequivocal one, thus there was no question of the industries acting upon it. The State Government had not extended any assurance to extend the subsidy and, on the other hand, it had made its stand clear and objected to the Commissions clarification by writing a letter on 6.10.2006.30. Equally futile is the reliance upon the agreements which have been entered into for supply of electrical energy after the clarification was issued by the Commission. It was on the basis of the directive issued by the Commission that the said agreements have been entered into by the consumers with the Corporation. However, a perusal of the agreement makes it clear there is no mention as to the subsidy to be extended by the State Government. The only stipulation is that the supply would be made at the rate specified by the Commission. Thus, the agreement does not deal with the question of subsidy at all. Even otherwise the agreements can also not be said to be binding upon the State Government as the Commission/Corporation had no authority to burden the State with the subsidy when it had made no such provision for HV-2 consumers. It is a settled proposition that the assurance to form promissory estoppel must come from the person in authority having competence to extend it. The Commission and the Corporation had no jurisdiction in the matter of subsidy which is the domain of the State Government.
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I.K. MANIK Vs. STATE OF KARNATAKA | 1. Leave granted. 2. Heard the learned counsel appearing for the parties at length. 3. This is a case which reflects how the appellant has been harassed by the State of Karnataka. He was appointed as Incharge Tutor in the year 1960. After rendering the services for more than 15 years, he was suspended in the year 1976. The Director of Heath and Family Welfare revoked the suspension order on 13.12.1994 and a decision was taken to reinstate him. Thereafter, he was posted to Primary Heath Centre, Ingalahalli, Hubli Taluk, Dharwad on 06.01.1995. 4. The Medical Officer, Inglahalli wrote a letter to Respondent No. 2 seeking his guidance regarding annual increments, leave and other benefits to the appellant. The appellant filed a representation, however, nothing was done. Ultimately, on attaining the age of superannuation, the appellant retired from service on 31.05.1999. The appellant, thereafter, approached the State Government by way of an appeal under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. 5. The Medical Officer, Inglahalli, wrote a letter to the District Health and Family Welfare Officer on 11.01.2008 informing that pension of Rs. 1075/- per month was sanctioned and Rs. 35,456/- payable as Gratuity was withheld on account of the disciplinary action. As the pension was withheld, the appellant submitted a representation on 28.08.2011. Aggrieved by the inaction, the appellant filed an original application before the Tribunal praying for the relief of regularisation of the period of suspension from 01.03.1976 TO 13.12.1994 as the period spent on duty and release the pension and other benefits also. The Tribunal dismissed the original application on the ground of delay. 6. Aggrieved by the dismissal order of the Tribunal, the appellant approached the High Court by way of filing a Writ Petition, being W.P.(C) No. 107172 of 2017. The same has been decided by the impugned order dated 12.12.2017. The High Court has also dismissed the writ petition on the ground of delay. 7. We have heard the learned counsel for the parties at length. In our opinion, the original application and the writ application filed by the appellant could not have been dismissed by the Tribunal and the High Court on the ground of delay. When the appellant had retired on attaining the age of superannuation in the year 1999, it was incumbent upon the respondent-State to regularise the period of suspension by passing the requisite order under the fundamental rules. That has not been done. It was a lapse on the part of the employer. The employer was required to regularise the aforesaid period as no punishment had been imposed and the appellant had been kept under suspension for the aforesaid period in question. | 1[ds]7. We have heard the learned counsel for the parties at length. In our opinion, the original application and the writ application filed by the appellant could not have been dismissed by the Tribunal and the High Court on the ground of delay. When the appellant had retired on attaining the age of superannuation in the year 1999, it was incumbent upon the respondent-State to regularise the period of suspension by passing the requisite order under the fundamental rules. That has not been done. It was a lapse on the part of the employer. The employer was required to regularise the aforesaid period as no punishment had been imposed and the appellant had been kept under suspension for the aforesaid period in question. | 1 | 514 | 136 | ### 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:
1. Leave granted. 2. Heard the learned counsel appearing for the parties at length. 3. This is a case which reflects how the appellant has been harassed by the State of Karnataka. He was appointed as Incharge Tutor in the year 1960. After rendering the services for more than 15 years, he was suspended in the year 1976. The Director of Heath and Family Welfare revoked the suspension order on 13.12.1994 and a decision was taken to reinstate him. Thereafter, he was posted to Primary Heath Centre, Ingalahalli, Hubli Taluk, Dharwad on 06.01.1995. 4. The Medical Officer, Inglahalli wrote a letter to Respondent No. 2 seeking his guidance regarding annual increments, leave and other benefits to the appellant. The appellant filed a representation, however, nothing was done. Ultimately, on attaining the age of superannuation, the appellant retired from service on 31.05.1999. The appellant, thereafter, approached the State Government by way of an appeal under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. 5. The Medical Officer, Inglahalli, wrote a letter to the District Health and Family Welfare Officer on 11.01.2008 informing that pension of Rs. 1075/- per month was sanctioned and Rs. 35,456/- payable as Gratuity was withheld on account of the disciplinary action. As the pension was withheld, the appellant submitted a representation on 28.08.2011. Aggrieved by the inaction, the appellant filed an original application before the Tribunal praying for the relief of regularisation of the period of suspension from 01.03.1976 TO 13.12.1994 as the period spent on duty and release the pension and other benefits also. The Tribunal dismissed the original application on the ground of delay. 6. Aggrieved by the dismissal order of the Tribunal, the appellant approached the High Court by way of filing a Writ Petition, being W.P.(C) No. 107172 of 2017. The same has been decided by the impugned order dated 12.12.2017. The High Court has also dismissed the writ petition on the ground of delay. 7. We have heard the learned counsel for the parties at length. In our opinion, the original application and the writ application filed by the appellant could not have been dismissed by the Tribunal and the High Court on the ground of delay. When the appellant had retired on attaining the age of superannuation in the year 1999, it was incumbent upon the respondent-State to regularise the period of suspension by passing the requisite order under the fundamental rules. That has not been done. It was a lapse on the part of the employer. The employer was required to regularise the aforesaid period as no punishment had been imposed and the appellant had been kept under suspension for the aforesaid period in question.
### Response:
1
### Explanation:
7. We have heard the learned counsel for the parties at length. In our opinion, the original application and the writ application filed by the appellant could not have been dismissed by the Tribunal and the High Court on the ground of delay. When the appellant had retired on attaining the age of superannuation in the year 1999, it was incumbent upon the respondent-State to regularise the period of suspension by passing the requisite order under the fundamental rules. That has not been done. It was a lapse on the part of the employer. The employer was required to regularise the aforesaid period as no punishment had been imposed and the appellant had been kept under suspension for the aforesaid period in question.
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Ram Charitra Ray Vs. High Court of Patna and Another | BEG, J.1. The petitioner under Article 32 of the constitution makes the following allegations :(1) He was a Bench clerk in the Additional Sub-Judges Court Purnea, in 1967. On 20th May. 1967. the District Judge Purnea, asked for an explanation from him with regard to a land acquisition case No. 119 of 1958 as to why the record of the case was not put up expeditiously before the presiding officer and a date fixed for consideration of the Serishtedars report. He gave the explanation that he was not the dealing Assistant for land acquisition cases. On l5th June 1967, the District Judge, Purnea, rejecting the correctness of the petitioners stand, required the petitioner to show cause why his increments and promotion should not be stopped. The petitioner repeated his explanation. He was called by the District Judge on l st August, 1967 in his chamber and heard personally. On 8th August, 1967. the District Judge passed an order that the petitioners increment and promotion be stopped for two years from 1st August. 1967.(2) On 30th August. 1967, the District Judge. Purnea, drew up a list of persons promoted but did not include the name of the petitioner in it. The petitioner appealed to the High Court. By its letter dated 10th September. 1970, the High Court allowed it and asked the District Judge to reconsider his case. On 7th November. 1970, the then District Judge of Purnea ordered that the petitioner be promoted with effect from the date from which he was entitled to such promotion subject only to the condition that he will not be entitled to arrears of salary from the date of promotion. The petitioner then made a representation to the District Judge for the alleged arrears of his salary which he had not received but this was rejected. The Petitioner again appealed to the chief Justice of the Patna High Court against the order of the District Judge passed on 7th November. 1970. refusing the arrears of salary. He represented that other Clerks had received their arrears. He also alleged that his pension would also be affected by stoppage of increments.(3) He had not approached the High Court under Article 226 of the constitution, because, he says, a Full Bench of the High court of Patna in AIR 1952 Pat 309 (FB) (in Re : Babul Mittra) had laid down that no. writ petition lay in the High Court against orders of the High Court in its administrative capacity. He alleged that he had been punished contrary to the provisions of Article 311(2) of the constitution. He also alleged violation of his fundamental right under Article 16 (1) of the constitution.2. No. one has appeared on behalf of the petitioner to explain to us how any fundamental right of the petitioner has been affected. From the reply filed on behalf of the High Court it appears that there was a very detailed order by the District Judge of Purnea setting out the responsibility of the petitioner for delaying land acquisition case No. 119 of 1958. (Mrs, Dhana Laxmi Lal v. Rasik Lal) and the payment of compensation money of Rs. 24, 140/- to the lady concerned. The circumstances indicated that the petitioner, who was incharge of the case, had acted in violation of Rule 24 and directions given to him. The finding was that he had deliberately shelved the issue of a payment order in order to harass the litigant who was running from pillar to post for redress. Presumably, his object was dishonesty. He had been punished very lightly after his case had been sent back for further opportunity to be given to him to be heard. His apea1 had been dismissed by the Chief Justice of the Patna High Court on 8th November, 1971, by a detailed order with full reasons disclosed there. | 0[ds]2. No. one has appeared on behalf of the petitioner to explain to us how any fundamental right of the petitioner has been affected. From the reply filed on behalf of the High Court it appears that there was a very detailed order by the District Judge of Purnea setting out the responsibility of the petitioner for delaying land acquisition case No. 119 of 1958. (Mrs, Dhana Laxmi Lal v. Rasik Lal) and the payment of compensation money of Rs. 24, 140/to the lady concerned. The circumstances indicated that the petitioner, who was incharge of the case, had acted in violation of Rule 24 and directions given to him. The finding was that he had deliberately shelved the issue of a payment order in order to harass the litigant who was running from pillar to post for redress. Presumably, his object was dishonesty. He had been punished very lightly after his case had been sent back for further opportunity to be given to him to be heard. His apea1 had been dismissed by the Chief Justice of the Patna High Court on 8th November, 1971, by a detailed order with full reasons disclosed there. | 0 | 721 | 219 | ### 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:
BEG, J.1. The petitioner under Article 32 of the constitution makes the following allegations :(1) He was a Bench clerk in the Additional Sub-Judges Court Purnea, in 1967. On 20th May. 1967. the District Judge Purnea, asked for an explanation from him with regard to a land acquisition case No. 119 of 1958 as to why the record of the case was not put up expeditiously before the presiding officer and a date fixed for consideration of the Serishtedars report. He gave the explanation that he was not the dealing Assistant for land acquisition cases. On l5th June 1967, the District Judge, Purnea, rejecting the correctness of the petitioners stand, required the petitioner to show cause why his increments and promotion should not be stopped. The petitioner repeated his explanation. He was called by the District Judge on l st August, 1967 in his chamber and heard personally. On 8th August, 1967. the District Judge passed an order that the petitioners increment and promotion be stopped for two years from 1st August. 1967.(2) On 30th August. 1967, the District Judge. Purnea, drew up a list of persons promoted but did not include the name of the petitioner in it. The petitioner appealed to the High Court. By its letter dated 10th September. 1970, the High Court allowed it and asked the District Judge to reconsider his case. On 7th November. 1970, the then District Judge of Purnea ordered that the petitioner be promoted with effect from the date from which he was entitled to such promotion subject only to the condition that he will not be entitled to arrears of salary from the date of promotion. The petitioner then made a representation to the District Judge for the alleged arrears of his salary which he had not received but this was rejected. The Petitioner again appealed to the chief Justice of the Patna High Court against the order of the District Judge passed on 7th November. 1970. refusing the arrears of salary. He represented that other Clerks had received their arrears. He also alleged that his pension would also be affected by stoppage of increments.(3) He had not approached the High Court under Article 226 of the constitution, because, he says, a Full Bench of the High court of Patna in AIR 1952 Pat 309 (FB) (in Re : Babul Mittra) had laid down that no. writ petition lay in the High Court against orders of the High Court in its administrative capacity. He alleged that he had been punished contrary to the provisions of Article 311(2) of the constitution. He also alleged violation of his fundamental right under Article 16 (1) of the constitution.2. No. one has appeared on behalf of the petitioner to explain to us how any fundamental right of the petitioner has been affected. From the reply filed on behalf of the High Court it appears that there was a very detailed order by the District Judge of Purnea setting out the responsibility of the petitioner for delaying land acquisition case No. 119 of 1958. (Mrs, Dhana Laxmi Lal v. Rasik Lal) and the payment of compensation money of Rs. 24, 140/- to the lady concerned. The circumstances indicated that the petitioner, who was incharge of the case, had acted in violation of Rule 24 and directions given to him. The finding was that he had deliberately shelved the issue of a payment order in order to harass the litigant who was running from pillar to post for redress. Presumably, his object was dishonesty. He had been punished very lightly after his case had been sent back for further opportunity to be given to him to be heard. His apea1 had been dismissed by the Chief Justice of the Patna High Court on 8th November, 1971, by a detailed order with full reasons disclosed there.
### Response:
0
### Explanation:
2. No. one has appeared on behalf of the petitioner to explain to us how any fundamental right of the petitioner has been affected. From the reply filed on behalf of the High Court it appears that there was a very detailed order by the District Judge of Purnea setting out the responsibility of the petitioner for delaying land acquisition case No. 119 of 1958. (Mrs, Dhana Laxmi Lal v. Rasik Lal) and the payment of compensation money of Rs. 24, 140/to the lady concerned. The circumstances indicated that the petitioner, who was incharge of the case, had acted in violation of Rule 24 and directions given to him. The finding was that he had deliberately shelved the issue of a payment order in order to harass the litigant who was running from pillar to post for redress. Presumably, his object was dishonesty. He had been punished very lightly after his case had been sent back for further opportunity to be given to him to be heard. His apea1 had been dismissed by the Chief Justice of the Patna High Court on 8th November, 1971, by a detailed order with full reasons disclosed there.
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State of Orissa Vs. Orient Paper & Industries Ltd | N. Santosh Hegde, J.Disputes having arisen between the State of Orissa and the respondent is this civil appeal, in respect of exclusive right and licence to fell, cut and remove bamboos, parties opted to go for arbitration as provided in the agreement. The disputes referred to the Arbitrator for determination are :- 1. "As provided in Note (i) under clause 10 of the Agreement, the C.C.F., Orissa had determined that 2300 mtrs. or 7475 running ft. of Salia bamboos and 600 miters. Or 1950 running ft. of Daba bamboos respectively make a tonne vide his letter No. 24755 dated 17.12.1974 (copy of which is placed in the States written argument) and the same is held to be final and binding on both parties."2. "The respondent company was entitled to a refund of Rs. 2,03,325/- for excess royalty paid."The Arbitrator by his award held as follows :- "As provided in Note (i) under clause 10 of the Agreement, the Chief Conservator of Forests has determined that 2300 metres of 7475 running feet of Salia Bamboos and 600 metres of 1950 running feet of Daba bamboos respectively make a tonne vide his letter No. 24755 dated 17.12.1974 copy of which is placed in the States written argument and the same is held to be final and binding on both parties."2. Based on the finding in dispute No. 1, he made a consequential award on the second issue. The said award of the Arbitrator was made a Rule of Court by the Judgment of the learned Sub-Judge, Bhubaneswar dated 7.8.1980 in Misc. Case No. 442/78.3. Being aggrieved by the said order of the learned Sub-Judge, respondent-company preferred Misc. Appeal No. 260/80 before the Honble High Court of Orissa at Cuttack. The High Court by its judgment dated 19th of November, 1986 allowed the Misc. Appeal setting aside the order of the Subordinate Judge as well as the award of the Arbitrator and remitted the matter back to the Arbitrator for redetermination.4. Being aggrieved by the order of the High Court referred to above, this appeal is preferred. The High Court came to the conclusion that the learned Arbitrator had not decided the disputes referred to him for arbitration. Therefore, the award was unsustainable in law. Consequently, the High Court held such an award could not have been made a rule of court by the learned Subordinate Judge. 5. Before us, Shri P.N. Misra, the learned Senior Advocate appearing for the State of Orissa contended that a perusal of the award shows that the Arbitrator had in fact concurred with the decision taken by the Chief Conservator of Forests, Orissa in regard to the methodology to be adopted for determining the quantity of bamboos cut and removed. Since the Arbitrator was agreeing with the methodology adopted by the Chief Conservator of Forests, the question of giving reasons in a non-speaking award does not arise. Therefore, the High Court ought not to have interfered with the award and the consequential order passed by the Subordinate Judge. On behalf of the respondent, Shri S.B. Sanyal, Senior Advocate contended that the High Court was right in setting aside the award in question since the learned Arbitrator had not at all decided the various points that arose in the first dispute referred to him, therefore, there was non-application of mind by the Arbitrator and consequently the dispute referred to the Arbitrator remained unanswered, hence the High Court was justified in remitting the matter back to the Arbitrator. 6. A perusal of the first dispute referred to the Arbitrator shows that he has to determine three specific points, namely, (1) Whether the decision of the Chief Conservator of Forests that 2300 metres or 7475 running feet of Salia bamboos and 600 meters or 1950 running feet of Daba bamboos would make a tonne in weight; (2) Whether this calculation is scientific; (3) Whether this calculation will apply in all cases, to take effect from 1.10.1973. 7. The award of the learned Arbitrator in regard to the first dispute referred to him merely says that the Chief Conservator had determined under Clause 10 of the Agreement that 2300 metres or 7475 running feet of Salia bamboos and 600 metres of 1950 running feet of Daba bamboos respectively make a tonne and the same is held to be final and binding on both the parties. He did not even advert to the other points. In my opinion, the High Court was right in coming to the conclusion that the learned Arbitrator did not decide the question whether the method adopted by the Chief Conservator of Forests was scientific or not. He also did not determine whether this methodology could be made applicable to all cases w.e.f. 1.10.1973. In my opinion by merely agreeing with the decision of the Chief Conservator of Forests, the Arbitrator has not addressed himself to other points arising in first dispute and has not answered those points. Therefore, in my opinion the High Court is justified in setting aside the award and remitting to back to the arbitrator. | 0[ds]8. I agree.9. I may, however, add that in this case the agreement was entered into in January, 1974. After disputes and differences arose and parties went for arbitration, the Arbitrator gave his Award on November 30, 1978. The Award was challenged by the respondent before theBhubaneshwar who upheld the Award by judgment and order dated August 7, 1980. The matter was taken in appeal before the Orissa High Court by the respondent. High Court by its judgment dated November 19, 1986 allowed the appeal holding that the Arbitrator had failed to decide the actual disputes specifically referred to him and remitted the matter to the Arbitrator for reconsideration under Section 16 of the Arbitration Act. This appeal was filed by the State of Orissa against the judgment of the High Court and it has taken more than 12 years for the decision of the appeal. However, it was not necessary that the State Government should have challenged the order of the High Court in the circumstances of the case causing unnecessary expenses to the parties and the time this Court had to spend in hearing the appeal. Had the State Government abided by the order of the High Court the matter before the Arbitration would have been completed years ago. State cannot act like a private litigant that it must challenge every order made against it. State has to be advised properly if a case required determination of this Court under Article 136 of the Constitution. | 0 | 937 | 272 | ### 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:
N. Santosh Hegde, J.Disputes having arisen between the State of Orissa and the respondent is this civil appeal, in respect of exclusive right and licence to fell, cut and remove bamboos, parties opted to go for arbitration as provided in the agreement. The disputes referred to the Arbitrator for determination are :- 1. "As provided in Note (i) under clause 10 of the Agreement, the C.C.F., Orissa had determined that 2300 mtrs. or 7475 running ft. of Salia bamboos and 600 miters. Or 1950 running ft. of Daba bamboos respectively make a tonne vide his letter No. 24755 dated 17.12.1974 (copy of which is placed in the States written argument) and the same is held to be final and binding on both parties."2. "The respondent company was entitled to a refund of Rs. 2,03,325/- for excess royalty paid."The Arbitrator by his award held as follows :- "As provided in Note (i) under clause 10 of the Agreement, the Chief Conservator of Forests has determined that 2300 metres of 7475 running feet of Salia Bamboos and 600 metres of 1950 running feet of Daba bamboos respectively make a tonne vide his letter No. 24755 dated 17.12.1974 copy of which is placed in the States written argument and the same is held to be final and binding on both parties."2. Based on the finding in dispute No. 1, he made a consequential award on the second issue. The said award of the Arbitrator was made a Rule of Court by the Judgment of the learned Sub-Judge, Bhubaneswar dated 7.8.1980 in Misc. Case No. 442/78.3. Being aggrieved by the said order of the learned Sub-Judge, respondent-company preferred Misc. Appeal No. 260/80 before the Honble High Court of Orissa at Cuttack. The High Court by its judgment dated 19th of November, 1986 allowed the Misc. Appeal setting aside the order of the Subordinate Judge as well as the award of the Arbitrator and remitted the matter back to the Arbitrator for redetermination.4. Being aggrieved by the order of the High Court referred to above, this appeal is preferred. The High Court came to the conclusion that the learned Arbitrator had not decided the disputes referred to him for arbitration. Therefore, the award was unsustainable in law. Consequently, the High Court held such an award could not have been made a rule of court by the learned Subordinate Judge. 5. Before us, Shri P.N. Misra, the learned Senior Advocate appearing for the State of Orissa contended that a perusal of the award shows that the Arbitrator had in fact concurred with the decision taken by the Chief Conservator of Forests, Orissa in regard to the methodology to be adopted for determining the quantity of bamboos cut and removed. Since the Arbitrator was agreeing with the methodology adopted by the Chief Conservator of Forests, the question of giving reasons in a non-speaking award does not arise. Therefore, the High Court ought not to have interfered with the award and the consequential order passed by the Subordinate Judge. On behalf of the respondent, Shri S.B. Sanyal, Senior Advocate contended that the High Court was right in setting aside the award in question since the learned Arbitrator had not at all decided the various points that arose in the first dispute referred to him, therefore, there was non-application of mind by the Arbitrator and consequently the dispute referred to the Arbitrator remained unanswered, hence the High Court was justified in remitting the matter back to the Arbitrator. 6. A perusal of the first dispute referred to the Arbitrator shows that he has to determine three specific points, namely, (1) Whether the decision of the Chief Conservator of Forests that 2300 metres or 7475 running feet of Salia bamboos and 600 meters or 1950 running feet of Daba bamboos would make a tonne in weight; (2) Whether this calculation is scientific; (3) Whether this calculation will apply in all cases, to take effect from 1.10.1973. 7. The award of the learned Arbitrator in regard to the first dispute referred to him merely says that the Chief Conservator had determined under Clause 10 of the Agreement that 2300 metres or 7475 running feet of Salia bamboos and 600 metres of 1950 running feet of Daba bamboos respectively make a tonne and the same is held to be final and binding on both the parties. He did not even advert to the other points. In my opinion, the High Court was right in coming to the conclusion that the learned Arbitrator did not decide the question whether the method adopted by the Chief Conservator of Forests was scientific or not. He also did not determine whether this methodology could be made applicable to all cases w.e.f. 1.10.1973. In my opinion by merely agreeing with the decision of the Chief Conservator of Forests, the Arbitrator has not addressed himself to other points arising in first dispute and has not answered those points. Therefore, in my opinion the High Court is justified in setting aside the award and remitting to back to the arbitrator.
### Response:
0
### Explanation:
8. I agree.9. I may, however, add that in this case the agreement was entered into in January, 1974. After disputes and differences arose and parties went for arbitration, the Arbitrator gave his Award on November 30, 1978. The Award was challenged by the respondent before theBhubaneshwar who upheld the Award by judgment and order dated August 7, 1980. The matter was taken in appeal before the Orissa High Court by the respondent. High Court by its judgment dated November 19, 1986 allowed the appeal holding that the Arbitrator had failed to decide the actual disputes specifically referred to him and remitted the matter to the Arbitrator for reconsideration under Section 16 of the Arbitration Act. This appeal was filed by the State of Orissa against the judgment of the High Court and it has taken more than 12 years for the decision of the appeal. However, it was not necessary that the State Government should have challenged the order of the High Court in the circumstances of the case causing unnecessary expenses to the parties and the time this Court had to spend in hearing the appeal. Had the State Government abided by the order of the High Court the matter before the Arbitration would have been completed years ago. State cannot act like a private litigant that it must challenge every order made against it. State has to be advised properly if a case required determination of this Court under Article 136 of the Constitution.
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N. Bagavathy Ammal Vs. Commissioner of Income Tax, Madurai & Another | net assets of the company in liquidation, he receives that money in satisfaction of the right which belonged to him by virtue of his holding the shares and not by operation of any transaction which amounts to sale, exchange, relinquishment or transfer within the meaning of Section 12-B of the Act. 8. Section 45(1) of the 1961 Act which substantially corresponds with Section 12-B of the 1922 Act continues to provide that: "Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as the otherwise provided in Sections 54, 54B, 54D, 54E, 54EA, 54EB, 54F, 54G and 54H be chargeable to income tax under the head Capital gains, and shall be deemed to be the income of the previous year in which the transfer took place". 9. The words capital assets has been defined in Section 2(14) of the Act which as it stood at the relevant time, that is prior to its amendment in 1972, provided: "2. In this Act, unless the context otherwise requires(14) "Capital assets means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include,(i)........................................(ii) agricultural land in India10. It has been held by this Court that the principle of Madurai Mills that a distribution of assets of a company in liquidation does not amount to a transfer continues to apply to the 1961 Act. (See Commissioner of Income Tax vs. R.M. Amin; 1977(1) SCC 691, 696).11. The view of Madurai Mills Co. Ltd. (supra) has also been statutorily affirmed in Section 46(1) which provides:46. (1) Notwithstanding anything contained in section 45, where the assets of a company are distributed to its shareholders on its liquidation, such distribution shall not be regarded as a transfer by the company for the purposes of section 45.12. In other words a distribution is drawn between a "transfer" of assets and a distribution of assets of the company on liquidation. Where there is transfer of assets and not a distribution on liquidation then having regard to Section 47(viii) which provides that "Nothing contained in Section 45 shall apply to following transfers:(viii) any transfer of agricultural land in India effected before the 1st day of March 1970". it may have been argued at least on behalf of the Company that the transfer having been concluded in 1969 was exempt from capital gains. This argument, however, is not available to the shareholders who receive assets from the company on distribution consequent upon liquidation because of Section 46(2) which was introduced to make the receipts of assets from a company liquidation by its share holders a taxable event for the first time. Section 46(2) provides: "46(2) where a shareholder on the liquidation of a company receives any money or other assets from the company, he shall be chargeable to Income tax under the head Capital gains in respect of the money so received or the market value of the other assets on the date of distribution, as reduced by the amount assessed as divided within the meaning of sub-clause (c) of clause (22) of section 2 and the sum so arrived at shall be deemed to be the full value of the consideration for the purposes of section 48". 13. The question is does the words assets in Section 46(2) mean capital assets as defined in Section 2(14) of the Act? If it does then, it is conceded by the Revenue, there is no question of subjecting the agricultural lands received by the assessees from the company in liquidation to capital gains. 14. Indisputably the object in introducing Section 46(2) was to overcome the reasoning in Madurai Mills by broadening the base of the incidence of capital gains and expressly providing for receipt of assets of a company in liquidation by a shareholder as a taxable event. 15. Section 46(2) is in terms an independent charging Section. It also provides for a distinct method of calculation of capital gains. As said in C.I.T. vs. R.M. Amin (supra): "The aforesaid section, in our view, was enacted both with a view to make shareholders liable for payment of tax on capital gains as well as to prescribe the mode of calculating the capital gains to the shareholders on the distribution of assets by a company in liquidation. But for that sub-section as already mentioned, it would have been difficult to levy tax on capital gains to the shareholders on distribution of assets by a company in liquidation." 16. The Section does not make any reference to capital assets either in connection with the imposition of capital gains tax nor its computation. 17. Having referred to capital assets in Section 45(1), 47 and 48, Parliament appears to have deliberately chosen to use the ward asset in Section 46(1) and (2), the ostensible intention being to bring assets of all kinds within the scope of the charge. It is not necessary to refer to a dictionary to hold that capital assets and assets as used in Sections 45(1) and 46 respectively did not overlap then there was no need to provide for a non obstante clause in Section 46(1) with reference to Section 45. As correctly held by the High Court, agricultural land would have been a capital asset but for the exclusion from the definition of capital asset and what is not a capital asset may yet be an asset for the purposes of S.46(2).18. Therefore, to the extent that a shareholder assessee receives assets whether capital or any other from the company in liquidation, the assessee is liable to pay tax on the market value of the assets as on the date of the distribution as provided under Section 46(2). That appears to be the plain meaning of the section and we see no reason to construe it in any other fashion. The invocation of Section 2(14) of the Act which defines "Capital asset" is as such unnecessary for the purpose of construing Section 46(2). | 0[ds]17. Having referred to capital assets in Section 45(1), 47 and 48, Parliament appears to have deliberately chosen to use the ward asset in Section 46(1) and (2), the ostensible intention being to bring assets of all kinds within the scope of the charge. It is not necessary to refer to a dictionary to hold that capital assets and assets as used in Sections 45(1) and 46 respectively did not overlap then there was no need to provide for a non obstante clause in Section 46(1) with reference to Section 45. As correctly held by the High Court, agricultural land would have been a capital asset but for the exclusion from the definition of capital asset and what is not a capital asset may yet be an asset for the purposes of S.46(2).18. Therefore, to the extent that a shareholder assessee receives assets whether capital or any other from the company in liquidation, the assessee is liable to pay tax on the market value of the assets as on the date of the distribution as provided under Section 46(2). That appears to be the plain meaning of the section and we see no reason to construe it in any other fashion. The invocation of Section 2(14) of the Act which defines "Capital asset" is as such unnecessary for the purpose of construing Section 46(2). | 0 | 2,292 | 270 | ### 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:
net assets of the company in liquidation, he receives that money in satisfaction of the right which belonged to him by virtue of his holding the shares and not by operation of any transaction which amounts to sale, exchange, relinquishment or transfer within the meaning of Section 12-B of the Act. 8. Section 45(1) of the 1961 Act which substantially corresponds with Section 12-B of the 1922 Act continues to provide that: "Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as the otherwise provided in Sections 54, 54B, 54D, 54E, 54EA, 54EB, 54F, 54G and 54H be chargeable to income tax under the head Capital gains, and shall be deemed to be the income of the previous year in which the transfer took place". 9. The words capital assets has been defined in Section 2(14) of the Act which as it stood at the relevant time, that is prior to its amendment in 1972, provided: "2. In this Act, unless the context otherwise requires(14) "Capital assets means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include,(i)........................................(ii) agricultural land in India10. It has been held by this Court that the principle of Madurai Mills that a distribution of assets of a company in liquidation does not amount to a transfer continues to apply to the 1961 Act. (See Commissioner of Income Tax vs. R.M. Amin; 1977(1) SCC 691, 696).11. The view of Madurai Mills Co. Ltd. (supra) has also been statutorily affirmed in Section 46(1) which provides:46. (1) Notwithstanding anything contained in section 45, where the assets of a company are distributed to its shareholders on its liquidation, such distribution shall not be regarded as a transfer by the company for the purposes of section 45.12. In other words a distribution is drawn between a "transfer" of assets and a distribution of assets of the company on liquidation. Where there is transfer of assets and not a distribution on liquidation then having regard to Section 47(viii) which provides that "Nothing contained in Section 45 shall apply to following transfers:(viii) any transfer of agricultural land in India effected before the 1st day of March 1970". it may have been argued at least on behalf of the Company that the transfer having been concluded in 1969 was exempt from capital gains. This argument, however, is not available to the shareholders who receive assets from the company on distribution consequent upon liquidation because of Section 46(2) which was introduced to make the receipts of assets from a company liquidation by its share holders a taxable event for the first time. Section 46(2) provides: "46(2) where a shareholder on the liquidation of a company receives any money or other assets from the company, he shall be chargeable to Income tax under the head Capital gains in respect of the money so received or the market value of the other assets on the date of distribution, as reduced by the amount assessed as divided within the meaning of sub-clause (c) of clause (22) of section 2 and the sum so arrived at shall be deemed to be the full value of the consideration for the purposes of section 48". 13. The question is does the words assets in Section 46(2) mean capital assets as defined in Section 2(14) of the Act? If it does then, it is conceded by the Revenue, there is no question of subjecting the agricultural lands received by the assessees from the company in liquidation to capital gains. 14. Indisputably the object in introducing Section 46(2) was to overcome the reasoning in Madurai Mills by broadening the base of the incidence of capital gains and expressly providing for receipt of assets of a company in liquidation by a shareholder as a taxable event. 15. Section 46(2) is in terms an independent charging Section. It also provides for a distinct method of calculation of capital gains. As said in C.I.T. vs. R.M. Amin (supra): "The aforesaid section, in our view, was enacted both with a view to make shareholders liable for payment of tax on capital gains as well as to prescribe the mode of calculating the capital gains to the shareholders on the distribution of assets by a company in liquidation. But for that sub-section as already mentioned, it would have been difficult to levy tax on capital gains to the shareholders on distribution of assets by a company in liquidation." 16. The Section does not make any reference to capital assets either in connection with the imposition of capital gains tax nor its computation. 17. Having referred to capital assets in Section 45(1), 47 and 48, Parliament appears to have deliberately chosen to use the ward asset in Section 46(1) and (2), the ostensible intention being to bring assets of all kinds within the scope of the charge. It is not necessary to refer to a dictionary to hold that capital assets and assets as used in Sections 45(1) and 46 respectively did not overlap then there was no need to provide for a non obstante clause in Section 46(1) with reference to Section 45. As correctly held by the High Court, agricultural land would have been a capital asset but for the exclusion from the definition of capital asset and what is not a capital asset may yet be an asset for the purposes of S.46(2).18. Therefore, to the extent that a shareholder assessee receives assets whether capital or any other from the company in liquidation, the assessee is liable to pay tax on the market value of the assets as on the date of the distribution as provided under Section 46(2). That appears to be the plain meaning of the section and we see no reason to construe it in any other fashion. The invocation of Section 2(14) of the Act which defines "Capital asset" is as such unnecessary for the purpose of construing Section 46(2).
### Response:
0
### Explanation:
17. Having referred to capital assets in Section 45(1), 47 and 48, Parliament appears to have deliberately chosen to use the ward asset in Section 46(1) and (2), the ostensible intention being to bring assets of all kinds within the scope of the charge. It is not necessary to refer to a dictionary to hold that capital assets and assets as used in Sections 45(1) and 46 respectively did not overlap then there was no need to provide for a non obstante clause in Section 46(1) with reference to Section 45. As correctly held by the High Court, agricultural land would have been a capital asset but for the exclusion from the definition of capital asset and what is not a capital asset may yet be an asset for the purposes of S.46(2).18. Therefore, to the extent that a shareholder assessee receives assets whether capital or any other from the company in liquidation, the assessee is liable to pay tax on the market value of the assets as on the date of the distribution as provided under Section 46(2). That appears to be the plain meaning of the section and we see no reason to construe it in any other fashion. The invocation of Section 2(14) of the Act which defines "Capital asset" is as such unnecessary for the purpose of construing Section 46(2).
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Vibhuti Glass Works Vs. Commissioner Of Income Tax, Lucknow | Vibhuti Glass Works, is a public limited company. It has a glass factory and also carried on other business. The accounts of the glass factory are closed on March 31 of each year while the assessee closes its accounts on September 30 of each year. We are concerned with the assessment year 1962-63. 3. For several years the glass factory business had been suffering losses resulting in increasing debt. It took heavy loans from the Banaras State Bank, Varanasi, for which purpose its stocks and stores were hypothecated to the Bank. It also took loans from the Uttar Pradesh Government and the land, buildings and machinery were mortgaged accordingly. The assessee found it difficult to emerge out of its financial embarrassment. It discovered also that it needed certain equipment in order to produce better quality goods and also required funds for its working capital and for repaying loans to other creditors. It approached the Industrial Finance Corporation, New Delhi, and the State Finance Corporation for financial assistance and the industrial Finance Corporation agreed to grant a loan of Rs. 20 lakhs on condition (a) that the State Government guaranteed repayment and (b) that the State Government postponed their charge under the mortgage deeds and the Industrial Financial Corporation was allowed to have the first charge. The State Government agreed to those conditions provided the assessee allowed the State Government to take over the running of the glass factory for a period of 20 years. The State Government also stipulated that if and when the profits of the business exceeded a prescribed limit, a half share of those profits would go to the State Government. The assessee agreed to this arrangement and executed a document dated August 22, 1960 incorporating the perquisite conditions. 4. For the relevant accounting period the glass factory business disclosed a profit of Rs. 92, 960 while the assessee suffered a loss of Rs. 3, 47, 656 according to its separate profit and loss account. During assessment proceedings for the assessment year 1962-63, it was contended by the assessee before the Income Tax Officer that the profit of Rs. 92, 960 earned by the glass factory business was not assessable in the hands of the assessee but in the hands of the Uttar Pradesh Government which had taken over the factory and was running the business. It was contended that in any event only half of the profits could be included in the assessment of the assessee, the remaining profit being assessable in the hands of the State Government which was entitled to 50 per cent. of the profits under the deed dated August 22, 1960. Both contentions were rejected by the Income Tax Officer who held that the assessee was liable to be assessed in respect of the entire profits earned by the glass factory. He set off the profit against the loss declared by the assessee and computed a net loss of Rs. 2, 54, 785. 5. The assessee appealed to the Appellate Assistant Commissioner of Income Tax, but without success. A second appeal by the assessee filed before the Income Tax Appellate Tribunal was also dismissed. At the instance of the assessee the Appellate Tribunal referred to two questions of law set forth earlier to the High Court of Allahabad. The High Court considered the various provisions of the deed dated August 22, 1960, and answered both the questions in favour of the revenue and against the assessee. 6. It is apparent that this appeal must be disposed of on a consideration of the terms of the deed dated August 22, 1960. A perusal of the conditions set forth in that document disclose that the State Government was given the power to manage the glass factory business for a period of 20 years from the date it assumed possession. Although the deed is described as a lease deed and it provides that the glass factory is demised to the State Government, in substance, possession of the glass factory was transferred to the State Government only for the purpose of enabling it to manage and runs them business. The High Court has given good reasons for reaching that conclusion. 7. Clause (c) of paragraph 7 of the deed provides "that if upon the expiration or sooner determination of this demise, it is found that the working of the factory has shown profits after meeting the entire liabilities of the company, the balance profits, after accounting for all charges and expenses incurred by the State Government, shall be divided between the company and the Government in equal proportion". 8. It was contended by the assessee before the High Court that the income was diverted through an overriding title before it reached the assessee. The High Court, in our opinion, has rightly rejected the contention, holding that there was no overriding title and in fact it was a case of mere application of the income. The proper test to be applied in such a case has been laid down by this court in CIT v. Sitaldas Tirathdas ((1961) 41 ITR 367 : AIR 1961 SC 728 : (1961) 2 SCR 634 ) and we are satisfied that the present case is one where the income accrued to the assessee directly and was merely applied, upon such accrual, to discharge an obligation of the assessee. The entire income earned during the year under consideration was the income of the assessee and was merely applied by the managing State Government for the payment of the assessees debts. 9. We are also in agreement with the High Court that the profits earned during the year under consideration were not sufficient for the State Government to enjoy a share in the profits in accordance with the terms of the dues, and no question, therefore, arises of any part of the profits being regarded as assessable in the hands of the State Government. In point of fact, it appears that no part of the profits was actually taken by the State Government. | 0[ds]6. It is apparent that this appeal must be disposed of on a consideration of the terms of the deed dated August 22, 1960. A perusal of the conditions set forth in that document disclose that the State Government was given the power to manage the glass factory business for a period of 20 years from the date it assumed possession. Although the deed is described as a lease deed and it provides that the glass factory is demised to the State Government, in substance, possession of the glass factory was transferred to the State Government only for the purpose of enabling it to manage and runs them business. The High Court has given good reasons for reaching that conclusion7. Clause (c) of paragraph 7 of the deed provides "that if upon the expiration or sooner determination of this demise, it is found that the working of the factory has shown profits after meeting the entire liabilities of the company, the balance profits, after accounting for all charges and expenses incurred by the State Government, shall be divided between the company and the Government in equal proportion"8. It was contended by the assessee before the High Court that the income was diverted through an overriding title before it reached the assessee. The High Court, in our opinion, has rightly rejected the contention, holding that there was no overriding title and in fact it was a case of mere application of the income. The proper test to be applied in such a case has been laid down by this court in CIT v. Sitaldas Tirathdas ((1961) 41 ITR 367 : AIR 1961 SC 728 : (1961) 2 SCR 634 ) and we are satisfied that the present case is one where the income accrued to the assessee directly and was merely applied, upon such accrual, to discharge an obligation of the assessee. The entire income earned during the year under consideration was the income of the assessee and was merely applied by the managing State Government for the payment of the assessees debts9. We are also in agreement with the High Court that the profits earned during the year under consideration were not sufficient for the State Government to enjoy a share in the profits in accordance with the terms of the dues, and no question, therefore, arises of any part of the profits being regarded as assessable in the hands of the State Government. In point of fact, it appears that no part of the profits was actually taken by the State Government | 0 | 1,247 | 464 | ### 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:
Vibhuti Glass Works, is a public limited company. It has a glass factory and also carried on other business. The accounts of the glass factory are closed on March 31 of each year while the assessee closes its accounts on September 30 of each year. We are concerned with the assessment year 1962-63. 3. For several years the glass factory business had been suffering losses resulting in increasing debt. It took heavy loans from the Banaras State Bank, Varanasi, for which purpose its stocks and stores were hypothecated to the Bank. It also took loans from the Uttar Pradesh Government and the land, buildings and machinery were mortgaged accordingly. The assessee found it difficult to emerge out of its financial embarrassment. It discovered also that it needed certain equipment in order to produce better quality goods and also required funds for its working capital and for repaying loans to other creditors. It approached the Industrial Finance Corporation, New Delhi, and the State Finance Corporation for financial assistance and the industrial Finance Corporation agreed to grant a loan of Rs. 20 lakhs on condition (a) that the State Government guaranteed repayment and (b) that the State Government postponed their charge under the mortgage deeds and the Industrial Financial Corporation was allowed to have the first charge. The State Government agreed to those conditions provided the assessee allowed the State Government to take over the running of the glass factory for a period of 20 years. The State Government also stipulated that if and when the profits of the business exceeded a prescribed limit, a half share of those profits would go to the State Government. The assessee agreed to this arrangement and executed a document dated August 22, 1960 incorporating the perquisite conditions. 4. For the relevant accounting period the glass factory business disclosed a profit of Rs. 92, 960 while the assessee suffered a loss of Rs. 3, 47, 656 according to its separate profit and loss account. During assessment proceedings for the assessment year 1962-63, it was contended by the assessee before the Income Tax Officer that the profit of Rs. 92, 960 earned by the glass factory business was not assessable in the hands of the assessee but in the hands of the Uttar Pradesh Government which had taken over the factory and was running the business. It was contended that in any event only half of the profits could be included in the assessment of the assessee, the remaining profit being assessable in the hands of the State Government which was entitled to 50 per cent. of the profits under the deed dated August 22, 1960. Both contentions were rejected by the Income Tax Officer who held that the assessee was liable to be assessed in respect of the entire profits earned by the glass factory. He set off the profit against the loss declared by the assessee and computed a net loss of Rs. 2, 54, 785. 5. The assessee appealed to the Appellate Assistant Commissioner of Income Tax, but without success. A second appeal by the assessee filed before the Income Tax Appellate Tribunal was also dismissed. At the instance of the assessee the Appellate Tribunal referred to two questions of law set forth earlier to the High Court of Allahabad. The High Court considered the various provisions of the deed dated August 22, 1960, and answered both the questions in favour of the revenue and against the assessee. 6. It is apparent that this appeal must be disposed of on a consideration of the terms of the deed dated August 22, 1960. A perusal of the conditions set forth in that document disclose that the State Government was given the power to manage the glass factory business for a period of 20 years from the date it assumed possession. Although the deed is described as a lease deed and it provides that the glass factory is demised to the State Government, in substance, possession of the glass factory was transferred to the State Government only for the purpose of enabling it to manage and runs them business. The High Court has given good reasons for reaching that conclusion. 7. Clause (c) of paragraph 7 of the deed provides "that if upon the expiration or sooner determination of this demise, it is found that the working of the factory has shown profits after meeting the entire liabilities of the company, the balance profits, after accounting for all charges and expenses incurred by the State Government, shall be divided between the company and the Government in equal proportion". 8. It was contended by the assessee before the High Court that the income was diverted through an overriding title before it reached the assessee. The High Court, in our opinion, has rightly rejected the contention, holding that there was no overriding title and in fact it was a case of mere application of the income. The proper test to be applied in such a case has been laid down by this court in CIT v. Sitaldas Tirathdas ((1961) 41 ITR 367 : AIR 1961 SC 728 : (1961) 2 SCR 634 ) and we are satisfied that the present case is one where the income accrued to the assessee directly and was merely applied, upon such accrual, to discharge an obligation of the assessee. The entire income earned during the year under consideration was the income of the assessee and was merely applied by the managing State Government for the payment of the assessees debts. 9. We are also in agreement with the High Court that the profits earned during the year under consideration were not sufficient for the State Government to enjoy a share in the profits in accordance with the terms of the dues, and no question, therefore, arises of any part of the profits being regarded as assessable in the hands of the State Government. In point of fact, it appears that no part of the profits was actually taken by the State Government.
### Response:
0
### Explanation:
6. It is apparent that this appeal must be disposed of on a consideration of the terms of the deed dated August 22, 1960. A perusal of the conditions set forth in that document disclose that the State Government was given the power to manage the glass factory business for a period of 20 years from the date it assumed possession. Although the deed is described as a lease deed and it provides that the glass factory is demised to the State Government, in substance, possession of the glass factory was transferred to the State Government only for the purpose of enabling it to manage and runs them business. The High Court has given good reasons for reaching that conclusion7. Clause (c) of paragraph 7 of the deed provides "that if upon the expiration or sooner determination of this demise, it is found that the working of the factory has shown profits after meeting the entire liabilities of the company, the balance profits, after accounting for all charges and expenses incurred by the State Government, shall be divided between the company and the Government in equal proportion"8. It was contended by the assessee before the High Court that the income was diverted through an overriding title before it reached the assessee. The High Court, in our opinion, has rightly rejected the contention, holding that there was no overriding title and in fact it was a case of mere application of the income. The proper test to be applied in such a case has been laid down by this court in CIT v. Sitaldas Tirathdas ((1961) 41 ITR 367 : AIR 1961 SC 728 : (1961) 2 SCR 634 ) and we are satisfied that the present case is one where the income accrued to the assessee directly and was merely applied, upon such accrual, to discharge an obligation of the assessee. The entire income earned during the year under consideration was the income of the assessee and was merely applied by the managing State Government for the payment of the assessees debts9. We are also in agreement with the High Court that the profits earned during the year under consideration were not sufficient for the State Government to enjoy a share in the profits in accordance with the terms of the dues, and no question, therefore, arises of any part of the profits being regarded as assessable in the hands of the State Government. In point of fact, it appears that no part of the profits was actually taken by the State Government
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Shankarlal Aggarwal And Ors Vs. Shankarlal Poddar And Ors | impression that he would bring the money and make the deposit and as a matter of fact the narration of facts by the liquidators in their Masters summons clearly shows that they themselves were under this impression. In the circumstances the continued presence of the bidders there manifestly served no purpose and several of them therefore left the place and went away. The bidding list which is Annexure A to the petition of the liquidators showed that New India Transport Co. which had bid up to Rs. 2,55,000 / -. Babulal Bhagwandas who bid up to Rs. 2,75,000/- and Chabildas Agarwal, who went up to Rs. 2,85,000/- were not there when the second auction was held. The result therefore was that when after waiting for about 20 minutes the liquidators continued the auction several had left and the appellant was able to become the highest bidder for the price of Rs. 2,25,000 /-. This feature of the case was missed by the learned Company Judge and forms the basis of the decision of the Division Bench. We would go further and add that on a proper construction of condition 5 the liquidators were not entitled to proceed with the sale in the circumstances that happened because of the interval of time they granted to Nandlal to make the deposit which gave the impression to those who gathered there that there would be no further auction on the same date at which they were entitled to bid. Learned Counsel for the appellant referred us to the fact that one S. K. Chakrabarti who in the first auction had bid up to Rs. 2,98,000 /- was present at the resumed auction and that he bid then only for Rs. 2,00,000/- and that this feature of the resumed auction was not noticed by the learned Judges in appeal. We consider that this is not a very relevant circumstances for a decision of the question either as regards the power of the liquidators to hold the fresh sale without advertisement or whether the sale at the resumed auction had been at an undervalue. It is possibly profitless to speculate how or why it happened that persons who half an hour earlier had been willing to bid for much larger figures suddenly permitted the appellant to become the purchaser for Rs. 2,25,000/-. It may be mentioned that at the resumed bidding them were only six bidders of whom three had not bid at the earlier auction at all, though apparently they were present - Shantilal Bansidhar, Power and Machinery Construction Co., and Relay Corporation. Besides these three there were only two others Mahabir Prasad who had earlier bid for Rs. 2,10,000/- and now contended himself with a bid for Rs. 1,90,000/- and S. K. Chakrabarti who though originally thought that the property was worth having for Rs. 2,98,000 / - now refused to go beyond Rs. 2,00,000/-. These facts show that if those others who had gathered them at the beginning of the auction but who left the place under the impression that Nandlal would make the required payment had continued them, the appellants bid for Rs. 2,25,000/- would not have been the highest bid. We consider therefore the learned Judges of the Division Bench were justified in considering that the sale to the appellant ought not to have been confirmed.22. There was one further point made by learned Counsel that when the learned Judges allowed the appeal of the respondent they should not have directed a resale of the property by a fresh auction but should have confirmed the sale to the appellants at the price of Rs. 3,35,000/ - which was the amount of their bid at the first auction. The basis of this argument was the undertaking which they gave at the time of the disposal of the application for interim stay pending the hearing of the appeal. We have already extracted the terms of that undertaking. It is not easy to find any legal basis for this argument. It is true that in the event of the appeal being allowed the Court might have possibly with the consent of the 1st respondent before us, insisted upon the appellant taking the property for Rs. 3,35,000 /- but that surely cannot give the appellants any legal right to insist that the property be sold to them. It was a condition for the grant of the indulgence of stay and by no strength of language could that be read as implying that the appellants had a right to purchase the property. It is true that the appellants have made a grievance about this matter in the application for leave to this Court as well as in the statement of the case but that hardly improves for position.23. This matter may also be looked at from a slightly different point of view. Immediately Nandlal failed to turn up on September 8, 1956 the liquidators enquired of the appellants whether they were willing that their penultimate bid be treated as the highest bid and they be declared purchasers. This offer was refused as apparently they were satisfied that they would be able to get the property for a much less sum. Thereafter the liquidators took out a Masters summons seeking sanction of the Court for the sale to them for Rs. 2,25,000/-. The appellants supported that application. In other words, they wanted that the Court should confirm the sale to them for Rs. 2,25,000/- and that was the order which they obtained from the learned Company Judge. It was only when the appeal was filed and an application for stay was moved before the Appellate Court by the 1st respondent here that the offer which is embodied in the undertaking was made. In the circumstances it is difficult to see what justification there is for the contention that the learned Judges should, when they allowed the appeal, have confirmed the sale to them for Rs. 3,35,000/ -. We consider there is no substance in this submission. | 0[ds]In the view we are clearly of the opinion that the order of the Court was, in the circumstances, a judicial order and not an administrative one and was therefore not inherently incapable of being brought up infind ourselves in agreement with the view here expressed. Madan Gopal Daga, ILR 55 Cal 262 : (AIR 1928 Cal 295 ) proceeds wholly on the meaning which could be attributed to the word "conditions" in the expression "subject to the conditions" occurring in S. 202 and does not take into account the context in which S. 202 was designed to operate and particularly the fact that more than one grade of Court each governed by different rules as to the nature of the decision which would enable an appeal to be preferred could be vested with jurisdiction under the Act. When by the proviso to S. 3 of the Indian Companies Act, 1913 the Indian Legislature enabled jurisdiction to be vested in District Courts so as to be constituted the "Court having jurisdiction under the Act", knowledge must be imparted to it that the District Courts and the High Courts functioned under different statutory provisions as regards rights of appeal from their orders and decisions. Besides, it would also be fair to presume that they intended to prescribe a uniform law as regards the substantive right of appeal conferred by S. 202. It could not therefore be that an identical order if passed by one class of "Court having jurisdiction under the Act" would be final, but that if passed by another Court vested with identical powers and jurisdiction would be subject to anthus agree with Chagla, C.J. that the second part of the section which refers to "the manner" and "the conditions subject to which appeals may be had" merely regulates the procedure to be followed in the presentation of the appeal and of hearing them, the period of limitation within which the appeal is to be presented and the forum to which appeal would lie and does not restrict or impair the substantive right of appeal which has been conferred by the opening words of that section. We also agree with the learned Judges of the Bombay High Court that the words "order or decision" occurring in the 1st part of S. 202 though wide, would exclude merely procedural orders or those which do not affect the rights or liabilities of parties.There was one further point made by learned Counsel that when the learned Judges allowed the appeal of the respondent they should not have directed a resale of the property by a fresh auction but should have confirmed the sale to the appellants at the price of Rs. 3,35,000/ - which was the amount of their bid at the first auction. The basis of this argument was the undertaking which they gave at the time of the disposal of the application for interim stay pending the hearing of the appeal. We have already extracted the terms of that undertaking. It is not easy to find any legal basis for this argument. It is true that in the event of the appeal being allowed the Court might have possibly with the consent of the 1st respondent before us, insisted upon the appellant taking the property for Rs. 3,35,000 /- but that surely cannot give the appellants any legal right to insist that the property be sold to them. It was a condition for the grant of the indulgence of stay and by no strength of language could that be read as implying that the appellants had a right to purchase the property. It is true that the appellants have made a grievance about this matter in the application for leave to this Court as well as in the statement of the case but that hardly improves for position.23. This matter may also be looked at from a slightly different point of view. Immediately Nandlal failed to turn up on September 8, 1956 the liquidators enquired of the appellants whether they were willing that their penultimate bid be treated as the highest bid and they be declared purchasers. This offer was refused as apparently they were satisfied that they would be able to get the property for a much less sum. Thereafter the liquidators took out a Masters summons seeking sanction of the Court for the sale to them for Rs. 2,25,000/-. The appellants supported that application. In other words, they wanted that the Court should confirm the sale to them for Rs. 2,25,000/- and that was the order which they obtained from the learned Company Judge. It was only when the appeal was filed and an application for stay was moved before the Appellate Court by the 1st respondent here that the offer which is embodied in the undertaking was made. In the circumstances it is difficult to see what justification there is for the contention that the learned Judges should, when they allowed the appeal, have confirmed the sale to them for Rs. 3,35,000/ -. We consider there is no substance in this submission. | 0 | 7,727 | 907 | ### Instruction:
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impression that he would bring the money and make the deposit and as a matter of fact the narration of facts by the liquidators in their Masters summons clearly shows that they themselves were under this impression. In the circumstances the continued presence of the bidders there manifestly served no purpose and several of them therefore left the place and went away. The bidding list which is Annexure A to the petition of the liquidators showed that New India Transport Co. which had bid up to Rs. 2,55,000 / -. Babulal Bhagwandas who bid up to Rs. 2,75,000/- and Chabildas Agarwal, who went up to Rs. 2,85,000/- were not there when the second auction was held. The result therefore was that when after waiting for about 20 minutes the liquidators continued the auction several had left and the appellant was able to become the highest bidder for the price of Rs. 2,25,000 /-. This feature of the case was missed by the learned Company Judge and forms the basis of the decision of the Division Bench. We would go further and add that on a proper construction of condition 5 the liquidators were not entitled to proceed with the sale in the circumstances that happened because of the interval of time they granted to Nandlal to make the deposit which gave the impression to those who gathered there that there would be no further auction on the same date at which they were entitled to bid. Learned Counsel for the appellant referred us to the fact that one S. K. Chakrabarti who in the first auction had bid up to Rs. 2,98,000 /- was present at the resumed auction and that he bid then only for Rs. 2,00,000/- and that this feature of the resumed auction was not noticed by the learned Judges in appeal. We consider that this is not a very relevant circumstances for a decision of the question either as regards the power of the liquidators to hold the fresh sale without advertisement or whether the sale at the resumed auction had been at an undervalue. It is possibly profitless to speculate how or why it happened that persons who half an hour earlier had been willing to bid for much larger figures suddenly permitted the appellant to become the purchaser for Rs. 2,25,000/-. It may be mentioned that at the resumed bidding them were only six bidders of whom three had not bid at the earlier auction at all, though apparently they were present - Shantilal Bansidhar, Power and Machinery Construction Co., and Relay Corporation. Besides these three there were only two others Mahabir Prasad who had earlier bid for Rs. 2,10,000/- and now contended himself with a bid for Rs. 1,90,000/- and S. K. Chakrabarti who though originally thought that the property was worth having for Rs. 2,98,000 / - now refused to go beyond Rs. 2,00,000/-. These facts show that if those others who had gathered them at the beginning of the auction but who left the place under the impression that Nandlal would make the required payment had continued them, the appellants bid for Rs. 2,25,000/- would not have been the highest bid. We consider therefore the learned Judges of the Division Bench were justified in considering that the sale to the appellant ought not to have been confirmed.22. There was one further point made by learned Counsel that when the learned Judges allowed the appeal of the respondent they should not have directed a resale of the property by a fresh auction but should have confirmed the sale to the appellants at the price of Rs. 3,35,000/ - which was the amount of their bid at the first auction. The basis of this argument was the undertaking which they gave at the time of the disposal of the application for interim stay pending the hearing of the appeal. We have already extracted the terms of that undertaking. It is not easy to find any legal basis for this argument. It is true that in the event of the appeal being allowed the Court might have possibly with the consent of the 1st respondent before us, insisted upon the appellant taking the property for Rs. 3,35,000 /- but that surely cannot give the appellants any legal right to insist that the property be sold to them. It was a condition for the grant of the indulgence of stay and by no strength of language could that be read as implying that the appellants had a right to purchase the property. It is true that the appellants have made a grievance about this matter in the application for leave to this Court as well as in the statement of the case but that hardly improves for position.23. This matter may also be looked at from a slightly different point of view. Immediately Nandlal failed to turn up on September 8, 1956 the liquidators enquired of the appellants whether they were willing that their penultimate bid be treated as the highest bid and they be declared purchasers. This offer was refused as apparently they were satisfied that they would be able to get the property for a much less sum. Thereafter the liquidators took out a Masters summons seeking sanction of the Court for the sale to them for Rs. 2,25,000/-. The appellants supported that application. In other words, they wanted that the Court should confirm the sale to them for Rs. 2,25,000/- and that was the order which they obtained from the learned Company Judge. It was only when the appeal was filed and an application for stay was moved before the Appellate Court by the 1st respondent here that the offer which is embodied in the undertaking was made. In the circumstances it is difficult to see what justification there is for the contention that the learned Judges should, when they allowed the appeal, have confirmed the sale to them for Rs. 3,35,000/ -. We consider there is no substance in this submission.
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In the view we are clearly of the opinion that the order of the Court was, in the circumstances, a judicial order and not an administrative one and was therefore not inherently incapable of being brought up infind ourselves in agreement with the view here expressed. Madan Gopal Daga, ILR 55 Cal 262 : (AIR 1928 Cal 295 ) proceeds wholly on the meaning which could be attributed to the word "conditions" in the expression "subject to the conditions" occurring in S. 202 and does not take into account the context in which S. 202 was designed to operate and particularly the fact that more than one grade of Court each governed by different rules as to the nature of the decision which would enable an appeal to be preferred could be vested with jurisdiction under the Act. When by the proviso to S. 3 of the Indian Companies Act, 1913 the Indian Legislature enabled jurisdiction to be vested in District Courts so as to be constituted the "Court having jurisdiction under the Act", knowledge must be imparted to it that the District Courts and the High Courts functioned under different statutory provisions as regards rights of appeal from their orders and decisions. Besides, it would also be fair to presume that they intended to prescribe a uniform law as regards the substantive right of appeal conferred by S. 202. It could not therefore be that an identical order if passed by one class of "Court having jurisdiction under the Act" would be final, but that if passed by another Court vested with identical powers and jurisdiction would be subject to anthus agree with Chagla, C.J. that the second part of the section which refers to "the manner" and "the conditions subject to which appeals may be had" merely regulates the procedure to be followed in the presentation of the appeal and of hearing them, the period of limitation within which the appeal is to be presented and the forum to which appeal would lie and does not restrict or impair the substantive right of appeal which has been conferred by the opening words of that section. We also agree with the learned Judges of the Bombay High Court that the words "order or decision" occurring in the 1st part of S. 202 though wide, would exclude merely procedural orders or those which do not affect the rights or liabilities of parties.There was one further point made by learned Counsel that when the learned Judges allowed the appeal of the respondent they should not have directed a resale of the property by a fresh auction but should have confirmed the sale to the appellants at the price of Rs. 3,35,000/ - which was the amount of their bid at the first auction. The basis of this argument was the undertaking which they gave at the time of the disposal of the application for interim stay pending the hearing of the appeal. We have already extracted the terms of that undertaking. It is not easy to find any legal basis for this argument. It is true that in the event of the appeal being allowed the Court might have possibly with the consent of the 1st respondent before us, insisted upon the appellant taking the property for Rs. 3,35,000 /- but that surely cannot give the appellants any legal right to insist that the property be sold to them. It was a condition for the grant of the indulgence of stay and by no strength of language could that be read as implying that the appellants had a right to purchase the property. It is true that the appellants have made a grievance about this matter in the application for leave to this Court as well as in the statement of the case but that hardly improves for position.23. This matter may also be looked at from a slightly different point of view. Immediately Nandlal failed to turn up on September 8, 1956 the liquidators enquired of the appellants whether they were willing that their penultimate bid be treated as the highest bid and they be declared purchasers. This offer was refused as apparently they were satisfied that they would be able to get the property for a much less sum. Thereafter the liquidators took out a Masters summons seeking sanction of the Court for the sale to them for Rs. 2,25,000/-. The appellants supported that application. In other words, they wanted that the Court should confirm the sale to them for Rs. 2,25,000/- and that was the order which they obtained from the learned Company Judge. It was only when the appeal was filed and an application for stay was moved before the Appellate Court by the 1st respondent here that the offer which is embodied in the undertaking was made. In the circumstances it is difficult to see what justification there is for the contention that the learned Judges should, when they allowed the appeal, have confirmed the sale to them for Rs. 3,35,000/ -. We consider there is no substance in this submission.
|
Santuram Khudai Vs. Kimatrai Printers & Processors (P) Ltd. & Ors | where the appearance is by any representative of employees other than a representative-union authorities under S. 32 can permit the employee to appear himself in all proceedings before them and further the employee is entitled to appear by any person in certain proceedings specified in S. 33. But whenever the representative-union has made an appearance, even the employee cannot appear in any proceedings under the Act and the representation must be confined only to the representative-union. The complete ban, therefore, laid by S. 27A on representation otherwise than through a representative of employees remains complete where the representative of employees is the representative-union that has appeared; but if the representative of employees that has appeared is other than the representative-union then Ss. 32 and 33 provide for exceptions with which we have already dealt. There can, therefore, be no escape from the conclusion that the Act plainly intends that where the representative-union appears in any proceeding under the Act even though that proceeding might have commenced by an employee under S.42(4) of the Act, the representative-union alone can represent the employee and the employee cannot appear or act in such proceeding."16. The following observations made by Hidayatullah, C.J. in Textile Labour Association Bhadra, Ahmedabad v. Ahmedabad Mill Owners Association, Ahmedabad, (1970) 3 S.C.R. 890 at p. 891, is also pertinent :"Reading these two sections (Ss.32 and 33 of the Act), we find that it is quite clearly stated in the provisos to the two sections that no individual is allowed to appear in any proceeding in which the representative-union has appeared as the representative of the employees".17. The second contention raised by Mr. Dutta is also, therefore, replied.18. The last contention of Mr. Dutta that in view of the fact that while appearing as the representative-union in respondent No. 1s aforesaid application No. 1455 of 1976, respondent No. 2 was not acting for and on behalf of the employees but was acting mala fide and against their interests, the appellant and his five other co-employees should have been allowed to be added as parties to the application and permitted to appear and act therein has also no force. It has to be remembered that mala fides or bona fides of a representative-union has no relevance while considering the provisions of S.27A and Ss.32 and 33 of the Act which taken together impose an absolute ban on the appearance of any individual employee in any proceeding under the Act where the representative-union chooses to appear or act as representative of the employees. In case, the employees find that the representative-union is acting in a manner which is prejudicial to their interest, their remedy lies in invoking the aid of the Registrar under Chapter III of the Act and asking him to cancel the registration of the union. The following observations made in Girja Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co. Ltd., (supra) are opposite in this connection :"But it is clear that bona fides or mala fides of the representative of employees can have nothing to do with the ban placed by S. 27A on the appearance of any one else except the representative of employees as defined in S. 30 and that if anyone else can appear in any proceeding we must find a provision in that behalf in either S. 32 or S. 33, which are the only exceptions to S. 27A. It may be noticed that there is no exceptions in S. 27A. It may be noticed that there is no exception in S. 27A in favour of the employees who might have made an application under S. 42(4), to appear on his own behalf and the ban which is placed by S. 27A will apply equally to such an employee. In order, however, to soften the rigour of the provisions of S. 27A, for it may well be that the representative of employees may not choose to appear in many proceedings started by an employee under S. 42(4), exceptions are provided in Ss. 32 and 33. The scheme of these three provisions clearly is that if the representative-union appears, no one else can appear and carry on a proceeding, even if it be begun on an application under S. 42(4) but where the representative-union does not choose to appear there are provisions in Ss. 32 and 33 which permits others to appear in proceedings under the Act."19. In view of the above quoted categoric and unequivocal observations, the contrary observations made in N. M. Naik v. Colaba Land Mills, [1960-I L.L.J. 448]; on which strong reliance has been placed by Mr. Dutta must be treated as overruled.20. We have, therefore, no hesitation in agreeing with the view expressed by the Labour Court and the High Court and holding that neither the appellant nor his other co-employees had any locus standi to appear or act as individual employees in the aforesaid proceedings initiated by respondent No. 1 in which respondent No. 2 which the representative-union in the industry in the local area had the right to appear and act as their representative of the employees in the industry and did appear or act as such. We may observe here in passing that even the new union to which the appellant and some of his co-employees belonged would have no right to appear or act on behalf of the appellant or his co-employees in the aforesaid proceedings initiated by respondent No. 1 as it had not been registered and recognised as the representative-union of employees under the Act.21. In conclusion, we wish to make it clear that as learned counsel for the parties have abstained from addressing us regarding the legality or otherwise of the aforesaid strike in view of the fact that it was not open to the appellant to agitate that question because the Labour Court had refused to add him as a party to respondent No. 1s aforesaid application No. 1455 of 1976, we have refrained from making any observation in regard thereto. | 0[ds]9. A plain reading of the above section which was substituted for the original S.80 by the Bombay Act 49 of 1955 makes it clear that the Labour Court can permit the parties affected by the dispute to appear in the manner provided by Ss.80A to 80C of the Act but the discretion conferred on the Labour Court has specifically been made subject to the provisions of Chapter V which deals with "representation of employees and employers and appearance on their behalf" and contains amongst other provisions S.Now a combined reading of Ss. 80, 27A, 30 32, and 33 of the Act leaves no room for doubt that consistent with its avowed policy of preventing the exploitation of the workers and augmenting their bargaining power, the Legislature has clothed the representative-union with lenary power to appear or act on behalf of the employers in any proceedings under the Act and has deprived the individual employees or workmen of the right to appear or act in any proceeding under the Act where the representative-union enters appearance or acts as representative of employees. We are fortified in this view by a decision of this Court in Girja Shankar Kashi Ram v. The Gujarat Spinning and Weaving Co., Ltd., [1962-II L.L.J. 369]; (1962) 2 S.C.R.The first contention advanced by Mr. Dutta is, therefore, overruled.15. The second contention raised by Mr. Dutta is also devoid of substance. Sections 32 and 33 of the Act no doubt engraft exceptions on the aforesaid general rule embodied in S.27A of the Act but they are not helpful to the appellant as the provisos appended thereto specifically preclude individual employees from appearing or acting in any proceeding under the Act where the representative - union enters appearance or acts as the representative of employees.The second contention raised by Mr. Dutta is also, therefore, replied.18. The last contention of Mr. Dutta that in view of the fact that while appearing as the representative-union in respondent No. 1s aforesaid application No. 1455 of 1976, respondent No. 2 was not acting for and on behalf of the employees but was acting mala fide and against their interests, the appellant and his five other co-employees should have been allowed to be added as parties to the application and permitted to appear and act therein has also no force. It has to be remembered that mala fides or bona fides of a representative-union has no relevance while considering the provisions of S.27A and Ss.32 and 33 of the Act which taken together impose an absolute ban on the appearance of any individual employee in any proceeding under the Act where the representative-union chooses to appear or act as representative of the employees. In case, the employees find that the representative-union is acting in a manner which is prejudicial to their interest, their remedy lies in invoking the aid of the Registrar under Chapter III of the Act and asking him to cancel the registration of the union. The following observations made in Girja Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co. Ltd., (supra) are opposite in this connectionit is clear that bona fides or mala fides of the representative of employees can have nothing to do with the ban placed by S. 27A on the appearance of any one else except the representative of employees as defined in S. 30 and that if anyone else can appear in any proceeding we must find a provision in that behalf in either S. 32 or S. 33, which are the only exceptions to S. 27A. It may be noticed that there is no exceptions in S. 27A. It may be noticed that there is no exception in S. 27A in favour of the employees who might have made an application under S. 42(4), to appear on his own behalf and the ban which is placed by S. 27A will apply equally to such an employee. In order, however, to soften the rigour of the provisions of S. 27A, for it may well be that the representative of employees may not choose to appear in many proceedings started by an employee under S. 42(4), exceptions are provided in Ss. 32 and 33. The scheme of these three provisions clearly is that if the representative-union appears, no one else can appear and carry on a proceeding, even if it be begun on an application under S. 42(4) but where the representative-union does not choose to appear there are provisions in Ss. 32 and 33 which permits others to appear in proceedings under the Act.In view of the above quoted categoric and unequivocal observations, the contrary observations made in N. M. Naik v. Colaba Land Mills, [1960-I L.L.J. 448]; on which strong reliance has been placed by Mr. Dutta must be treated as overruled.20. We have, therefore, no hesitation in agreeing with the view expressed by the Labour Court and the High Court and holding that neither the appellant nor his other co-employees had any locus standi to appear or act as individual employees in the aforesaid proceedings initiated by respondent No. 1 in which respondent No. 2 which the representative-union in the industry in the local area had the right to appear and act as their representative of the employees in the industry and did appear or act as such. We may observe here in passing that even the new union to which the appellant and some of his co-employees belonged would have no right to appear or act on behalf of the appellant or his co-employees in the aforesaid proceedings initiated by respondent No. 1 as it had not been registered and recognised as the representative-union of employees under the Act.21. In conclusion, we wish to make it clear that as learned counsel for the parties have abstained from addressing us regarding the legality or otherwise of the aforesaid strike in view of the fact that it was not open to the appellant to agitate that question because the Labour Court had refused to add him as a party to respondent No. 1s aforesaid application No. 1455 of 1976, we have refrained from making any observation in regard thereto. | 0 | 4,081 | 1,108 | ### 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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where the appearance is by any representative of employees other than a representative-union authorities under S. 32 can permit the employee to appear himself in all proceedings before them and further the employee is entitled to appear by any person in certain proceedings specified in S. 33. But whenever the representative-union has made an appearance, even the employee cannot appear in any proceedings under the Act and the representation must be confined only to the representative-union. The complete ban, therefore, laid by S. 27A on representation otherwise than through a representative of employees remains complete where the representative of employees is the representative-union that has appeared; but if the representative of employees that has appeared is other than the representative-union then Ss. 32 and 33 provide for exceptions with which we have already dealt. There can, therefore, be no escape from the conclusion that the Act plainly intends that where the representative-union appears in any proceeding under the Act even though that proceeding might have commenced by an employee under S.42(4) of the Act, the representative-union alone can represent the employee and the employee cannot appear or act in such proceeding."16. The following observations made by Hidayatullah, C.J. in Textile Labour Association Bhadra, Ahmedabad v. Ahmedabad Mill Owners Association, Ahmedabad, (1970) 3 S.C.R. 890 at p. 891, is also pertinent :"Reading these two sections (Ss.32 and 33 of the Act), we find that it is quite clearly stated in the provisos to the two sections that no individual is allowed to appear in any proceeding in which the representative-union has appeared as the representative of the employees".17. The second contention raised by Mr. Dutta is also, therefore, replied.18. The last contention of Mr. Dutta that in view of the fact that while appearing as the representative-union in respondent No. 1s aforesaid application No. 1455 of 1976, respondent No. 2 was not acting for and on behalf of the employees but was acting mala fide and against their interests, the appellant and his five other co-employees should have been allowed to be added as parties to the application and permitted to appear and act therein has also no force. It has to be remembered that mala fides or bona fides of a representative-union has no relevance while considering the provisions of S.27A and Ss.32 and 33 of the Act which taken together impose an absolute ban on the appearance of any individual employee in any proceeding under the Act where the representative-union chooses to appear or act as representative of the employees. In case, the employees find that the representative-union is acting in a manner which is prejudicial to their interest, their remedy lies in invoking the aid of the Registrar under Chapter III of the Act and asking him to cancel the registration of the union. The following observations made in Girja Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co. Ltd., (supra) are opposite in this connection :"But it is clear that bona fides or mala fides of the representative of employees can have nothing to do with the ban placed by S. 27A on the appearance of any one else except the representative of employees as defined in S. 30 and that if anyone else can appear in any proceeding we must find a provision in that behalf in either S. 32 or S. 33, which are the only exceptions to S. 27A. It may be noticed that there is no exceptions in S. 27A. It may be noticed that there is no exception in S. 27A in favour of the employees who might have made an application under S. 42(4), to appear on his own behalf and the ban which is placed by S. 27A will apply equally to such an employee. In order, however, to soften the rigour of the provisions of S. 27A, for it may well be that the representative of employees may not choose to appear in many proceedings started by an employee under S. 42(4), exceptions are provided in Ss. 32 and 33. The scheme of these three provisions clearly is that if the representative-union appears, no one else can appear and carry on a proceeding, even if it be begun on an application under S. 42(4) but where the representative-union does not choose to appear there are provisions in Ss. 32 and 33 which permits others to appear in proceedings under the Act."19. In view of the above quoted categoric and unequivocal observations, the contrary observations made in N. M. Naik v. Colaba Land Mills, [1960-I L.L.J. 448]; on which strong reliance has been placed by Mr. Dutta must be treated as overruled.20. We have, therefore, no hesitation in agreeing with the view expressed by the Labour Court and the High Court and holding that neither the appellant nor his other co-employees had any locus standi to appear or act as individual employees in the aforesaid proceedings initiated by respondent No. 1 in which respondent No. 2 which the representative-union in the industry in the local area had the right to appear and act as their representative of the employees in the industry and did appear or act as such. We may observe here in passing that even the new union to which the appellant and some of his co-employees belonged would have no right to appear or act on behalf of the appellant or his co-employees in the aforesaid proceedings initiated by respondent No. 1 as it had not been registered and recognised as the representative-union of employees under the Act.21. In conclusion, we wish to make it clear that as learned counsel for the parties have abstained from addressing us regarding the legality or otherwise of the aforesaid strike in view of the fact that it was not open to the appellant to agitate that question because the Labour Court had refused to add him as a party to respondent No. 1s aforesaid application No. 1455 of 1976, we have refrained from making any observation in regard thereto.
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that the Labour Court can permit the parties affected by the dispute to appear in the manner provided by Ss.80A to 80C of the Act but the discretion conferred on the Labour Court has specifically been made subject to the provisions of Chapter V which deals with "representation of employees and employers and appearance on their behalf" and contains amongst other provisions S.Now a combined reading of Ss. 80, 27A, 30 32, and 33 of the Act leaves no room for doubt that consistent with its avowed policy of preventing the exploitation of the workers and augmenting their bargaining power, the Legislature has clothed the representative-union with lenary power to appear or act on behalf of the employers in any proceedings under the Act and has deprived the individual employees or workmen of the right to appear or act in any proceeding under the Act where the representative-union enters appearance or acts as representative of employees. We are fortified in this view by a decision of this Court in Girja Shankar Kashi Ram v. The Gujarat Spinning and Weaving Co., Ltd., [1962-II L.L.J. 369]; (1962) 2 S.C.R.The first contention advanced by Mr. Dutta is, therefore, overruled.15. The second contention raised by Mr. Dutta is also devoid of substance. Sections 32 and 33 of the Act no doubt engraft exceptions on the aforesaid general rule embodied in S.27A of the Act but they are not helpful to the appellant as the provisos appended thereto specifically preclude individual employees from appearing or acting in any proceeding under the Act where the representative - union enters appearance or acts as the representative of employees.The second contention raised by Mr. Dutta is also, therefore, replied.18. The last contention of Mr. Dutta that in view of the fact that while appearing as the representative-union in respondent No. 1s aforesaid application No. 1455 of 1976, respondent No. 2 was not acting for and on behalf of the employees but was acting mala fide and against their interests, the appellant and his five other co-employees should have been allowed to be added as parties to the application and permitted to appear and act therein has also no force. It has to be remembered that mala fides or bona fides of a representative-union has no relevance while considering the provisions of S.27A and Ss.32 and 33 of the Act which taken together impose an absolute ban on the appearance of any individual employee in any proceeding under the Act where the representative-union chooses to appear or act as representative of the employees. In case, the employees find that the representative-union is acting in a manner which is prejudicial to their interest, their remedy lies in invoking the aid of the Registrar under Chapter III of the Act and asking him to cancel the registration of the union. The following observations made in Girja Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co. Ltd., (supra) are opposite in this connectionit is clear that bona fides or mala fides of the representative of employees can have nothing to do with the ban placed by S. 27A on the appearance of any one else except the representative of employees as defined in S. 30 and that if anyone else can appear in any proceeding we must find a provision in that behalf in either S. 32 or S. 33, which are the only exceptions to S. 27A. It may be noticed that there is no exceptions in S. 27A. It may be noticed that there is no exception in S. 27A in favour of the employees who might have made an application under S. 42(4), to appear on his own behalf and the ban which is placed by S. 27A will apply equally to such an employee. In order, however, to soften the rigour of the provisions of S. 27A, for it may well be that the representative of employees may not choose to appear in many proceedings started by an employee under S. 42(4), exceptions are provided in Ss. 32 and 33. The scheme of these three provisions clearly is that if the representative-union appears, no one else can appear and carry on a proceeding, even if it be begun on an application under S. 42(4) but where the representative-union does not choose to appear there are provisions in Ss. 32 and 33 which permits others to appear in proceedings under the Act.In view of the above quoted categoric and unequivocal observations, the contrary observations made in N. M. Naik v. Colaba Land Mills, [1960-I L.L.J. 448]; on which strong reliance has been placed by Mr. Dutta must be treated as overruled.20. We have, therefore, no hesitation in agreeing with the view expressed by the Labour Court and the High Court and holding that neither the appellant nor his other co-employees had any locus standi to appear or act as individual employees in the aforesaid proceedings initiated by respondent No. 1 in which respondent No. 2 which the representative-union in the industry in the local area had the right to appear and act as their representative of the employees in the industry and did appear or act as such. We may observe here in passing that even the new union to which the appellant and some of his co-employees belonged would have no right to appear or act on behalf of the appellant or his co-employees in the aforesaid proceedings initiated by respondent No. 1 as it had not been registered and recognised as the representative-union of employees under the Act.21. In conclusion, we wish to make it clear that as learned counsel for the parties have abstained from addressing us regarding the legality or otherwise of the aforesaid strike in view of the fact that it was not open to the appellant to agitate that question because the Labour Court had refused to add him as a party to respondent No. 1s aforesaid application No. 1455 of 1976, we have refrained from making any observation in regard thereto.
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Tata Consultancy Services Ltd Vs. Inspira IT Products Pvt. Ltd | And Anr. (2004) 3 SCC 458 In regard to Ajab Enterprises, SC Gupte, J held that the narrower view taken there could not be said to be good law in view of the completely contrary proposition set out by the Supreme Court in West Coast Paper Mills Ltd. and followed by the Supreme Court itself in M.P. Steel Corporation v. Commissioner Of Central Excise. (2015) 7 SCC 58 The views in Ajab Enterprises are also contrary to the later decision of a Division Bench of this Court in Maharashtra State Farming Corporation Ltd. v. Belapur Sugar And Allied Industries Ltd., (2004) 3 Mh LJ 414 where this Court precisely ordered such an exclusion of time. 12. Of necessity, the submission by Ms. Sethna on Ajab Enterprises results in a completely unviable position. It means that Ajab Enterprises, though plainly contrary to later decisions of the Supreme Court and our Division Bench, was nonetheless binding on Gupte J. That surely cannot be. We do not believe that the decision in SiddharamSatlingappaMhetre is an authority for any such proposition: to constitute binding precedent, the previous decision must be good law. Indeed, we are fully in agreement with the view of Gupte J that the decision in Ajab Enterprises is not and cannot be said to be good law. 13. On behalf of Inspira, apart from the factual conspectus which is not disputed, the submission before us by Dr. Saraf is that Section 14 is of wide amplitude. The test is to see whether there is a substantial identity of subject matter and a pragmatic approach must be taken: RoshanlalKuthalia And Ors. v. RB Mohan Singh Oberoi. (1975) 4 SCC 628 Section 14 is not limited or confined only to cases of defect of jurisdiction but extends to other causes also as held by the Supreme Court in SAL Narayan Row &Anr. v. IshwarlalBhagwandas&Anr. (1966) 1 SCR 190 , AIR 1965 SC 1818 , (1965) 57 ITR 149 In SAL Narayan Row, the Supreme Court clearly said that the words civil proceedings (in that context in Article 132) were used in a wide sense in contradistinction to criminal proceedings and covered all actions that directly affected or related to civil rights. This view was reiterated in Ramesh &Anr. v. Seth Gendalal Motilal Patni &Anr. (1966) 3 SCR 198 , AIR 1966 SC 1445 for the purposes of Article 133 which confers appellate jurisdiction of the Supreme Court in appeals from High Court in regard to civil matters. 14. The learned Single Judge held that there was no reason to see the words civil proceedings any differently for the purposes of Section 14 of the Limitation Act. No narrower view was justified. Indeed the Supreme Court itself, in MP Steel Corporation held that Section 14 needs to be construed liberally so as to advance the cause of justice. Its principle is that whenever a person pursues with due diligence another proceeding and does so bona fide, and this is proved to be abortive because it is without jurisdiction or otherwise such that no decision on merits is possible, that time ought to be excluded. 15. The rational behind this is, to our mind plain. In fact, this case probably provides very good illustration of why this salutary principle enunciated by Supreme Court should apply. After all, TCS knew what Inspiras claim was. It opposed the winding up proceedings. It could hardly be suggested that those winding up proceedings should count for absolutely nothing; that limitation should continue running without exclusion; or that Inpira ought to have simultaneously filed a civil suit to save limitation. No decision came to be rendered in the winding up petition. Any narrower construction would only defeat justice. This is also not the first time that the Court has taken a such a view, as is clear from Maharashtra State Farming Corporation where this Court allowed such an exclusion of time. 16. This takes us to Ms. Sethnas next submission that a winding up petition is not a bona fide remedy for recovery of a debt. Stated thus, the principle is inaccurate, especially if it is based on the decision of the Supreme Court in IBA Health (India) Private Limited v. Info-Drive Systems SDN BHD. (2010) 10 SCC 553 The relevant portion is that a winding up petition could not be said to be a bona fide remedy for recovery of a disputed claim--i.e., one which a company court could not entertain on well-settled principles. Otherwise, as the Supreme Court has itself held in Harinagar Sugar Mills Co. Ltd. v. MW Pradhan, Court Receiver, High Court, Bombay, (1966) 3 SCR 948 , AIR 1966 SC 1707 , (1966) 60 ITR 508 , (1966) 36 Com Cas 426 citing established law, a winding up petition is a perfectly proper remedy for enforcing payment of a just debt. It is a mode of execution which the Court gives to the creditor against a company unable to pay its debts. Our Court has followed this authority in Modern Dekor Painting Contracts Private Ltd. v. Jenson & Nicholson (India) Ltd. (1984) Mh LJ 988, 1985 Tax LR 2090 17. We also find it extraordinarily strange that before the learned Single Judge hearing the company petition TCS should consent to the appointment of sole arbitrator to decide the very dispute that was before the company court, only to then contend that Inspiras claim was entirely time-barred. 18. As to the question of whether the reference to arbitration relates to same subject matter, little needs to be said on that score. Clearly it does. 19. Dr. Saraf submits that, if viewed as Ms. Sethna would have us do, Section 14(1) of the Limitation Act becomes a prohibitory and penal statue rather than the reverse which is its plain intent. It is a liberal provision and it is substantive law granting an applicant a right to exclusion of time, i.e. an extension of limitation as it were, provided the ingredients in that Section are properly made out. | 0[ds]9. As the emphasised portion shows, there is a material distinction between 14(1) and 14(2). We are only concerned with the former. As Ms. Sethna correctly points out, this has several components or ingredients that have to be met before the exclusion of time can operate. Each of these can be separately identified. There is the question of due diligence; the existence of a civil proceeding; the same subject matter in issue; the prosecution of the previous civil proceeding in good faith; and the fact that a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it.10. Ms. Sethna relies on the decision of a Single Judge of this Court in Ajab Enterprises v. Jayant Vegoiles And Chemicals Pvt. Ltd. AIR 1991 Bom 35 The learned Single Judge considered both Section 14(1) and 14(2). He accepted the contention that a company petition for winding up cannot be considered as covering the same issue as in a civil suit. The learned Single Judge relied on the decision of the Supreme Court in Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari AIR 1951 SC 16 to say that there can be no exclusion of time under Section 14 of the time occupied by insolvency proceeding against the judgment debtor in continue the period of limitation in executing a decree against him as the proceedings are not for obtaining the same relief. In addition Ms. Sethna refers to a Full Bench decision of the Lahore High Court in Jai Kishan Singh v. The Peoples Bank of Northern India. (1944) Vol XXV ILR Lahore Series 451 Ms. Sethna relies on the decision of the Supreme Court in SiddharamSatlingappaMhetre v. State of Maharashtra and Others, (2011) 1 SCC 694 paragraph 13 for the submission that the decision of the learned Single Judge in Ajab Enterprises was always binding on Gupte J and he could not possibly taken a different view.11. A large part of the discussion before the learned Single Judge was on the question of what is meant by cause of a like nature. It is here that the learned Single Judge considered the case of Ajab Enterprises. In our view the learned Single Judge correctly held that the issue was no longer res integra at least in regard to the proposition that Section 14 of the Limitation Act must be interpreted to advance the cause of justice: Union of India And Ors. v. West Coast Paper Mills Ltd. And Anr. (2004) 3 SCC 458 In regard to Ajab Enterprises, SC Gupte, J held that the narrower view taken there could not be said to be good law in view of the completely contrary proposition set out by the Supreme Court in West Coast Paper Mills Ltd. and followed by the Supreme Court itself in M.P. Steel Corporation v. Commissioner Of Central Excise. (2015) 7 SCC 58 The views in Ajab Enterprises are also contrary to the later decision of a Division Bench of this Court in Maharashtra State Farming Corporation Ltd. v. Belapur Sugar And Allied Industries Ltd., (2004) 3 Mh LJ 414 where this Court precisely ordered such an exclusion of time.12. Of necessity, the submission by Ms. Sethna on Ajab Enterprises results in a completely unviable position. It means that Ajab Enterprises, though plainly contrary to later decisions of the Supreme Court and our Division Bench, was nonetheless binding on Gupte J. That surely cannot be. We do not believe that the decision in SiddharamSatlingappaMhetre is an authority for any such proposition: to constitute binding precedent, the previous decision must be good law. Indeed, we are fully in agreement with the view of Gupte J that the decision in Ajab Enterprises is not and cannot be said to be good law.13. On behalf of Inspira, apart from the factual conspectus which is not disputed, the submission before us by Dr. Saraf is that Section 14 is of wide amplitude. The test is to see whether there is a substantial identity of subject matter and a pragmatic approach must be taken: RoshanlalKuthalia And Ors. v. RB Mohan Singh Oberoi. (1975) 4 SCC 628 Section 14 is not limited or confined only to cases of defect of jurisdiction but extends to other causes also as held by the Supreme Court in SAL Narayan Row &Anr. v. IshwarlalBhagwandas&Anr. (1966) 1 SCR 190 , AIR 1965 SC 1818 , (1965) 57 ITR 149 In SAL Narayan Row, the Supreme Court clearly said that the words civil proceedings (in that context in Article 132) were used in a wide sense in contradistinction to criminal proceedings and covered all actions that directly affected or related to civil rights. This view was reiterated in Ramesh &Anr. v. Seth Gendalal Motilal Patni &Anr. (1966) 3 SCR 198 , AIR 1966 SC 1445 for the purposes of Article 133 which confers appellate jurisdiction of the Supreme Court in appeals from High Court in regard to civil matters.14. The learned Single Judge held that there was no reason to see the words civil proceedings any differently for the purposes of Section 14 of the Limitation Act. No narrower view was justified. Indeed the Supreme Court itself, in MP Steel Corporation held that Section 14 needs to be construed liberally so as to advance the cause of justice. Its principle is that whenever a person pursues with due diligence another proceeding and does so bona fide, and this is proved to be abortive because it is without jurisdiction or otherwise such that no decision on merits is possible, that time ought to be excluded.15. The rational behind this is, to our mind plain. In fact, this case probably provides very good illustration of why this salutary principle enunciated by Supreme Court should apply. After all, TCS knew what Inspiras claim was. It opposed the winding up proceedings. It could hardly be suggested that those winding up proceedings should count for absolutely nothing; that limitation should continue running without exclusion; or that Inpira ought to have simultaneously filed a civil suit to save limitation. No decision came to be rendered in the winding up petition. Any narrower construction would only defeat justice. This is also not the first time that the Court has taken a such a view, as is clear from Maharashtra State Farming Corporation where this Court allowed such an exclusion of time.Stated thus, the principle is inaccurate, especially if it is based on the decision of the Supreme Court in IBA Health (India) Private Limited v. Info-Drive Systems SDN BHD. (2010) 10 SCC 553 The relevant portion is that a winding up petition could not be said to be a bona fide remedy for recovery of a disputed claimi.e., one which a company court could not entertain on well-settled principles. Otherwise, as the Supreme Court has itself held in Harinagar Sugar Mills Co. Ltd. v. MW Pradhan, Court Receiver, High Court, Bombay, (1966) 3 SCR 948 , AIR 1966 SC 1707 , (1966) 60 ITR 508 , (1966) 36 Com Cas 426 citing established law, a winding up petition is a perfectly proper remedy for enforcing payment of a just debt. It is a mode of execution which the Court gives to the creditor against a company unable to pay its debts. Our Court has followed this authority in Modern Dekor Painting Contracts Private Ltd. v. Jenson & Nicholson (India) Ltd. (1984) Mh LJ 988, 1985 Tax LR 209017. We also find it extraordinarily strange that before the learned Single Judge hearing the company petition TCS should consent to the appointment of sole arbitrator to decide the very dispute that was before the company court, only to then contend that Inspiras claim was entirely time-barred.18. As to the question of whether the reference to arbitration relates to same subject matter, little needs to be said on that score. Clearly it does.It is a liberal provision and it is substantive law granting an applicant a right to exclusion of time, i.e. an extension of limitation as it were, provided the ingredients in that Section are properly made out. | 0 | 3,023 | 1,499 | ### Instruction:
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And Anr. (2004) 3 SCC 458 In regard to Ajab Enterprises, SC Gupte, J held that the narrower view taken there could not be said to be good law in view of the completely contrary proposition set out by the Supreme Court in West Coast Paper Mills Ltd. and followed by the Supreme Court itself in M.P. Steel Corporation v. Commissioner Of Central Excise. (2015) 7 SCC 58 The views in Ajab Enterprises are also contrary to the later decision of a Division Bench of this Court in Maharashtra State Farming Corporation Ltd. v. Belapur Sugar And Allied Industries Ltd., (2004) 3 Mh LJ 414 where this Court precisely ordered such an exclusion of time. 12. Of necessity, the submission by Ms. Sethna on Ajab Enterprises results in a completely unviable position. It means that Ajab Enterprises, though plainly contrary to later decisions of the Supreme Court and our Division Bench, was nonetheless binding on Gupte J. That surely cannot be. We do not believe that the decision in SiddharamSatlingappaMhetre is an authority for any such proposition: to constitute binding precedent, the previous decision must be good law. Indeed, we are fully in agreement with the view of Gupte J that the decision in Ajab Enterprises is not and cannot be said to be good law. 13. On behalf of Inspira, apart from the factual conspectus which is not disputed, the submission before us by Dr. Saraf is that Section 14 is of wide amplitude. The test is to see whether there is a substantial identity of subject matter and a pragmatic approach must be taken: RoshanlalKuthalia And Ors. v. RB Mohan Singh Oberoi. (1975) 4 SCC 628 Section 14 is not limited or confined only to cases of defect of jurisdiction but extends to other causes also as held by the Supreme Court in SAL Narayan Row &Anr. v. IshwarlalBhagwandas&Anr. (1966) 1 SCR 190 , AIR 1965 SC 1818 , (1965) 57 ITR 149 In SAL Narayan Row, the Supreme Court clearly said that the words civil proceedings (in that context in Article 132) were used in a wide sense in contradistinction to criminal proceedings and covered all actions that directly affected or related to civil rights. This view was reiterated in Ramesh &Anr. v. Seth Gendalal Motilal Patni &Anr. (1966) 3 SCR 198 , AIR 1966 SC 1445 for the purposes of Article 133 which confers appellate jurisdiction of the Supreme Court in appeals from High Court in regard to civil matters. 14. The learned Single Judge held that there was no reason to see the words civil proceedings any differently for the purposes of Section 14 of the Limitation Act. No narrower view was justified. Indeed the Supreme Court itself, in MP Steel Corporation held that Section 14 needs to be construed liberally so as to advance the cause of justice. Its principle is that whenever a person pursues with due diligence another proceeding and does so bona fide, and this is proved to be abortive because it is without jurisdiction or otherwise such that no decision on merits is possible, that time ought to be excluded. 15. The rational behind this is, to our mind plain. In fact, this case probably provides very good illustration of why this salutary principle enunciated by Supreme Court should apply. After all, TCS knew what Inspiras claim was. It opposed the winding up proceedings. It could hardly be suggested that those winding up proceedings should count for absolutely nothing; that limitation should continue running without exclusion; or that Inpira ought to have simultaneously filed a civil suit to save limitation. No decision came to be rendered in the winding up petition. Any narrower construction would only defeat justice. This is also not the first time that the Court has taken a such a view, as is clear from Maharashtra State Farming Corporation where this Court allowed such an exclusion of time. 16. This takes us to Ms. Sethnas next submission that a winding up petition is not a bona fide remedy for recovery of a debt. Stated thus, the principle is inaccurate, especially if it is based on the decision of the Supreme Court in IBA Health (India) Private Limited v. Info-Drive Systems SDN BHD. (2010) 10 SCC 553 The relevant portion is that a winding up petition could not be said to be a bona fide remedy for recovery of a disputed claim--i.e., one which a company court could not entertain on well-settled principles. Otherwise, as the Supreme Court has itself held in Harinagar Sugar Mills Co. Ltd. v. MW Pradhan, Court Receiver, High Court, Bombay, (1966) 3 SCR 948 , AIR 1966 SC 1707 , (1966) 60 ITR 508 , (1966) 36 Com Cas 426 citing established law, a winding up petition is a perfectly proper remedy for enforcing payment of a just debt. It is a mode of execution which the Court gives to the creditor against a company unable to pay its debts. Our Court has followed this authority in Modern Dekor Painting Contracts Private Ltd. v. Jenson & Nicholson (India) Ltd. (1984) Mh LJ 988, 1985 Tax LR 2090 17. We also find it extraordinarily strange that before the learned Single Judge hearing the company petition TCS should consent to the appointment of sole arbitrator to decide the very dispute that was before the company court, only to then contend that Inspiras claim was entirely time-barred. 18. As to the question of whether the reference to arbitration relates to same subject matter, little needs to be said on that score. Clearly it does. 19. Dr. Saraf submits that, if viewed as Ms. Sethna would have us do, Section 14(1) of the Limitation Act becomes a prohibitory and penal statue rather than the reverse which is its plain intent. It is a liberal provision and it is substantive law granting an applicant a right to exclusion of time, i.e. an extension of limitation as it were, provided the ingredients in that Section are properly made out.
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that the learned Single Judge considered the case of Ajab Enterprises. In our view the learned Single Judge correctly held that the issue was no longer res integra at least in regard to the proposition that Section 14 of the Limitation Act must be interpreted to advance the cause of justice: Union of India And Ors. v. West Coast Paper Mills Ltd. And Anr. (2004) 3 SCC 458 In regard to Ajab Enterprises, SC Gupte, J held that the narrower view taken there could not be said to be good law in view of the completely contrary proposition set out by the Supreme Court in West Coast Paper Mills Ltd. and followed by the Supreme Court itself in M.P. Steel Corporation v. Commissioner Of Central Excise. (2015) 7 SCC 58 The views in Ajab Enterprises are also contrary to the later decision of a Division Bench of this Court in Maharashtra State Farming Corporation Ltd. v. Belapur Sugar And Allied Industries Ltd., (2004) 3 Mh LJ 414 where this Court precisely ordered such an exclusion of time.12. Of necessity, the submission by Ms. Sethna on Ajab Enterprises results in a completely unviable position. It means that Ajab Enterprises, though plainly contrary to later decisions of the Supreme Court and our Division Bench, was nonetheless binding on Gupte J. That surely cannot be. We do not believe that the decision in SiddharamSatlingappaMhetre is an authority for any such proposition: to constitute binding precedent, the previous decision must be good law. Indeed, we are fully in agreement with the view of Gupte J that the decision in Ajab Enterprises is not and cannot be said to be good law.13. On behalf of Inspira, apart from the factual conspectus which is not disputed, the submission before us by Dr. Saraf is that Section 14 is of wide amplitude. The test is to see whether there is a substantial identity of subject matter and a pragmatic approach must be taken: RoshanlalKuthalia And Ors. v. RB Mohan Singh Oberoi. (1975) 4 SCC 628 Section 14 is not limited or confined only to cases of defect of jurisdiction but extends to other causes also as held by the Supreme Court in SAL Narayan Row &Anr. v. IshwarlalBhagwandas&Anr. (1966) 1 SCR 190 , AIR 1965 SC 1818 , (1965) 57 ITR 149 In SAL Narayan Row, the Supreme Court clearly said that the words civil proceedings (in that context in Article 132) were used in a wide sense in contradistinction to criminal proceedings and covered all actions that directly affected or related to civil rights. This view was reiterated in Ramesh &Anr. v. Seth Gendalal Motilal Patni &Anr. (1966) 3 SCR 198 , AIR 1966 SC 1445 for the purposes of Article 133 which confers appellate jurisdiction of the Supreme Court in appeals from High Court in regard to civil matters.14. The learned Single Judge held that there was no reason to see the words civil proceedings any differently for the purposes of Section 14 of the Limitation Act. No narrower view was justified. Indeed the Supreme Court itself, in MP Steel Corporation held that Section 14 needs to be construed liberally so as to advance the cause of justice. Its principle is that whenever a person pursues with due diligence another proceeding and does so bona fide, and this is proved to be abortive because it is without jurisdiction or otherwise such that no decision on merits is possible, that time ought to be excluded.15. The rational behind this is, to our mind plain. In fact, this case probably provides very good illustration of why this salutary principle enunciated by Supreme Court should apply. After all, TCS knew what Inspiras claim was. It opposed the winding up proceedings. It could hardly be suggested that those winding up proceedings should count for absolutely nothing; that limitation should continue running without exclusion; or that Inpira ought to have simultaneously filed a civil suit to save limitation. No decision came to be rendered in the winding up petition. Any narrower construction would only defeat justice. This is also not the first time that the Court has taken a such a view, as is clear from Maharashtra State Farming Corporation where this Court allowed such an exclusion of time.Stated thus, the principle is inaccurate, especially if it is based on the decision of the Supreme Court in IBA Health (India) Private Limited v. Info-Drive Systems SDN BHD. (2010) 10 SCC 553 The relevant portion is that a winding up petition could not be said to be a bona fide remedy for recovery of a disputed claimi.e., one which a company court could not entertain on well-settled principles. Otherwise, as the Supreme Court has itself held in Harinagar Sugar Mills Co. Ltd. v. MW Pradhan, Court Receiver, High Court, Bombay, (1966) 3 SCR 948 , AIR 1966 SC 1707 , (1966) 60 ITR 508 , (1966) 36 Com Cas 426 citing established law, a winding up petition is a perfectly proper remedy for enforcing payment of a just debt. It is a mode of execution which the Court gives to the creditor against a company unable to pay its debts. Our Court has followed this authority in Modern Dekor Painting Contracts Private Ltd. v. Jenson & Nicholson (India) Ltd. (1984) Mh LJ 988, 1985 Tax LR 209017. We also find it extraordinarily strange that before the learned Single Judge hearing the company petition TCS should consent to the appointment of sole arbitrator to decide the very dispute that was before the company court, only to then contend that Inspiras claim was entirely time-barred.18. As to the question of whether the reference to arbitration relates to same subject matter, little needs to be said on that score. Clearly it does.It is a liberal provision and it is substantive law granting an applicant a right to exclusion of time, i.e. an extension of limitation as it were, provided the ingredients in that Section are properly made out.
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Poonnamma Jagadamma Vs. Narayanan Nair | be ordered for executing the decree. If necessary, an Advocate Commissioner can also be appointed by the execution Court to assist the Amin to execute the decree."6. This decision has been assailed by the Appellants mainly on the argument that the High Court exceeded its jurisdiction in exercise of powers under Section 100 of CPC. The High Court re-appreciated the evidence on record to reverse the decision of the District Court, which had allowed the appeal preferred by the Appellants by setting aside the decree passed by the Trial Court in its entirety and also dismissed the suit filed by the Respondent No.1- plaintiff. As a matter of fact, the High Court did not answer the substantial questions of law formulated by it but went on to carve out an arrangement which it found would meet the ends of justice. According to the Appellants, even though the High Court affirmed the finding recorded by the Courts below that the Respondent No.1 - plaintiff had not substantiated his title and moreso his exclusive possession over the suit property where the proposed compound wall has been allowed to be constructed, the question of granting any relief to the Respondent No.1 - plaintiff did not arise.7. Respondent No.1 on the other hand contended that the fact that he was one of the co-owners of the suit property was indisputable. Even if the 10 cents of the suit property bequeathed to Achuthan Nair (his brother) has not been demarcated, that would make no difference to the co-ownership of Respondent No.1 over the suit property. On the basis of this claim of co-ownership, there was nothing wrong in the order passed by the High Court granting limited relief to Respondent No.1 to erect the compound wall in the suit property. According to Respondent No.1, it was not the case of Appellants that the location where the compound wall has been permitted to be constructed by the High Court was not on the suit property or in any way affecting the occupation and possession of any neighbouring property including that of the Appellants bearing Survey No.2061. Respondent No.1 submitted, in that sense, the decision of the High Court was a benign direction which did not affect the rights of the Appellants in any manner. In other words, the High Court permitted the Respondent No.1 to do what he was otherwise entitled to do in law, to put up a compound wall on the suit property without affecting the rights of any neighbouring property owner. The Appellants cannot claim any right over that portion of the suit property on which the compound wall has been allowed to be constructed. According to Respondent No.1, in the fact situation of the present case, this Court ought to be loath to interfere with a just and fair order passed by the High Court and moreso because the same is not adverse to the Appellants in any manner.8. Having considered the rival submissions, we find force in the argument of Respondent No.1 that even if the claim of Respondent No.1 regarding title over the whole of the suit property is answered against him, that does not necessarily negate his claim of being a co-owner of the suit property along with his brother. The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent No.1, Achuthan Nair) under a Will executed by their father has still not been done, that would not negate the Respondent No.1 from being a co-owner in the suit property along with his brother and to have undivided share therein. Being a co-owner of the suit property, there is nothing wrong if Respondent No.1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief granted by the High Court to construct such compound wall, is very specific and in no manner likely to adversely affect the Appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf.9. So long as the compound wall is constructed by the Respondent No.1 on the portion of suit property over which the Appellants have no right, title or interest; and by leaving out the portion which has been encroached upon by the Appellants/ defendants and some more land from such trespassed portion, the Appellants can have no grievance whatsoever. It is a different matter that the High Court has not dealt with each of the substantial questions of law formulated while entertaining the second appeal. As the arrangement provided by the High Court would meet the ends of justice and also avoid any further litigation between the parties, it would not be necessary to deal with all the substantial questions of law. As a matter of fact, in absence of specific denial about the execution or existence of the said Will by the Appellants - defendants, the question of examining the issue of admissibility of that Will pales into insignificance. The High Court also justly noted that the beneficiary under the Will was not before the Court. Even for this reason, it would be unnecessary to answer the substantial questions of law formulated at the instance of the Appellants - defendants and because the nature of the arrangement predicated by the High Court is such that it would not affect the rights of the Appellants - defendants in any manner with regard to the enjoyment of the property owned or occupied by them bearing Survey No.2061 and including the stated encroached portion in Survey No.2063. In that sense, there is no subsisting cause for the Appellants to question the correctness of the Will nor is there any tangible ground to assail the arrangement specified by the High Court while disposing of the second appeal filed by Respondent No.1. | 0[ds]8. Having considered the rival submissions, we find force in the argument of Respondent No.1 that even if the claim of Respondent No.1 regarding title over the whole of the suit property is answered against him, that does not necessarily negate his claim of being aof the suit property along with his brother. The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent No.1, Achuthan Nair) under a Will executed by their father has still not been done, that would not negate the Respondent No.1 from being ain the suit property along with his brother and to have undivided share therein. Being aof the suit property, there is nothing wrong if Respondent No.1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief granted by the High Court to construct such compound wall, is very specific and in no manner likely to adversely affect the Appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf.9. So long as the compound wall is constructed by the Respondent No.1 on the portion of suit property over which the Appellants have no right, title or interest; and by leaving out the portion which has been encroached upon by the Appellants/ defendants and some more land from such trespassed portion, the Appellants can have no grievance whatsoever. It is a different matter that the High Court has not dealt with each of the substantial questions of law formulated while entertaining the second appeal. As the arrangement provided by the High Court would meet the ends of justice and also avoid any further litigation between the parties, it would not be necessary to deal with all the substantial questions of law. As a matter of fact, in absence of specific denial about the execution or existence of the said Will by the Appellantsdefendants, the question of examining the issue of admissibility of that Will pales into insignificance. The High Court also justly noted that the beneficiary under the Will was not before the Court. Even for this reason, it would be unnecessary to answer the substantial questions of law formulated at the instance of the Appellantsdefendants and because the nature of the arrangement predicated by the High Court is such that it would not affect the rights of the Appellantsdefendants in any manner with regard to the enjoyment of the property owned or occupied by them bearing Survey No.2061 and including the stated encroached portion in Survey No.2063. In that sense, there is no subsisting cause for the Appellants to question the correctness of the Will nor is there any tangible ground to assail the arrangement specified by the High Court while disposing of the second appeal filed by Respondent No.1. | 0 | 3,267 | 539 | ### Instruction:
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be ordered for executing the decree. If necessary, an Advocate Commissioner can also be appointed by the execution Court to assist the Amin to execute the decree."6. This decision has been assailed by the Appellants mainly on the argument that the High Court exceeded its jurisdiction in exercise of powers under Section 100 of CPC. The High Court re-appreciated the evidence on record to reverse the decision of the District Court, which had allowed the appeal preferred by the Appellants by setting aside the decree passed by the Trial Court in its entirety and also dismissed the suit filed by the Respondent No.1- plaintiff. As a matter of fact, the High Court did not answer the substantial questions of law formulated by it but went on to carve out an arrangement which it found would meet the ends of justice. According to the Appellants, even though the High Court affirmed the finding recorded by the Courts below that the Respondent No.1 - plaintiff had not substantiated his title and moreso his exclusive possession over the suit property where the proposed compound wall has been allowed to be constructed, the question of granting any relief to the Respondent No.1 - plaintiff did not arise.7. Respondent No.1 on the other hand contended that the fact that he was one of the co-owners of the suit property was indisputable. Even if the 10 cents of the suit property bequeathed to Achuthan Nair (his brother) has not been demarcated, that would make no difference to the co-ownership of Respondent No.1 over the suit property. On the basis of this claim of co-ownership, there was nothing wrong in the order passed by the High Court granting limited relief to Respondent No.1 to erect the compound wall in the suit property. According to Respondent No.1, it was not the case of Appellants that the location where the compound wall has been permitted to be constructed by the High Court was not on the suit property or in any way affecting the occupation and possession of any neighbouring property including that of the Appellants bearing Survey No.2061. Respondent No.1 submitted, in that sense, the decision of the High Court was a benign direction which did not affect the rights of the Appellants in any manner. In other words, the High Court permitted the Respondent No.1 to do what he was otherwise entitled to do in law, to put up a compound wall on the suit property without affecting the rights of any neighbouring property owner. The Appellants cannot claim any right over that portion of the suit property on which the compound wall has been allowed to be constructed. According to Respondent No.1, in the fact situation of the present case, this Court ought to be loath to interfere with a just and fair order passed by the High Court and moreso because the same is not adverse to the Appellants in any manner.8. Having considered the rival submissions, we find force in the argument of Respondent No.1 that even if the claim of Respondent No.1 regarding title over the whole of the suit property is answered against him, that does not necessarily negate his claim of being a co-owner of the suit property along with his brother. The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent No.1, Achuthan Nair) under a Will executed by their father has still not been done, that would not negate the Respondent No.1 from being a co-owner in the suit property along with his brother and to have undivided share therein. Being a co-owner of the suit property, there is nothing wrong if Respondent No.1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief granted by the High Court to construct such compound wall, is very specific and in no manner likely to adversely affect the Appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf.9. So long as the compound wall is constructed by the Respondent No.1 on the portion of suit property over which the Appellants have no right, title or interest; and by leaving out the portion which has been encroached upon by the Appellants/ defendants and some more land from such trespassed portion, the Appellants can have no grievance whatsoever. It is a different matter that the High Court has not dealt with each of the substantial questions of law formulated while entertaining the second appeal. As the arrangement provided by the High Court would meet the ends of justice and also avoid any further litigation between the parties, it would not be necessary to deal with all the substantial questions of law. As a matter of fact, in absence of specific denial about the execution or existence of the said Will by the Appellants - defendants, the question of examining the issue of admissibility of that Will pales into insignificance. The High Court also justly noted that the beneficiary under the Will was not before the Court. Even for this reason, it would be unnecessary to answer the substantial questions of law formulated at the instance of the Appellants - defendants and because the nature of the arrangement predicated by the High Court is such that it would not affect the rights of the Appellants - defendants in any manner with regard to the enjoyment of the property owned or occupied by them bearing Survey No.2061 and including the stated encroached portion in Survey No.2063. In that sense, there is no subsisting cause for the Appellants to question the correctness of the Will nor is there any tangible ground to assail the arrangement specified by the High Court while disposing of the second appeal filed by Respondent No.1.
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8. Having considered the rival submissions, we find force in the argument of Respondent No.1 that even if the claim of Respondent No.1 regarding title over the whole of the suit property is answered against him, that does not necessarily negate his claim of being aof the suit property along with his brother. The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent No.1, Achuthan Nair) under a Will executed by their father has still not been done, that would not negate the Respondent No.1 from being ain the suit property along with his brother and to have undivided share therein. Being aof the suit property, there is nothing wrong if Respondent No.1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief granted by the High Court to construct such compound wall, is very specific and in no manner likely to adversely affect the Appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf.9. So long as the compound wall is constructed by the Respondent No.1 on the portion of suit property over which the Appellants have no right, title or interest; and by leaving out the portion which has been encroached upon by the Appellants/ defendants and some more land from such trespassed portion, the Appellants can have no grievance whatsoever. It is a different matter that the High Court has not dealt with each of the substantial questions of law formulated while entertaining the second appeal. As the arrangement provided by the High Court would meet the ends of justice and also avoid any further litigation between the parties, it would not be necessary to deal with all the substantial questions of law. As a matter of fact, in absence of specific denial about the execution or existence of the said Will by the Appellantsdefendants, the question of examining the issue of admissibility of that Will pales into insignificance. The High Court also justly noted that the beneficiary under the Will was not before the Court. Even for this reason, it would be unnecessary to answer the substantial questions of law formulated at the instance of the Appellantsdefendants and because the nature of the arrangement predicated by the High Court is such that it would not affect the rights of the Appellantsdefendants in any manner with regard to the enjoyment of the property owned or occupied by them bearing Survey No.2061 and including the stated encroached portion in Survey No.2063. In that sense, there is no subsisting cause for the Appellants to question the correctness of the Will nor is there any tangible ground to assail the arrangement specified by the High Court while disposing of the second appeal filed by Respondent No.1.
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C.I.T.,Gujarat-I Vs. Navnit Lal Sakar Lal | the company as a Managing Director or such other date as may be mutually agreed upon between the company and the concerned Managing Director, it being clarified that the re-appointment of a Managing Director on the expiry of his present tenure of office will not amount to his having retired as Managing Director or having ceased to be a Managing Director of the Company or from the date of his death whichever shall occur first provided always that no benefit shall occur to any of the said Managing Director or his defendants as the case may be nor shall nay one of the said Managing Director or his defendants be entitled to any benefit or have any rightly, lien or interest in the aforesaid Annuity Policies until the date of the first payment of the annuity.Directors Shri Navnitlal Sakharlal, Shri Nandkishore and Shri Saurabhbhai Navnitlal did not take part in the discussions nor did they vote on the resolution.Certified true.Chairman." 4. There were similar proceedings for the subsequent assessment years in regard to the Managing Directors. The assesses did not participated in the deliberations of the Board in respect of the resolutions but they did not challenge the same and their conduct shows their acquiescence therein. 5. It is convenient now to refer, as illustrative, to the case of the assessee, Nandkishore. 6. Nandkishore claimed that the amount of Rs. 26,221/-, that had been expended by the Mills for the purchase of a deferred annuity policy for him, was not includable in his hands as a part of income from salary because it did not form part of the remuneration that was payable to him. the Income Tax officer rejected the contentions since, in his view, the payment for the purchase was made out of the remuneration that was due to Nandkishore. In appeal, the Appellate Assistant Commissioner agreed with the Income Tax Officer, Nandkishore carried the matter in appeal to the Income Tax Appellate Tribunal. The Tribunal accepted the contention on behalf of Nandkishore that if clause 6(e) of the Agreement and the Resolution of the Board were read in the proper light, it was clear that a portion of the remuneration which was utilised for the purchase of the deferred annuity policy "could not be said to have accrued to the Managing Director but was diverted away before it reached the assessee. Therefore, the amount utilised for purchase of deferred annuity policy by the Sarangpur Mills was not assessable as remuneration in the hands of the assessee under the head Income from salaries."7. Arising out of the order of the Tribunal, at the behest of the Revenue, the two questions afore-stated were referred to the High Court of Gujarat. The High Court affirmed the decision of the Tribunal. In its view, the Resolutions made it quite clear that the intention was not to create any benefit either in favour of the assessees or their dependents or to create any right, lien or interest in the policy until the date of the first payment of annuity. The payments of the annuity were to commence from the date of retirement of the assessees or from the date of their death, whichever occurred earlier. Therefore, even though the deferred annuity Policies and even though they were taken out for the benefit of the assessees and in lieu of commission payable to them, it was clearly intended by the Board that the assessees should not have any vested right in the policies. Upon this basis, it was held that the passing of the Resolutions by the Board denied the assessees the remuneration which could have become payable in those years. The intention was not to create any present right in favour of the assessees. Thus, the effect of the transaction was to postpone accrual and receipt of income. 8. We have heard learned counsel and we are inclined to take a view different from that taken by the Tribunal and the High Court.9. What is most relevant is a correct interpretation of the Resolution of the Board. Shorn of unnecessary words, they resolved, for the financial years in question, that the amount of commission payable to each of the Managing Directors under the respective Managing Director Agreements executed with each of them should be expended for the purchase of single premium deferred annuity policies on the lives of the Managing Director. The Resolutions set out the format of Resolutions to be passed by the Extraordinary General Meetings of the mills; they are in exactly the same terms. The resolutions do not refer to clause 6(e) of the Agreements. They do not say that the Managing Directors shall not be paid any remuneration or any part of such remuneration. In fact, they refer specifically to "the amount of commission payable to each of the Managing Directors" and resolve that commission payable to each of the Managing Directors shall be "expended in the purchase of annuity policies on the life of the concerned managing director." It is impossible, in the circumstances, to conclude that the amounts of the commission that were expended to purchase the policies had been diverted and had not accrued to the Managing Directors. A proper construction would be that such commission had accrued to them at the end of the relevant financial years and that thereafter the sums thereof were resolved to be spent to purchase annuity policies for each of them, with which resolutions, as the record shows, they concurred.10. It was submitted by learned counsel for the assessees that the resolutions must be so read as to mean that the Board employed clause 6(e) of the Agreements to deny the obligation to pay to the assessee the particular part of their remuneration utilised in the purchase of the annuity policies and that, therefore, there was no accrual thereof them. On the construction that we have placed on the Resolution, which appears to be the only possible construction, the submission on behalf of the assessee has to be rejected. | 1[ds]9. What is most relevant is a correct interpretation of the Resolution of the Board. Shorn of unnecessary words, they resolved, for the financial years in question, that the amount of commission payable to each of the Managing Directors under the respective Managing Director Agreements executed with each of them should be expended for the purchase of single premium deferred annuity policies on the lives of the Managing Director. The Resolutions set out the format of Resolutions to be passed by the Extraordinary General Meetings of the mills; they are in exactly the same terms. The resolutions do not refer to clause 6(e) of the Agreements. They do not say that the Managing Directors shall not be paid any remuneration or any part of such remuneration. In fact, they refer specifically to "the amount of commission payable to each of the Managing Directors" and resolve that commission payable to each of the Managing Directors shall be "expended in the purchase of annuity policies on the life of the concerned managing director." It is impossible, in the circumstances, to conclude that the amounts of the commission that were expended to purchase the policies had been diverted and had not accrued to the Managing Directors. A proper construction would be that such commission had accrued to them at the end of the relevant financial years and that thereafter the sums thereof were resolved to be spent to purchase annuity policies for each of them, with which resolutions, as the record shows, they concurred.10. It was submitted by learned counsel for the assessees that the resolutions must be so read as to mean that the Board employed clause 6(e) of the Agreements to deny the obligation to pay to the assessee the particular part of their remuneration utilised in the purchase of the annuity policies and that, therefore, there was no accrual thereof them. On the construction that we have placed on the Resolution, which appears to be the only possible construction, the submission on behalf of the assessee has to be rejected. | 1 | 1,956 | 379 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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the company as a Managing Director or such other date as may be mutually agreed upon between the company and the concerned Managing Director, it being clarified that the re-appointment of a Managing Director on the expiry of his present tenure of office will not amount to his having retired as Managing Director or having ceased to be a Managing Director of the Company or from the date of his death whichever shall occur first provided always that no benefit shall occur to any of the said Managing Director or his defendants as the case may be nor shall nay one of the said Managing Director or his defendants be entitled to any benefit or have any rightly, lien or interest in the aforesaid Annuity Policies until the date of the first payment of the annuity.Directors Shri Navnitlal Sakharlal, Shri Nandkishore and Shri Saurabhbhai Navnitlal did not take part in the discussions nor did they vote on the resolution.Certified true.Chairman." 4. There were similar proceedings for the subsequent assessment years in regard to the Managing Directors. The assesses did not participated in the deliberations of the Board in respect of the resolutions but they did not challenge the same and their conduct shows their acquiescence therein. 5. It is convenient now to refer, as illustrative, to the case of the assessee, Nandkishore. 6. Nandkishore claimed that the amount of Rs. 26,221/-, that had been expended by the Mills for the purchase of a deferred annuity policy for him, was not includable in his hands as a part of income from salary because it did not form part of the remuneration that was payable to him. the Income Tax officer rejected the contentions since, in his view, the payment for the purchase was made out of the remuneration that was due to Nandkishore. In appeal, the Appellate Assistant Commissioner agreed with the Income Tax Officer, Nandkishore carried the matter in appeal to the Income Tax Appellate Tribunal. The Tribunal accepted the contention on behalf of Nandkishore that if clause 6(e) of the Agreement and the Resolution of the Board were read in the proper light, it was clear that a portion of the remuneration which was utilised for the purchase of the deferred annuity policy "could not be said to have accrued to the Managing Director but was diverted away before it reached the assessee. Therefore, the amount utilised for purchase of deferred annuity policy by the Sarangpur Mills was not assessable as remuneration in the hands of the assessee under the head Income from salaries."7. Arising out of the order of the Tribunal, at the behest of the Revenue, the two questions afore-stated were referred to the High Court of Gujarat. The High Court affirmed the decision of the Tribunal. In its view, the Resolutions made it quite clear that the intention was not to create any benefit either in favour of the assessees or their dependents or to create any right, lien or interest in the policy until the date of the first payment of annuity. The payments of the annuity were to commence from the date of retirement of the assessees or from the date of their death, whichever occurred earlier. Therefore, even though the deferred annuity Policies and even though they were taken out for the benefit of the assessees and in lieu of commission payable to them, it was clearly intended by the Board that the assessees should not have any vested right in the policies. Upon this basis, it was held that the passing of the Resolutions by the Board denied the assessees the remuneration which could have become payable in those years. The intention was not to create any present right in favour of the assessees. Thus, the effect of the transaction was to postpone accrual and receipt of income. 8. We have heard learned counsel and we are inclined to take a view different from that taken by the Tribunal and the High Court.9. What is most relevant is a correct interpretation of the Resolution of the Board. Shorn of unnecessary words, they resolved, for the financial years in question, that the amount of commission payable to each of the Managing Directors under the respective Managing Director Agreements executed with each of them should be expended for the purchase of single premium deferred annuity policies on the lives of the Managing Director. The Resolutions set out the format of Resolutions to be passed by the Extraordinary General Meetings of the mills; they are in exactly the same terms. The resolutions do not refer to clause 6(e) of the Agreements. They do not say that the Managing Directors shall not be paid any remuneration or any part of such remuneration. In fact, they refer specifically to "the amount of commission payable to each of the Managing Directors" and resolve that commission payable to each of the Managing Directors shall be "expended in the purchase of annuity policies on the life of the concerned managing director." It is impossible, in the circumstances, to conclude that the amounts of the commission that were expended to purchase the policies had been diverted and had not accrued to the Managing Directors. A proper construction would be that such commission had accrued to them at the end of the relevant financial years and that thereafter the sums thereof were resolved to be spent to purchase annuity policies for each of them, with which resolutions, as the record shows, they concurred.10. It was submitted by learned counsel for the assessees that the resolutions must be so read as to mean that the Board employed clause 6(e) of the Agreements to deny the obligation to pay to the assessee the particular part of their remuneration utilised in the purchase of the annuity policies and that, therefore, there was no accrual thereof them. On the construction that we have placed on the Resolution, which appears to be the only possible construction, the submission on behalf of the assessee has to be rejected.
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9. What is most relevant is a correct interpretation of the Resolution of the Board. Shorn of unnecessary words, they resolved, for the financial years in question, that the amount of commission payable to each of the Managing Directors under the respective Managing Director Agreements executed with each of them should be expended for the purchase of single premium deferred annuity policies on the lives of the Managing Director. The Resolutions set out the format of Resolutions to be passed by the Extraordinary General Meetings of the mills; they are in exactly the same terms. The resolutions do not refer to clause 6(e) of the Agreements. They do not say that the Managing Directors shall not be paid any remuneration or any part of such remuneration. In fact, they refer specifically to "the amount of commission payable to each of the Managing Directors" and resolve that commission payable to each of the Managing Directors shall be "expended in the purchase of annuity policies on the life of the concerned managing director." It is impossible, in the circumstances, to conclude that the amounts of the commission that were expended to purchase the policies had been diverted and had not accrued to the Managing Directors. A proper construction would be that such commission had accrued to them at the end of the relevant financial years and that thereafter the sums thereof were resolved to be spent to purchase annuity policies for each of them, with which resolutions, as the record shows, they concurred.10. It was submitted by learned counsel for the assessees that the resolutions must be so read as to mean that the Board employed clause 6(e) of the Agreements to deny the obligation to pay to the assessee the particular part of their remuneration utilised in the purchase of the annuity policies and that, therefore, there was no accrual thereof them. On the construction that we have placed on the Resolution, which appears to be the only possible construction, the submission on behalf of the assessee has to be rejected.
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Life Insurance Corporation Of India Vs. Raja Vasireddy Komallavalli Kamba & Others | of the Corporation. On the other hand, there was a general statement that there was no concussed contract. The High Court was of the view that having regard to the conduct of the parties, there was a concluded contract. The High Court took the view that Ex. B-13 dealing with Chapter III of the Financial Powers did not categorically deal with the acceptance of propos als. The High Court was of the view that the Corporation had not filed any evidence of any order prohibiting other officers one step below in rank, in this case the Assistant Divisional Manager, to exercise the power of Divisional Manager.7. In our opinion, the High Court was in error in appreciating the facts and the evidence in this case. We cannot accept the High Courts criticism with the averment in the written statement that there was not sufficient pleading that there was no concluded contract and non- acceptance of the proposal was not sufficient averment that the Divisional Manager was the only competent authority to accept the proposal. The High Court, in our opinions was also wrong in its view about t he powers of the different authorities under Chapter III of the Standing order, 1960 dealing with the financial powers. Indeed there was no evidence that the Assistant Divisional Manager had accepted the proposal on the contrary he his deposi tion as we have indicated before had stated otherwise. He had stated that the purpose of review slip was to enable the Divisional Manager to asses the risk and take a decision. He had never stated that he had taken a decision to accept the propos al. The allegation that there was assurance on behalf of the field officer and local agent to the deceased that the payment of first premium would amount to the acceptance of the proposal cannot also be accepted firstly because factually it was not proved and secondly because there was no evidence that such could have been the deposition in law.When an insurance policy becomes effective is well-settled by the authorities but before we note the said authorities, it may be stated that it is clear that the expression "underwrite" signifies accept liability under.8. The dictionary meaning also indicates that.(See in this connection The Concise oxford Dictionary Sixth Edition p. 1267.)9. It is true that normally the expression "underwrite" is used in Marine insurance but the expression used in Chapter III of the Financial powers of the Standing order in this case specifically used the expression "underwriting and revivals" of policies in case of Life Insurance Corporation and stated that it was the Divisional Manager who was competent to underwrite policy for Rs 50, 000 and above.10. The mere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy document is not acceptance. Acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance.11. See in this connection the statement of law in Corp us Juris Secundum, Vol. XLV page 986 wherein it has been stated as:-"The mere receipt and retention of premiums until after the death of applicant does not give rise to a contract, although the circumstances may be such that approval could be inferred from retention of the premium. The mere execution of the policy is not an acceptance; an acceptance, to be complete, must be communicated to the offeror, either directly, or by some definite act, such as placing the contract in the mail. The test is not intention alone. When the application so requires, the acceptance must be evidenced by the signature of one of the companys executive officers."12. Though in certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal silence does not denote consent and no binding contract arises until the person to whom an offer is made say s or does something to signify his acceptance. Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offeror. The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Whether the final acceptance is that of the assured or insurers, however, depends simply on the way in which negotiations for an insurance have progressed.See in this connection statement of law in MacGillivray &Parkington on Insurance Law, Seventh Edition page 94 paragraph 215.13. Reference in this connection may be mad e to the Statement of law in Halsburys Laws of England 4th Edition in paragraph 399 at page 222.14. Having regard to the clear position in law about acceptance of insurance proposal and the evidence on record in this case, we are, therefore, of the opinion that the High Court was in error in coming to the conclusion that there was a concluded contract of insurance between the deceased and the Life Insurance Corporation and on that basis reversing the judgment and the decision of the learned Subordinate Judge.15. The appeal must, therefore, be allowed. We however record that in view of the fact that such a long time has elapsed and further in view of the fact that principal amount together with interest amounting to about Rs. 85, 000/- have already been paid to the wife of the deceased and his children, the Life insurance Corporation in this case does not insist on the full repayment of the sum paid and counsel on behalf of the Life Insurance Corp oration has stated that they would accept if half of what has been received by the respondents, namely principal together with interest is paid back to the Corporation. We order accordingly that the respondents will therefore pay back half of the actual amount received both of the principal together with interest within three months from this date.16 | 1[ds]In our opinion, the High Court was in error in appreciating the facts and the evidence in this case. We cannot accept the High Courts criticism with the averment in the written statement that there was not sufficient pleading that there was no concluded contract and non- acceptance of the proposal was not sufficient averment that the Divisional Manager was the only competent authority to accept the proposal. The High Court, in our opinions was also wrong in its view about t he powers of the different authorities under Chapter III of the Standing order, 1960 dealing with the financial powers. Indeed there was no evidence that the Assistant Divisional Manager had accepted the proposal on the contrary he his deposi tion as we have indicated before had stated otherwise. He had stated that the purpose of review slip was to enable the Divisional Manager to asses the risk and take a decision. He had never stated that he had taken a decision to accept the propos al. The allegation that there was assurance on behalf of the field officer and local agent to the deceased that the payment of first premium would amount to the acceptance of the proposal cannot also be accepted firstly because factually it was not proved and secondly because there was no evidence that such could have been the deposition in law.When an insurance policy becomes effective is well-settled by the authorities but before we note the said authorities, it may be stated that it is clear that the expression "underwrite" signifies accept liabilityis true that normally the expression "underwrite" is used in Marine insurance but the expression used in Chapter III of the Financial powers of the Standing order in this case specifically used the expression "underwriting and revivals" of policies in case of Life Insurance Corporation and stated that it was the Divisional Manager who was competent to underwrite policy for Rs 50, 000 andmere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy document is not acceptance. Acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption ofin this connection the statement of law in Corp us Juris Secundum, Vol. XLV page 986 wherein it has been statedmere receipt and retention of premiums until after the death of applicant does not give rise to a contract, although the circumstances may be such that approval could be inferred from retention of the premium. The mere execution of the policy is not an acceptance; an acceptance, to be complete, must be communicated to the offeror, either directly, or by some definite act, such as placing the contract in the mail. The test is not intention alone. When the application so requires, the acceptance must be evidenced by the signature of one of the companys executivein certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal silence does not denote consent and no binding contract arises until the person to whom an offer is made say s or does something to signify his acceptance. Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offeror. The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Whether the final acceptance is that of the assured or insurers, however, depends simply on the way in which negotiations for an insurance have progressed.See in this connection statement of law in MacGillivray &Parkington on Insurance Law, Seventh Edition page 94 paragraphin this connection may be mad e to the Statement of law in Halsburys Laws of England 4th Edition in paragraph 399 at pageregard to the clear position in law about acceptance of insurance proposal and the evidence on record in this case, we are, therefore, of the opinion that the High Court was in error in coming to the conclusion that there was a concluded contract of insurance between the deceased and the Life Insurance Corporation and on that basis reversing the judgment and the decision of the learned Subordinate Judge. | 1 | 3,804 | 771 | ### 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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of the Corporation. On the other hand, there was a general statement that there was no concussed contract. The High Court was of the view that having regard to the conduct of the parties, there was a concluded contract. The High Court took the view that Ex. B-13 dealing with Chapter III of the Financial Powers did not categorically deal with the acceptance of propos als. The High Court was of the view that the Corporation had not filed any evidence of any order prohibiting other officers one step below in rank, in this case the Assistant Divisional Manager, to exercise the power of Divisional Manager.7. In our opinion, the High Court was in error in appreciating the facts and the evidence in this case. We cannot accept the High Courts criticism with the averment in the written statement that there was not sufficient pleading that there was no concluded contract and non- acceptance of the proposal was not sufficient averment that the Divisional Manager was the only competent authority to accept the proposal. The High Court, in our opinions was also wrong in its view about t he powers of the different authorities under Chapter III of the Standing order, 1960 dealing with the financial powers. Indeed there was no evidence that the Assistant Divisional Manager had accepted the proposal on the contrary he his deposi tion as we have indicated before had stated otherwise. He had stated that the purpose of review slip was to enable the Divisional Manager to asses the risk and take a decision. He had never stated that he had taken a decision to accept the propos al. The allegation that there was assurance on behalf of the field officer and local agent to the deceased that the payment of first premium would amount to the acceptance of the proposal cannot also be accepted firstly because factually it was not proved and secondly because there was no evidence that such could have been the deposition in law.When an insurance policy becomes effective is well-settled by the authorities but before we note the said authorities, it may be stated that it is clear that the expression "underwrite" signifies accept liability under.8. The dictionary meaning also indicates that.(See in this connection The Concise oxford Dictionary Sixth Edition p. 1267.)9. It is true that normally the expression "underwrite" is used in Marine insurance but the expression used in Chapter III of the Financial powers of the Standing order in this case specifically used the expression "underwriting and revivals" of policies in case of Life Insurance Corporation and stated that it was the Divisional Manager who was competent to underwrite policy for Rs 50, 000 and above.10. The mere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy document is not acceptance. Acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance.11. See in this connection the statement of law in Corp us Juris Secundum, Vol. XLV page 986 wherein it has been stated as:-"The mere receipt and retention of premiums until after the death of applicant does not give rise to a contract, although the circumstances may be such that approval could be inferred from retention of the premium. The mere execution of the policy is not an acceptance; an acceptance, to be complete, must be communicated to the offeror, either directly, or by some definite act, such as placing the contract in the mail. The test is not intention alone. When the application so requires, the acceptance must be evidenced by the signature of one of the companys executive officers."12. Though in certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal silence does not denote consent and no binding contract arises until the person to whom an offer is made say s or does something to signify his acceptance. Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offeror. The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Whether the final acceptance is that of the assured or insurers, however, depends simply on the way in which negotiations for an insurance have progressed.See in this connection statement of law in MacGillivray &Parkington on Insurance Law, Seventh Edition page 94 paragraph 215.13. Reference in this connection may be mad e to the Statement of law in Halsburys Laws of England 4th Edition in paragraph 399 at page 222.14. Having regard to the clear position in law about acceptance of insurance proposal and the evidence on record in this case, we are, therefore, of the opinion that the High Court was in error in coming to the conclusion that there was a concluded contract of insurance between the deceased and the Life Insurance Corporation and on that basis reversing the judgment and the decision of the learned Subordinate Judge.15. The appeal must, therefore, be allowed. We however record that in view of the fact that such a long time has elapsed and further in view of the fact that principal amount together with interest amounting to about Rs. 85, 000/- have already been paid to the wife of the deceased and his children, the Life insurance Corporation in this case does not insist on the full repayment of the sum paid and counsel on behalf of the Life Insurance Corp oration has stated that they would accept if half of what has been received by the respondents, namely principal together with interest is paid back to the Corporation. We order accordingly that the respondents will therefore pay back half of the actual amount received both of the principal together with interest within three months from this date.16
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1
### Explanation:
In our opinion, the High Court was in error in appreciating the facts and the evidence in this case. We cannot accept the High Courts criticism with the averment in the written statement that there was not sufficient pleading that there was no concluded contract and non- acceptance of the proposal was not sufficient averment that the Divisional Manager was the only competent authority to accept the proposal. The High Court, in our opinions was also wrong in its view about t he powers of the different authorities under Chapter III of the Standing order, 1960 dealing with the financial powers. Indeed there was no evidence that the Assistant Divisional Manager had accepted the proposal on the contrary he his deposi tion as we have indicated before had stated otherwise. He had stated that the purpose of review slip was to enable the Divisional Manager to asses the risk and take a decision. He had never stated that he had taken a decision to accept the propos al. The allegation that there was assurance on behalf of the field officer and local agent to the deceased that the payment of first premium would amount to the acceptance of the proposal cannot also be accepted firstly because factually it was not proved and secondly because there was no evidence that such could have been the deposition in law.When an insurance policy becomes effective is well-settled by the authorities but before we note the said authorities, it may be stated that it is clear that the expression "underwrite" signifies accept liabilityis true that normally the expression "underwrite" is used in Marine insurance but the expression used in Chapter III of the Financial powers of the Standing order in this case specifically used the expression "underwriting and revivals" of policies in case of Life Insurance Corporation and stated that it was the Divisional Manager who was competent to underwrite policy for Rs 50, 000 andmere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy document is not acceptance. Acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption ofin this connection the statement of law in Corp us Juris Secundum, Vol. XLV page 986 wherein it has been statedmere receipt and retention of premiums until after the death of applicant does not give rise to a contract, although the circumstances may be such that approval could be inferred from retention of the premium. The mere execution of the policy is not an acceptance; an acceptance, to be complete, must be communicated to the offeror, either directly, or by some definite act, such as placing the contract in the mail. The test is not intention alone. When the application so requires, the acceptance must be evidenced by the signature of one of the companys executivein certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal silence does not denote consent and no binding contract arises until the person to whom an offer is made say s or does something to signify his acceptance. Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offeror. The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Whether the final acceptance is that of the assured or insurers, however, depends simply on the way in which negotiations for an insurance have progressed.See in this connection statement of law in MacGillivray &Parkington on Insurance Law, Seventh Edition page 94 paragraphin this connection may be mad e to the Statement of law in Halsburys Laws of England 4th Edition in paragraph 399 at pageregard to the clear position in law about acceptance of insurance proposal and the evidence on record in this case, we are, therefore, of the opinion that the High Court was in error in coming to the conclusion that there was a concluded contract of insurance between the deceased and the Life Insurance Corporation and on that basis reversing the judgment and the decision of the learned Subordinate Judge.
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Visakhapatnam Municipality Vs. Kandregula Nukaraju & Ors | limits. Qua the areas newly included within the municipal limits, the tax was being imposed for the first time and therefore it was incumbent on the Municipality to follow the procedure prescribed by the first proviso to section 81( 2). Residents and taxpayers of those areas, like respondents 1 to 36, never had an opportunity to object to the imposition of the tax and that valuable opportunity cannot be denied to them. It is obligatory upon the Municipality not only to invite objections to the proposed tax but also to consider the objections received by it within the specified period. Such period has to be reasonable, not being less than one month. The policy of the law is to afford to those likely to be affected by the imposition of the tax a reasonable opportunity to object to the proposed levy.According to the appellant, the residents of Ramakrishnapuram and Sriharipuram had an opportunity to object to the imposition of the tax when the State Government issued a notification under section 3(1)(b) of the Act declaring its intention to include the two villages within the limits of the municipality. It is not possible to accept this submission either. When the State Government issues a notification under any of the clauses of section 3(1), any resident of the local area concerned or any tax payer of the municipality can "object to anything therein contained" meaning thereby, anything contained in the notification. A notification issued under section 3 (1) (b) contains only the declaration of the Governments intention "to include within a municipality any local area in the vicinity thereof and defined in such notification". The rig ht of objection would therefore be limited to the question whether a particular area should, as proposed, be included within the municipal limits. It would be premature at that stage to offer objections to the imposition of any tax because it is only after the final Notification is issued under section 3(3) that the question would at all arise as regards the imposition of a tax on the newly included areas. A notification under section 3(3) has to be followed by a resolution under section 81(1) if the municipality wants to impose a tax, and for the resolution to be effective, the procedure prescribed by the first proviso to section 81(2) has to be followed. The appellant municipality short- circuited this mandatory procedure and thereby deprived respondents 1 to 36 of the valuable right of objecting to the imposition of the tax.9. Finally, relying on section 3(4) of the Act, learned counsel for the appellant contended that the inclusion of the two villages within the municipal area attracts of its own force every provision of the Act with effect from the date on which the final notification is published by the Government under section 3(3). This argument is said to find support in a decision of this Court in Atlas Cycle Industries Ltd. v. State of Haryana &Anr.([1972] 1 S.C.R. 127.). Far from supporting the argument, we consider that the decision shows how a provision like the one contained in Section 3(4) cannot have the effect contended for by the "appellant in the Atlas Cycle case, section 5(4) of the Punjab Municipality Act. 1911 provided that when any local area was included in a municipality, "this Act and............... all rules, bye laws, orders, directions and powers made, issued or conferred under this Act and in force throughout the whole municipality at the time, shall apply to such areas". The industrial area within which the factory of the Atlas Cycle was situated was by a notification included with in the municipality of Sonepat. The municipality thereafter purported to impose octroi duty on the goods manufactured, by the company without following the procedure corresponding to that prescribed by sections 81 and 83 of the Act. It was held by this Court that since section 5(4) of the Punjab Act did not, significantly, refer to notifications and since section 62(10) of the Punjab Act spoke of "notification" for the imposition of taxes, it was not competent to the municipality to levy and collect octroi from the company on the strength merely of the provision contained in section 5(4) of the Punjab Act. In the instant case, what section 3(4) provides is that once a notification including any area within a municipality is published under section 3(3), "The provisions of this Act shall come into force into ........ any municipality or part thereof.. .....on the date of publication of the notification under sub-section (3), if such date is the first day of April, or in any other case, on the first day of April immediately succeeding the date of publication of such notification". Thus. by section 3(4), once a notification is issued under section 3(3), all the provisions of the Act come into force. That means that sections 81 and 83, which are a part of the act, would also apply to the entire Municipal area. It would then be obligatory for the municipality to follow the procedure prescribed in these sections. Taxes can be imposed under the Act only by passing appropriate resolutions under section 81. Section 3(4) does not provide that on the inclusion of a new area within a municipality, the resolutions passed by the municipal council before such inclusion will automatically apply to the new area. Plainly, such could not be the intention of the legislature in view of the importance which it has attached to the right of the citizens to object to the imposition of a proposed tax. Though, therefore , by reason of section 3(4) the provisions of the Act would apply to the new areas included within a municipality, it is not competent to the municipality to take resource to the resolution passed for imposing tax on the old areas for the purpose of levying taxes on new areas. The procedure prescribed by section 81 and 83 must be followed if a tax is proposed to be levied on the new areas. | 0[ds]The circumstance that whereas the preliminary notification declaring the intention of the State Government to include new areas within the municipal limits was issued under the District Municipalities Act 1920, the final notification confirming that intention was issued under the Act presents no difficulty. In so far as relevant, Schedule IX clause 13 of the Act, read with clause 1, provides that any action taken under the District Municipalities Act, 1920 by any authority before the commencement of the Act shall, unless inconsistent with the Act be deemed to have been taken by the authority competent to take such action under the Act. The preliminary notification, though issued under section 4(1) (c) of the 1920 Act must therefore be deemed to have been issued under section 3(1)(b) of the Act. The inclusion of the villages of Ramakrishnapuram and Sriharipuram within the limits of the Visakhapatnam Municipality is accordingly inprovision cannot justify the imposition of tax under the repealed Act of 1920 on properties situated in the newly included areas. In the first place, as the very title of Schedule IX shows, the provisions contained in the Schedule are of a transitional nature. They are intended to apply during the period of transition following upon the repeal of old municipal laws and the introduction of the new law. Some time must necessarily elapse before a municipality can act under the new law but taxes have all the same to the imposed and collected during thethe procedure prescribed by the first proviso to section 81(2) was not followed in regard to the period prior to October 1, 1970 the levy of property tax on the properties of respondents 1 to 36 for that period is without the authority of law and consequentlyis not possible to accept this submission. The Municipality might have been levying property tax since long on properties situated within its limits but until April 1, 1966 the villages of Rarmakrishnapuram and Shriharipuram were outside those limits. Qua the areas newly included within the municipal limits, the tax was being imposed for the first time and therefore it was incumbent on the Municipality to follow the procedure prescribed by the first proviso to section 81( 2). Residents and taxpayers of those areas, like respondents 1 to 36, never had an opportunity to object to the imposition of the tax and that valuable opportunity cannot be denied to them. It is obligatory upon the Municipality not only to invite objections to the proposed tax but also to consider the objections received by it within the specified period. Such period has to be reasonable, not being less than one month. The policy of the law is to afford to those likely to be affected by the imposition of the tax a reasonable opportunity to object to the proposedis not possible to accept this submission either. When the State Government issues a notification under any of the clauses of section 3(1), any resident of the local area concerned or any tax payer of the municipality can "object to anything therein contained" meaning thereby, anything contained in the notification. A notification issued under section 3 (1) (b) contains only the declaration of the Governments intention "to include within a municipality any local area in the vicinity thereof and defined in such notification". The rig ht of objection would therefore be limited to the question whether a particular area should, as proposed, be included within the municipal limits. It would be premature at that stage to offer objections to the imposition of any tax because it is only after the final Notification is issued under section 3(3) that the question would at all arise as regards the imposition of a tax on the newly included areas. A notification under section 3(3) has to be followed by a resolution under section 81(1) if the municipality wants to impose a tax, and for the resolution to be effective, the procedure prescribed by the first proviso to section 81(2) has to be followed. The appellant municipality short- circuited this mandatory procedure and thereby deprived respondents 1 to 36 of the valuable right of objecting to the imposition of thefrom supporting the argument, we consider that the decision shows how a provision like the one contained in Section 3(4) cannot have the effect contended for by the "appellant in the Atlas Cycle case, section 5(4) of the Punjab Municipality Act. 1911 provided that when any local area was included in a municipality, "this Act and............... all rules, bye laws, orders, directions and powers made, issued or conferred under this Act and in force throughout the whole municipality at the time, shall apply to suchthe instant case, what section 3(4) provides is that once a notification including any area within a municipality is published under section 3(3), "The provisions of this Act shall come into force into ........ any municipality or part thereof.. .....on the date of publication of the notification under sub-section (3), if such date is the first day of April, or in any other case, on the first day of April immediately succeeding the date of publication of such notification". Thus. by section 3(4), once a notification is issued under section 3(3), all the provisions of the Act come into force. That means that sections 81 and 83, which are a part of the act, would also apply to the entire Municipal area. It would then be obligatory for the municipality to follow the procedure prescribed in these sections. Taxes can be imposed under the Act only by passing appropriate resolutions under section 81. Section 3(4) does not provide that on the inclusion of a new area within a municipality, the resolutions passed by the municipal council before such inclusion will automatically apply to the new area. Plainly, such could not be the intention of the legislature in view of the importance which it has attached to the right of the citizens to object to the imposition of a proposed tax. Though, therefore , by reason of section 3(4) the provisions of the Act would apply to the new areas included within a municipality, it is not competent to the municipality to take resource to the resolution passed for imposing tax on the old areas for the purpose of levying taxes on new areas. The procedure prescribed by section 81 and 83 must be followed if a tax is proposed to be levied on the new areas. | 0 | 3,330 | 1,220 | ### 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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limits. Qua the areas newly included within the municipal limits, the tax was being imposed for the first time and therefore it was incumbent on the Municipality to follow the procedure prescribed by the first proviso to section 81( 2). Residents and taxpayers of those areas, like respondents 1 to 36, never had an opportunity to object to the imposition of the tax and that valuable opportunity cannot be denied to them. It is obligatory upon the Municipality not only to invite objections to the proposed tax but also to consider the objections received by it within the specified period. Such period has to be reasonable, not being less than one month. The policy of the law is to afford to those likely to be affected by the imposition of the tax a reasonable opportunity to object to the proposed levy.According to the appellant, the residents of Ramakrishnapuram and Sriharipuram had an opportunity to object to the imposition of the tax when the State Government issued a notification under section 3(1)(b) of the Act declaring its intention to include the two villages within the limits of the municipality. It is not possible to accept this submission either. When the State Government issues a notification under any of the clauses of section 3(1), any resident of the local area concerned or any tax payer of the municipality can "object to anything therein contained" meaning thereby, anything contained in the notification. A notification issued under section 3 (1) (b) contains only the declaration of the Governments intention "to include within a municipality any local area in the vicinity thereof and defined in such notification". The rig ht of objection would therefore be limited to the question whether a particular area should, as proposed, be included within the municipal limits. It would be premature at that stage to offer objections to the imposition of any tax because it is only after the final Notification is issued under section 3(3) that the question would at all arise as regards the imposition of a tax on the newly included areas. A notification under section 3(3) has to be followed by a resolution under section 81(1) if the municipality wants to impose a tax, and for the resolution to be effective, the procedure prescribed by the first proviso to section 81(2) has to be followed. The appellant municipality short- circuited this mandatory procedure and thereby deprived respondents 1 to 36 of the valuable right of objecting to the imposition of the tax.9. Finally, relying on section 3(4) of the Act, learned counsel for the appellant contended that the inclusion of the two villages within the municipal area attracts of its own force every provision of the Act with effect from the date on which the final notification is published by the Government under section 3(3). This argument is said to find support in a decision of this Court in Atlas Cycle Industries Ltd. v. State of Haryana &Anr.([1972] 1 S.C.R. 127.). Far from supporting the argument, we consider that the decision shows how a provision like the one contained in Section 3(4) cannot have the effect contended for by the "appellant in the Atlas Cycle case, section 5(4) of the Punjab Municipality Act. 1911 provided that when any local area was included in a municipality, "this Act and............... all rules, bye laws, orders, directions and powers made, issued or conferred under this Act and in force throughout the whole municipality at the time, shall apply to such areas". The industrial area within which the factory of the Atlas Cycle was situated was by a notification included with in the municipality of Sonepat. The municipality thereafter purported to impose octroi duty on the goods manufactured, by the company without following the procedure corresponding to that prescribed by sections 81 and 83 of the Act. It was held by this Court that since section 5(4) of the Punjab Act did not, significantly, refer to notifications and since section 62(10) of the Punjab Act spoke of "notification" for the imposition of taxes, it was not competent to the municipality to levy and collect octroi from the company on the strength merely of the provision contained in section 5(4) of the Punjab Act. In the instant case, what section 3(4) provides is that once a notification including any area within a municipality is published under section 3(3), "The provisions of this Act shall come into force into ........ any municipality or part thereof.. .....on the date of publication of the notification under sub-section (3), if such date is the first day of April, or in any other case, on the first day of April immediately succeeding the date of publication of such notification". Thus. by section 3(4), once a notification is issued under section 3(3), all the provisions of the Act come into force. That means that sections 81 and 83, which are a part of the act, would also apply to the entire Municipal area. It would then be obligatory for the municipality to follow the procedure prescribed in these sections. Taxes can be imposed under the Act only by passing appropriate resolutions under section 81. Section 3(4) does not provide that on the inclusion of a new area within a municipality, the resolutions passed by the municipal council before such inclusion will automatically apply to the new area. Plainly, such could not be the intention of the legislature in view of the importance which it has attached to the right of the citizens to object to the imposition of a proposed tax. Though, therefore , by reason of section 3(4) the provisions of the Act would apply to the new areas included within a municipality, it is not competent to the municipality to take resource to the resolution passed for imposing tax on the old areas for the purpose of levying taxes on new areas. The procedure prescribed by section 81 and 83 must be followed if a tax is proposed to be levied on the new areas.
### Response:
0
### Explanation:
1920 by any authority before the commencement of the Act shall, unless inconsistent with the Act be deemed to have been taken by the authority competent to take such action under the Act. The preliminary notification, though issued under section 4(1) (c) of the 1920 Act must therefore be deemed to have been issued under section 3(1)(b) of the Act. The inclusion of the villages of Ramakrishnapuram and Sriharipuram within the limits of the Visakhapatnam Municipality is accordingly inprovision cannot justify the imposition of tax under the repealed Act of 1920 on properties situated in the newly included areas. In the first place, as the very title of Schedule IX shows, the provisions contained in the Schedule are of a transitional nature. They are intended to apply during the period of transition following upon the repeal of old municipal laws and the introduction of the new law. Some time must necessarily elapse before a municipality can act under the new law but taxes have all the same to the imposed and collected during thethe procedure prescribed by the first proviso to section 81(2) was not followed in regard to the period prior to October 1, 1970 the levy of property tax on the properties of respondents 1 to 36 for that period is without the authority of law and consequentlyis not possible to accept this submission. The Municipality might have been levying property tax since long on properties situated within its limits but until April 1, 1966 the villages of Rarmakrishnapuram and Shriharipuram were outside those limits. Qua the areas newly included within the municipal limits, the tax was being imposed for the first time and therefore it was incumbent on the Municipality to follow the procedure prescribed by the first proviso to section 81( 2). Residents and taxpayers of those areas, like respondents 1 to 36, never had an opportunity to object to the imposition of the tax and that valuable opportunity cannot be denied to them. It is obligatory upon the Municipality not only to invite objections to the proposed tax but also to consider the objections received by it within the specified period. Such period has to be reasonable, not being less than one month. The policy of the law is to afford to those likely to be affected by the imposition of the tax a reasonable opportunity to object to the proposedis not possible to accept this submission either. When the State Government issues a notification under any of the clauses of section 3(1), any resident of the local area concerned or any tax payer of the municipality can "object to anything therein contained" meaning thereby, anything contained in the notification. A notification issued under section 3 (1) (b) contains only the declaration of the Governments intention "to include within a municipality any local area in the vicinity thereof and defined in such notification". The rig ht of objection would therefore be limited to the question whether a particular area should, as proposed, be included within the municipal limits. It would be premature at that stage to offer objections to the imposition of any tax because it is only after the final Notification is issued under section 3(3) that the question would at all arise as regards the imposition of a tax on the newly included areas. A notification under section 3(3) has to be followed by a resolution under section 81(1) if the municipality wants to impose a tax, and for the resolution to be effective, the procedure prescribed by the first proviso to section 81(2) has to be followed. The appellant municipality short- circuited this mandatory procedure and thereby deprived respondents 1 to 36 of the valuable right of objecting to the imposition of thefrom supporting the argument, we consider that the decision shows how a provision like the one contained in Section 3(4) cannot have the effect contended for by the "appellant in the Atlas Cycle case, section 5(4) of the Punjab Municipality Act. 1911 provided that when any local area was included in a municipality, "this Act and............... all rules, bye laws, orders, directions and powers made, issued or conferred under this Act and in force throughout the whole municipality at the time, shall apply to suchthe instant case, what section 3(4) provides is that once a notification including any area within a municipality is published under section 3(3), "The provisions of this Act shall come into force into ........ any municipality or part thereof.. .....on the date of publication of the notification under sub-section (3), if such date is the first day of April, or in any other case, on the first day of April immediately succeeding the date of publication of such notification". Thus. by section 3(4), once a notification is issued under section 3(3), all the provisions of the Act come into force. That means that sections 81 and 83, which are a part of the act, would also apply to the entire Municipal area. It would then be obligatory for the municipality to follow the procedure prescribed in these sections. Taxes can be imposed under the Act only by passing appropriate resolutions under section 81. Section 3(4) does not provide that on the inclusion of a new area within a municipality, the resolutions passed by the municipal council before such inclusion will automatically apply to the new area. Plainly, such could not be the intention of the legislature in view of the importance which it has attached to the right of the citizens to object to the imposition of a proposed tax. Though, therefore , by reason of section 3(4) the provisions of the Act would apply to the new areas included within a municipality, it is not competent to the municipality to take resource to the resolution passed for imposing tax on the old areas for the purpose of levying taxes on new areas. The procedure prescribed by section 81 and 83 must be followed if a tax is proposed to be levied on the new areas.
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Commissioner of Income Tax Vs. Shilpi Advertising Limited | The Tribunal and the High Court declined the application of the Revenue for reference of the following question :"Whether, the Tribunal is right in law and on facts in holding that the assessee is an industrial company entitled for concessional rate of tax?" 2. The basis of the refusal was that this was not a referable question of law. 3. We have perused the relevant portion of the order of the Tribunal where the activities of the assessee are listed, thus :"(i) Production of design and art works which serve as the basic material for publication of advertisements in newspapers, periodicals, technical journals, souvenirs, etc.(ii) Preparation of print material like calendars, posters, leaflets, booklets, etc., including the blocks thereof.(iii) Production of software for audio visuals, advertising films, etc., for publicity through cinema theatres and other shows.(iv) Commercial production of spots, jingles for publicity through radio and similar spots and advertising films for telecast on T. V.(v) Preparation of designs for fabrication and erection of hoardings for outdoor publicity.(vi) Production of publicity texts including for the press, direct mail product literature etc." * Based thereon, the Tribunal held that these activities amounted to processing and that, therefore, the company was eligible to be treated as an industrial company. | 0[ds]3. We have perused the relevant portion of the order of the Tribunal where the activities of the assessee are listed, thus :"(i) Production of design and art works which serve as the basic material for publication of advertisements in newspapers, periodicals, technical journals, souvenirs, etc.(ii) Preparation of print material like calendars, posters, leaflets, booklets, etc., including the blocks thereof.(iii) Production of software for audio visuals, advertising films, etc., for publicity through cinema theatres and other shows.(iv) Commercial production of spots, jingles for publicity through radio and similar spots and advertising films for telecast on T. V.(v) Preparation of designs for fabrication and erection of hoardings for outdoor publicity.(vi) Production of publicity texts including for the press, direct mail product literature etc."thereon, the Tribunal held that these activities amounted to processing and that, therefore, the company was eligible to be treated as an industrial company. | 0 | 259 | 195 | ### 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:
The Tribunal and the High Court declined the application of the Revenue for reference of the following question :"Whether, the Tribunal is right in law and on facts in holding that the assessee is an industrial company entitled for concessional rate of tax?" 2. The basis of the refusal was that this was not a referable question of law. 3. We have perused the relevant portion of the order of the Tribunal where the activities of the assessee are listed, thus :"(i) Production of design and art works which serve as the basic material for publication of advertisements in newspapers, periodicals, technical journals, souvenirs, etc.(ii) Preparation of print material like calendars, posters, leaflets, booklets, etc., including the blocks thereof.(iii) Production of software for audio visuals, advertising films, etc., for publicity through cinema theatres and other shows.(iv) Commercial production of spots, jingles for publicity through radio and similar spots and advertising films for telecast on T. V.(v) Preparation of designs for fabrication and erection of hoardings for outdoor publicity.(vi) Production of publicity texts including for the press, direct mail product literature etc." * Based thereon, the Tribunal held that these activities amounted to processing and that, therefore, the company was eligible to be treated as an industrial company.
### Response:
0
### Explanation:
3. We have perused the relevant portion of the order of the Tribunal where the activities of the assessee are listed, thus :"(i) Production of design and art works which serve as the basic material for publication of advertisements in newspapers, periodicals, technical journals, souvenirs, etc.(ii) Preparation of print material like calendars, posters, leaflets, booklets, etc., including the blocks thereof.(iii) Production of software for audio visuals, advertising films, etc., for publicity through cinema theatres and other shows.(iv) Commercial production of spots, jingles for publicity through radio and similar spots and advertising films for telecast on T. V.(v) Preparation of designs for fabrication and erection of hoardings for outdoor publicity.(vi) Production of publicity texts including for the press, direct mail product literature etc."thereon, the Tribunal held that these activities amounted to processing and that, therefore, the company was eligible to be treated as an industrial company.
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Lachhmi Narain Singh (D) Through LRs & Ors Vs. Sarjug Singh (Dead) Through LRs. & Ors | there is no substance in the present contention. (emphasis in original) 21. A similar view was taken by George Rankin, J. in the decision of Privy Council in Gopal Das v. Sri Thakurji AIR 1943 PC 83 where it was held that Objection as to the mode of proof must be taken when the document is tendered and before it is marked as an exhibit. It cannot be taken in appeal. Objection as to mode of proof should be taken before a document is admitted and marked as exhibit. In present case probate applicant never raised any objection in regards to mode of proof of cancellation deed before the Trial Court, as is evident from perusal of records and this must be held against him. 22. In support of our above conclusion, we may usefully refer to the ratio in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple (2003) 8 SCC 752 where Justice Ashok Bhan while dealing with the aspect of disallowing objection as to mode of proof at appellant stage as a rule of fair play to avoid prejudice to the other side, said as follows:- 20. …….…. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence……… (emphasis in original) 23. This Court in the opinion written by Justice S. H. Kapadia in Dayamathi Bai v. KM Shaffi (2004) 7 SCC 107 has similarly held that objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. Moreover, objection is to be taken before the document is marked as an exhibit and admitted in Court. 24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E. Venkatachala (Supra). 25. In consequence of above, we are of the considered opinion that the High Court had erred by ignoring the material evidence in disbelieving the Cancellation Deed and on that score declaring that the applicant is entitled to grant of probate of the Will (Ext. 2). Given the fact that Probate applicant never raised any objection regarding the mode of proof before the trial court, there was no occasion for the High Court to say that it was the duty of defendant to produce original deed of cancellation. The reliance therefore on the opinion of Lord Thankerton in Babu Anand Behari v. Dinshow & Co. AIR 1946 PC 24 is found to be unjustified. This is because in that case, the authenticity of some extract of power of attorney, was questioned but in the present case the certified copy of the registered cancellation deed is produced and most importantly, the same was not objected. Moreover, the plea of mode of proof was never raised before the trial Court and therefore High Courts reliance on aforementioned case to support the applicant is unacceptable. 26. On the basis of the above examination, it is our considered opinion that the Trial Court was right in holding that Rajendra was medically fit and had cancelled the Will himself. It is also seen that the evidences of the relevant OWs have withstood the scrutiny of the Trial Court and those have remained unshaken and should be trusted. Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, we find merit in the case of the objectors. | 1[ds]15. The High Court in our assessment, failed to give due weightage to the evidence of OW-3, OW-4 and OW-5 who led evidence on genuineness of the cancellation deed. Instead, erroneous presumption was drawn on impersonation and incapability of the testator, to visit the office of the Sub-Registrar to register the Cancellation Deed.16. That apart, the probate applicant never opposed the acceptance and marking of the concerned cancellation deed, in the trial Court. Therefore, in the face of the Experts Report (Ext. B), when the Deed of Cancellation (Ext. C) were marked without any objection before the trial Court, those cannot be treated as inadmissible and should have been accepted as genuine, particularly in view of the testimony of OW-3, OW-4 and OW-5, who stood firm on execution of the registered revocation deed by the testator, Rajendra Singh.17. On the issue of testators thumb impression on the cancellation deed, it is telling that all the four deeds executed by Rajendra Singh in his lifetime, contained his thumb impression and not his signature. Therefore, adverse presumption on genuineness of the cancellation deed cannot be drawn merely because the testator chose to append his thumb impression. That apart, the Ext. B Report of the handwriting expert (OW-3) clearly indicates that the thumb impression on all the documents placed before the Experts opinion are of the same person i.e. of Rajendra Singh. Since the said Ext. B was marked in Court, without objection from the applicant, the genuineness of the same cannot be allowed to be questioned before the appellate Court. A contrary inference according to our opinion, was erroneously drawn by the High court by referring to the health condition of the testator, when the revocation deed was registered.18. The key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible. Therefore, adverse conclusion should not be drawn for affixing thumb impression instead of signing documents of property transaction. Therefore, genuineness of the Cancellation deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person, affixed his thumb impression. This is more so in this case since the testators thumb impression was proved to be genuine by the expert.19. Next, we need to consider the implication of the conduct of the objectors, who did not produce the original deed of cancellation. They also failed to take any steps to produce the original (reported to be in possession of Yugal Kishore Singh). On this, the probate applicant neither objected to production of certified copy nor insisted on production of the original Cancellation Deed. Mr. Abhay Kumar, learned counsel however contended that even the Trial Court had not pressed for production of the original Cancellation Deed. As can be seen, the probate objectors never objected to presentation of the certified copy of Cancellation Deed. Before the trial Court, probate applicant primarily argued that Rajendra was keeping ill -health and it was not possible for him to have gone alone to the Sub- Registrars office for getting the Cancellation Deed registered. When this was the contention of the applicant and the concerned deed was introduced and marked without protest, the High court in the face of overwhelming evidence in support of the genuineness of the cancellation deed, should not have drawn an adverse inference against the objectors by referring to the health condition of the testator.20. In such scenario, where no protest was registered by the probate applicant against production of certified copy of the Cancellation Deed, he cannot later be allowed to take up the plea of nonproduction of original cancellation deed in course of the appellate proceeding. As already noted, the main contention of probate applicants was that the mode of proof of Cancellation deed was inadequate. However, such was not the stand of the probate applicants before the Trial Court. The objection as to the admissibility of a registered document must be raised at the earliest stage before the trial court and the objection could not have been taken in appeal, for the first time. On this we may draw support from observations made by Justice Ameer Ali in Padman v. Hanwanta AIR 1915 PC 111 where the following was set out by the Privy Council.The defendants have now appealed to His Majestyin-Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the Will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrars office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention. (emphasis in original)22. In support of our above conclusion, we may usefully refer to the ratio in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple (2003) 8 SCC 752 where Justice Ashok Bhan while dealing with the aspect of disallowing objection as to mode of proof at appellant stage as a rule of fair play to avoid prejudice to the other side, said as follows:-20. …….…. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence……… (emphasis in original)23. This Court in the opinion written by Justice S. H. Kapadia in Dayamathi Bai v. KM Shaffi (2004) 7 SCC 107 has similarly held that objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. Moreover, objection is to be taken before the document is marked as an exhibit and admitted in Court.24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E. Venkatachala (Supra).25. In consequence of above, we are of the considered opinion that the High Court had erred by ignoring the material evidence in disbelieving the Cancellation Deed and on that score declaring that the applicant is entitled to grant of probate of the Will (Ext. 2). Given the fact that Probate applicant never raised any objection regarding the mode of proof before the trial court, there was no occasion for the High Court to say that it was the duty of defendant to produce original deed of cancellation. The reliance therefore on the opinion of Lord Thankerton in Babu Anand Behari v. Dinshow & Co. AIR 1946 PC 24 is found to be unjustified. This is because in that case, the authenticity of some extract of power of attorney, was questioned but in the present case the certified copy of the registered cancellation deed is produced and most importantly, the same was not objected. Moreover, the plea of mode of proof was never raised before the trial Court and therefore High Courts reliance on aforementioned case to support the applicant is unacceptable.26. On the basis of the above examination, it is our considered opinion that the Trial Court was right in holding that Rajendra was medically fit and had cancelled the Will himself. It is also seen that the evidences of the relevant OWs have withstood the scrutiny of the Trial Court and those have remained unshaken and should be trusted. Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, we find merit in the case of the objectors. | 1 | 3,650 | 1,876 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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there is no substance in the present contention. (emphasis in original) 21. A similar view was taken by George Rankin, J. in the decision of Privy Council in Gopal Das v. Sri Thakurji AIR 1943 PC 83 where it was held that Objection as to the mode of proof must be taken when the document is tendered and before it is marked as an exhibit. It cannot be taken in appeal. Objection as to mode of proof should be taken before a document is admitted and marked as exhibit. In present case probate applicant never raised any objection in regards to mode of proof of cancellation deed before the Trial Court, as is evident from perusal of records and this must be held against him. 22. In support of our above conclusion, we may usefully refer to the ratio in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple (2003) 8 SCC 752 where Justice Ashok Bhan while dealing with the aspect of disallowing objection as to mode of proof at appellant stage as a rule of fair play to avoid prejudice to the other side, said as follows:- 20. …….…. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence……… (emphasis in original) 23. This Court in the opinion written by Justice S. H. Kapadia in Dayamathi Bai v. KM Shaffi (2004) 7 SCC 107 has similarly held that objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. Moreover, objection is to be taken before the document is marked as an exhibit and admitted in Court. 24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E. Venkatachala (Supra). 25. In consequence of above, we are of the considered opinion that the High Court had erred by ignoring the material evidence in disbelieving the Cancellation Deed and on that score declaring that the applicant is entitled to grant of probate of the Will (Ext. 2). Given the fact that Probate applicant never raised any objection regarding the mode of proof before the trial court, there was no occasion for the High Court to say that it was the duty of defendant to produce original deed of cancellation. The reliance therefore on the opinion of Lord Thankerton in Babu Anand Behari v. Dinshow & Co. AIR 1946 PC 24 is found to be unjustified. This is because in that case, the authenticity of some extract of power of attorney, was questioned but in the present case the certified copy of the registered cancellation deed is produced and most importantly, the same was not objected. Moreover, the plea of mode of proof was never raised before the trial Court and therefore High Courts reliance on aforementioned case to support the applicant is unacceptable. 26. On the basis of the above examination, it is our considered opinion that the Trial Court was right in holding that Rajendra was medically fit and had cancelled the Will himself. It is also seen that the evidences of the relevant OWs have withstood the scrutiny of the Trial Court and those have remained unshaken and should be trusted. Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, we find merit in the case of the objectors.
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PC 111 where the following was set out by the Privy Council.The defendants have now appealed to His Majestyin-Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the Will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrars office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention. (emphasis in original)22. In support of our above conclusion, we may usefully refer to the ratio in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple (2003) 8 SCC 752 where Justice Ashok Bhan while dealing with the aspect of disallowing objection as to mode of proof at appellant stage as a rule of fair play to avoid prejudice to the other side, said as follows:-20. …….…. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence……… (emphasis in original)23. This Court in the opinion written by Justice S. H. Kapadia in Dayamathi Bai v. KM Shaffi (2004) 7 SCC 107 has similarly held that objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. Moreover, objection is to be taken before the document is marked as an exhibit and admitted in Court.24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E. Venkatachala (Supra).25. In consequence of above, we are of the considered opinion that the High Court had erred by ignoring the material evidence in disbelieving the Cancellation Deed and on that score declaring that the applicant is entitled to grant of probate of the Will (Ext. 2). Given the fact that Probate applicant never raised any objection regarding the mode of proof before the trial court, there was no occasion for the High Court to say that it was the duty of defendant to produce original deed of cancellation. The reliance therefore on the opinion of Lord Thankerton in Babu Anand Behari v. Dinshow & Co. AIR 1946 PC 24 is found to be unjustified. This is because in that case, the authenticity of some extract of power of attorney, was questioned but in the present case the certified copy of the registered cancellation deed is produced and most importantly, the same was not objected. Moreover, the plea of mode of proof was never raised before the trial Court and therefore High Courts reliance on aforementioned case to support the applicant is unacceptable.26. On the basis of the above examination, it is our considered opinion that the Trial Court was right in holding that Rajendra was medically fit and had cancelled the Will himself. It is also seen that the evidences of the relevant OWs have withstood the scrutiny of the Trial Court and those have remained unshaken and should be trusted. Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, we find merit in the case of the objectors.
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Ashok Dulichand Vs. Madahavlal Dube & Another | No 2. the appellant had failed to prove that its contents were false to the knowledge of respondent No. 1 or that he did not believe them to be true. No corrupt practice as defined in Section 123 (4) of the Representation of the People Act was held to have been proved. Issues 10 (d) and (e) were held to be of no consequence in view of the fact that it was not proved that respondent No. 1 was guilty of corrupt practice. In the result the election petition was dismissed.6. In appeal before us Mr. Ghatate on behalf of the appellant has argued that the appellant wanted to file a photostat copy of the manuscript of leaflet P-4 which, according to the appellant, had been written by respondent No. 1. The High Court, it is pointed out, did not admit the aforesaid photostat copy in evidence on the ground that there was no sufficient reason for allowing the appellant to lead secondary evidence. It is that order of the High Court which has been the main target of the criticism of Mr. Ghatate.7. After hearing the learned Counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.8. The matter may also be looked at from another angle. There is no evidence on record to show that the contents of leaflet Ex. P-4 were false. Respondent No. 2 in relation to whose personal character and conduct statements were made in leaflet P-4 was not examined as a witness, No other evidence was also led of any person who knew about the character or conduct of respondent No. 2 to show that the statements contained in leaflet in question were false. The High Court consequently arrived at the conclusion that on the material on record it could not be held that the contents of the said leaflet were false and that respondent No. 1 believed them to be false or did not believe them to be true. As such, no corrupt practice as defined in Section 123 (4) of the Representation of the People Act, 1951, was held to have been proved, A corrupt practice, according to Section 123 (4), consists of the publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. Apart from the other requirements, it is of the essence of the matter that the impugned statement of fact in relation to the personal character or conduct of a candidate which is alleged to have been published should be false. Unless the said statement of fact is shown to be false, its publication would not constitute corrupt practice as defined in clause (4) of Section 123 of the Act. When there is complete absence of any material on the record to show that the impugned statement of fact is false, no occasion would plainly arise for remanding the case to the High Court to enable the appellant to produce in evidence the photostat copy in question with a view to show that the original of that had been written by the respondent. | 0[ds]7. After hearing the learned Counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.8. The matter may also be looked at from another angle. There is no evidence on record to show that the contents of leaflet Ex. P-4 were false. Respondent No. 2 in relation to whose personal character and conduct statements were made in leaflet P-4 was not examined as a witness, No other evidence was also led of any person who knew about the character or conduct of respondent No. 2 to show that the statements contained in leaflet in question were false. The High Court consequently arrived at the conclusion that on the material on record it could not be held that the contents of the said leaflet were false and that respondent No. 1 believed them to be false or did not believe them to be true. As such, no corrupt practice as defined in Section 123 (4) of the Representation of the People Act, 1951, was held to have been proved, A corrupt practice, according to Section 123 (4), consists of the publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. Apart from the other requirements, it is of the essence of the matter that the impugned statement of fact in relation to the personal character or conduct of a candidate which is alleged to have been published should be false. Unless the said statement of fact is shown to be false, its publication would not constitute corrupt practice as defined in clause (4) of Section 123 of the Act. When there is complete absence of any material on the record to show that the impugned statement of fact is false, no occasion would plainly arise for remanding the case to the High Court to enable the appellant to produce in evidence the photostat copy in question with a view to show that the original of that had been written by the respondent. | 0 | 2,112 | 900 | ### 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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No 2. the appellant had failed to prove that its contents were false to the knowledge of respondent No. 1 or that he did not believe them to be true. No corrupt practice as defined in Section 123 (4) of the Representation of the People Act was held to have been proved. Issues 10 (d) and (e) were held to be of no consequence in view of the fact that it was not proved that respondent No. 1 was guilty of corrupt practice. In the result the election petition was dismissed.6. In appeal before us Mr. Ghatate on behalf of the appellant has argued that the appellant wanted to file a photostat copy of the manuscript of leaflet P-4 which, according to the appellant, had been written by respondent No. 1. The High Court, it is pointed out, did not admit the aforesaid photostat copy in evidence on the ground that there was no sufficient reason for allowing the appellant to lead secondary evidence. It is that order of the High Court which has been the main target of the criticism of Mr. Ghatate.7. After hearing the learned Counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.8. The matter may also be looked at from another angle. There is no evidence on record to show that the contents of leaflet Ex. P-4 were false. Respondent No. 2 in relation to whose personal character and conduct statements were made in leaflet P-4 was not examined as a witness, No other evidence was also led of any person who knew about the character or conduct of respondent No. 2 to show that the statements contained in leaflet in question were false. The High Court consequently arrived at the conclusion that on the material on record it could not be held that the contents of the said leaflet were false and that respondent No. 1 believed them to be false or did not believe them to be true. As such, no corrupt practice as defined in Section 123 (4) of the Representation of the People Act, 1951, was held to have been proved, A corrupt practice, according to Section 123 (4), consists of the publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. Apart from the other requirements, it is of the essence of the matter that the impugned statement of fact in relation to the personal character or conduct of a candidate which is alleged to have been published should be false. Unless the said statement of fact is shown to be false, its publication would not constitute corrupt practice as defined in clause (4) of Section 123 of the Act. When there is complete absence of any material on the record to show that the impugned statement of fact is false, no occasion would plainly arise for remanding the case to the High Court to enable the appellant to produce in evidence the photostat copy in question with a view to show that the original of that had been written by the respondent.
### Response:
0
### Explanation:
7. After hearing the learned Counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.8. The matter may also be looked at from another angle. There is no evidence on record to show that the contents of leaflet Ex. P-4 were false. Respondent No. 2 in relation to whose personal character and conduct statements were made in leaflet P-4 was not examined as a witness, No other evidence was also led of any person who knew about the character or conduct of respondent No. 2 to show that the statements contained in leaflet in question were false. The High Court consequently arrived at the conclusion that on the material on record it could not be held that the contents of the said leaflet were false and that respondent No. 1 believed them to be false or did not believe them to be true. As such, no corrupt practice as defined in Section 123 (4) of the Representation of the People Act, 1951, was held to have been proved, A corrupt practice, according to Section 123 (4), consists of the publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. Apart from the other requirements, it is of the essence of the matter that the impugned statement of fact in relation to the personal character or conduct of a candidate which is alleged to have been published should be false. Unless the said statement of fact is shown to be false, its publication would not constitute corrupt practice as defined in clause (4) of Section 123 of the Act. When there is complete absence of any material on the record to show that the impugned statement of fact is false, no occasion would plainly arise for remanding the case to the High Court to enable the appellant to produce in evidence the photostat copy in question with a view to show that the original of that had been written by the respondent.
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Subhendu Prosad Roy Choudhury and Others Vs. Kamala Bala Roy Choudhury and Others | UNTWALIA, J.1. This is a landlords appeal by special leave. They had filed a petition in the year 1958 in the Court of the Munsif at Alipore under Section 5 of the Calcutta Thika Tenancy Act, 1949 as it then stood after serving a notice on the tenant-respondents to quit in accordance with Section 4. The ground for eviction was as provided in Section 3(iv) of the said Act. The application was allowed by the Munsif but was dismissed on appeal by the tenants by the subordinate Judge. He took the view that the notice given on the 8th January, 1958 was not given on behalf of all the co-owner landlords as the name of one of the minor co-owner landlord was not mentioned at the foot of the notice. The landlords challenged the order of the subordinate Judge in the Calcutta High Court but were unsuccessful. Hence this appeal.2. We have examined the original notice dated January 8, 1958. In the paper-book as printed there is a slight inaccuracy. On examination of the original notice what is clear is that the notice was from and on behalf of all the co-owner landlords including all the minors as mentioned at the top of the notice. At the foot signatures were appended. Sobhandu Prosad Roy Choudhury signed for self and constituted attorney of the other landlords mentioned at the top. On behalf of minor Swapundra Prosad Roy Choudhury his guardian and mother Smt. Lilawati Devi Choudhurani had signed the notice. It was also signed by Raja Prosad Roy Choudhury whose minor son is Kumar Debapriya Prosad Roy Choudhury mentioned at serial 9 at the top of the notice. In our opinion the notice was signed and given by and on behalf of all the Co-owner landlords including all the minors. It was not necessary for Raja Prosad Roy Choudhury to specifically say at the foot of the notice that he was signing it on behalf of his minor son also, specially when the name of the minor had been mentioned at serial 9 at the top. In our judgment, therefore, the view of the appellate authority as also of the High Court that notice on behalf of Kumar Debapriya Roy Choudhury was not given in erroneous. Even assuming that notice was not given on behalf of one of the co-owner landlords, the decision of this Court in Sri Ram Pasricha v. Jagannath ((1977) 1 SCR 395 : (1976) 4 SCC 184 ) would show that yet the notice was good and valid.3. Even then, we are unable to pass any final order in this appeal because the Calcutta Thika Tenancy (Second Amendment) Act, 1969 (West Bengal Act 29 of 1969) has in the meantime come into force after the impugned decision of the Calcutta High Court. Section 7-A of the amending Act confers power on the controller to set aside the order for ejectment in certain cases and to decide the matter afresh in the light of the amended law including the substantial amendment made in Section 3. Section 13 of the amending Act runs as follows :"13. Provisions to apply to pending applications and appeals. - The amendments made to the said Act by this Act shall have effect in respect of all applications for ejectment of thika tenants, and all appeals from orders made on such applications, under the provisions of the said Act which are pending at the commencement of this Act." | 1[ds]In our opinion the notice was signed and given by and on behalf of all thelandlords including all the minors. It was not necessary for Raja Prosad Roy Choudhury to specifically say at the foot of the notice that he was signing it on behalf of his minor son also, specially when the name of the minor had been mentioned at serial 9 at the top. In our judgment, therefore, the view of the appellate authority as also of the High Court that notice on behalf of Kumar Debapriya Roy Choudhury was not given in erroneous. Even assuming that notice was not given on behalf of one of thelandlords, the decision of this Court in Sri Ram Pasricha v. Jagannath ((1977) 1 SCR 395 : (1976) 4 SCC 184 ) would show that yet the notice was good and valid. | 1 | 626 | 157 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
UNTWALIA, J.1. This is a landlords appeal by special leave. They had filed a petition in the year 1958 in the Court of the Munsif at Alipore under Section 5 of the Calcutta Thika Tenancy Act, 1949 as it then stood after serving a notice on the tenant-respondents to quit in accordance with Section 4. The ground for eviction was as provided in Section 3(iv) of the said Act. The application was allowed by the Munsif but was dismissed on appeal by the tenants by the subordinate Judge. He took the view that the notice given on the 8th January, 1958 was not given on behalf of all the co-owner landlords as the name of one of the minor co-owner landlord was not mentioned at the foot of the notice. The landlords challenged the order of the subordinate Judge in the Calcutta High Court but were unsuccessful. Hence this appeal.2. We have examined the original notice dated January 8, 1958. In the paper-book as printed there is a slight inaccuracy. On examination of the original notice what is clear is that the notice was from and on behalf of all the co-owner landlords including all the minors as mentioned at the top of the notice. At the foot signatures were appended. Sobhandu Prosad Roy Choudhury signed for self and constituted attorney of the other landlords mentioned at the top. On behalf of minor Swapundra Prosad Roy Choudhury his guardian and mother Smt. Lilawati Devi Choudhurani had signed the notice. It was also signed by Raja Prosad Roy Choudhury whose minor son is Kumar Debapriya Prosad Roy Choudhury mentioned at serial 9 at the top of the notice. In our opinion the notice was signed and given by and on behalf of all the Co-owner landlords including all the minors. It was not necessary for Raja Prosad Roy Choudhury to specifically say at the foot of the notice that he was signing it on behalf of his minor son also, specially when the name of the minor had been mentioned at serial 9 at the top. In our judgment, therefore, the view of the appellate authority as also of the High Court that notice on behalf of Kumar Debapriya Roy Choudhury was not given in erroneous. Even assuming that notice was not given on behalf of one of the co-owner landlords, the decision of this Court in Sri Ram Pasricha v. Jagannath ((1977) 1 SCR 395 : (1976) 4 SCC 184 ) would show that yet the notice was good and valid.3. Even then, we are unable to pass any final order in this appeal because the Calcutta Thika Tenancy (Second Amendment) Act, 1969 (West Bengal Act 29 of 1969) has in the meantime come into force after the impugned decision of the Calcutta High Court. Section 7-A of the amending Act confers power on the controller to set aside the order for ejectment in certain cases and to decide the matter afresh in the light of the amended law including the substantial amendment made in Section 3. Section 13 of the amending Act runs as follows :"13. Provisions to apply to pending applications and appeals. - The amendments made to the said Act by this Act shall have effect in respect of all applications for ejectment of thika tenants, and all appeals from orders made on such applications, under the provisions of the said Act which are pending at the commencement of this Act."
### Response:
1
### Explanation:
In our opinion the notice was signed and given by and on behalf of all thelandlords including all the minors. It was not necessary for Raja Prosad Roy Choudhury to specifically say at the foot of the notice that he was signing it on behalf of his minor son also, specially when the name of the minor had been mentioned at serial 9 at the top. In our judgment, therefore, the view of the appellate authority as also of the High Court that notice on behalf of Kumar Debapriya Roy Choudhury was not given in erroneous. Even assuming that notice was not given on behalf of one of thelandlords, the decision of this Court in Sri Ram Pasricha v. Jagannath ((1977) 1 SCR 395 : (1976) 4 SCC 184 ) would show that yet the notice was good and valid.
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